Law Commons^™

Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The study examined and analyzed eviction filings and proceedings in Nebraska, with a specific focus on Lancaster County—the home to the State’s capital, Lincoln. The primary objective of this study is to place eviction proceedings under a microscope to gain a better understanding of the volume of evictions in Nebraska, and whether the statutorily mandated processes are being followed. The study also attempts to capture the impact of certain external factors present during the period examined. Such factors include the COVID-19 pandemic and various eviction moratoria in place during 2020 and 2021, as well as the increased availability of legal …

Civil Procedure Update 2022 (Handout And Slide Deck), Verónica C. Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

The New Privity In Personal Jurisdiction, Alexandra Lahav

Faculty Articles and Papers

Personal jurisdiction doctrine should be understood largely in relation to the substantive law. The doctrine makes sense when it is in harmony with state substantive law. It fails to cohere to the extent that it diverges from state substantive law. In the case of products liabilhiy law, which was at issue in the most recent personal jurisdiction case to come before the Court, personal jurisdiction doctrine attempts to balance the social obigation to produce safe products with immunity from suit. Until recently, the Roberts Court had failed to harmonize personal jurisdiction with substantive state law; indeed, it had usurped state …

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Journal Articles

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …

Charting A Course Past Spokeo And Transunion, Elizabeth Earle Beske

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s 5-4 decision in TransUnion LLC v. Ramirez has dramatically upended standing doctrine, apparently out of concern that any other move will invite congressional manipulation and give rise to even greater evils. The Court has done so at considerable cost. TransUnion’s concreteness inquiry leaves lower courts at sea, inviting them to substitute their own policy preferences for legislative will in frustration of the separation of powers. It curtails the deferential review of economic legislation the Court has employed since the New Deal. It circumscribes Congress’s ability to act proactively to respond to novel challenges. Bearing these costs, we …

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Articles in Law Reviews & Other Academic Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Swimming Up The Stream Of Commerce: How Plaintiffs In Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine, Lily S. Smith

Law Student Publications

"“The Court must periodically intervene in the perpetual battle between plaintiffs and corporations over personal jurisdiction, especially when one side has secured a competitive advantage. The time for such intervention has likely arrived.”

Emma is a resident of Billings, Montana, and she ordered the “Whitten 10-in-1, 8 Blade Onion Mincer, Chopper, Slicer, Cutter, Dicer, with Container” on Amazon. The product is a multifunctional kitchen tool that can chop, slice, cut, and dice your vegetable of choice. By pushing down on the container’s lid, the vegetable is forced through blades, resulting in perfectly cut vegetables. Via Amazon Prime, Emma received the …

Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer

Faculty Publications

On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

Litigating The Separation Of Powers, Elizabeth Earle Beske

Articles in Law Reviews & Other Academic Journals

The Roberts Court, in marked contrast to its predecessor, has embraced the role of the federal judiciary in resolving clashes between coordinate branches, but it has done so without adequately grappling with Rehnquist-era justiciability hurdles. Constrained by Raines v. Byrd, the 1997 case in which Chief Justice Rehnquist purported in broad strokes to shut down institutional standing, the Roberts Court has relied primarily on individual litigants to raise separation-of-powers claims as defenses in enforcement proceedings. Primary reliance on individual litigants is problematic. First, it is difficult to square with conventional conceptions of injury in fact. Individual litigants have traditionally …

Litigating The Separation Of Powers, Elizabeth Earle Beske

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Intangible Justice? Intellectual Property Disputes And Canadian Small Claims Courts, Anthony D. Rosborough, Reagan Seidler

Articles, Book Chapters, & Popular Press

This article investigates the jurisdiction and institutional competence of Canadian small claims courts and tribunals with respect to complex claims, and in particular, intellectual property (IP) claims. Recent research points to an increase in these types of claims. A doctrinal analysis finds small claims bodies have wide jurisdiction over intellectual property infringement, contract, and licensing disputes. They can also rule on issues of validity, though they cannot affect registrations in the databases of the Canadian Intellectual Property Office. Remedies including damages, accountings, and the recovery of infringing goods are available in many provinces. As to their capacity, the article assesses …

The Right To Jury Trial In Idaho Civil Cases: Origins, Purpose, And Selected Applications, John E. Rumel

Articles

No abstract provided.

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

UF Law Faculty Publications

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live.

Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

From Contacts To Relatedness: Invigorating The Promise Of "Fair Play And Substantial Justice" In Personal Jurisdiction Doctrine, Richard Freer

Faculty Articles

Personal jurisdiction is integral to access to justice. Without a convenient court, plaintiffs’ efforts to vindicate claims (and society’s interest in private enforcement of law) may be thwarted. After considerable engagement in between 1977 and 1990, the Supreme Court did not decide a personal jurisdiction case between 1990 and 2011. This Symposium addresses what the Court has done regarding personal jurisdiction in the “new era” that started in 2011. That year brought a specific jurisdiction decision, J. McIntyre Machinery, Ltd. v. Nicastro, and a general jurisdiction decision, Goodyear Dunlop Tires Operations, S.A. v. Brown. The former broke no …

The Roberts Court And Class Litigation: Revolution, Evolution, And Work To Be Done, Richard D. Freer

Faculty Articles

Since 2005, when John Roberts was appointed Chief Justice, there have been startling changes to the world of class actions. Jurisdictionally, the Class Action Fairness Act of 2005 fundamentally reconfigured the allocation of class litigation between federal and state courts. Federal Rule of Civil Procedure 23, the federal class action provision, has been amended three times in the Roberts years, once in a meaningful way. Our focus, however, is on what the Roberts Court has done in the class action world through its caselaw. On that score, we have a remarkable corpus. From Shady Grove Orthopedic Associates, P.A. v. …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Is It Time For A New Civil Rights Act? Pursuing Procedural Justice In The Federal Civil Court System, Suzette M. Malveaux

Publications

The United States has recently been engaged in some of the largest civil rights movements since the 1960s—from Black Lives Matter to #MeToo—and calls for justice for marginalized communities are stronger than ever. Many decry the longstanding violence and systemic discrimination such communities experience, and advocate for stronger substantive civil rights. What has received less attention, however, is the violence done to those rights by the U.S. Supreme Court's obstructionist civil procedural jurisprudence. Over the last half century, the Court has systemically eroded Americans' capacity to enforce such substantive rights in the civil court system. This erosion arcs away from …

Endangered Claims: How The U.S. Civil Procedure System Mimics The Wild, Suzette M. Malveaux

Publications

No abstract provided.

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

A Civil Shame: The Failure To Protect Due Process In Discretionary Immigration Bond Hearings, Stacy Brustin

Scholarly Articles

Over the last four years, the US Supreme Court has granted certiorari in four immigration bond review cases. The sheer number of cases the Court has recently considered underscores the significance of this area of immigration law. Each case centers on whether the Immigration and Nationality Act or the Constitution mandates a bond review hearing after prolonged detention. Yet these cases leave unresolved the issue of whether initial bond hearings themselves meet the due process threshold required of civil confinement proceedings. Federal circuit and district courts have addressed aspects of this question and found procedural due process violations. However, most …

Do Seven Members Of Congress Have Article Iii Standing To Sue The Executive Branch?: Why The D.C. Circuit’S Divided Decision In Maloney V. Murphy Was Wrongly Decided In Light Of Two Prior District Court Decisions And Historical Separation Of Powers Jurisprudence, Bradford Mank

Faculty Articles and Other Publications

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica K. Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Millions of debt cases are filed in the civil courts every year. In debt actions, asymmetrical representation is the norm, with the plaintiff almost always represented by counsel and the defendant very rarely so. A number of jurisdictions report that up to ninety-nine percent of defendants in debt cases appear pro se — a figure that calls into question the basic legitimacy of these proceedings.

Professor Daniel Wilf-Townsend’s central contribution to the literature on debt collection, and state civil justice more broadly, is to demonstrate through sophisticated empirics what has long been anecdotally reported: that a cluster of corporate plaintiffs …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.

This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts …

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

New Civil Procedure Rules In Singapore, Adeline Chong

Research Collection Yong Pung How School Of Law

No abstract provided.