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Full-Text Articles in Law
Defining The Problem Of Cost In Federal Civil Litigation, Emery G. Lee Iii, Thomas E. Willging
Defining The Problem Of Cost In Federal Civil Litigation, Emery G. Lee Iii, Thomas E. Willging
Duke Law Journal
No abstract provided.
Discovering A Better Way: The Need For Effective Civil Litigation Reform, John H. Beisner
Discovering A Better Way: The Need For Effective Civil Litigation Reform, John H. Beisner
Duke Law Journal
This Article addresses the myriad problems posed by unfettered discovery in the United States Rather than promoting fairness and efficiency in the American legal system, plaintiffs today often use discovery in an abusive and vexatious manner to coerce defendants into accepting quick settlements Over the past several decades, discovery has expanded in both scope and magnitude such that discovery costs now account for at least half of the total litigation costs in any given case The advent of electronic discovery has only exacerbated the problem, given the sheer number of electronic documents generated in the course of business and the …
Politics And Civil Procedure Rulemaking: Reflections On Experience, Paul D. Carrington
Politics And Civil Procedure Rulemaking: Reflections On Experience, Paul D. Carrington
Duke Law Journal
This Article is a reflection on personal experience as well as an account of what has happened to the Federal Rules of Civil Procedure in the most recent quarter century It observes that the Supreme Court of the United States has assigned to itself a role in making procedural law inconsistent with the Rules Enabling Act of 1934 or any more-recent utterance of Congress This procedural law made by the Court is responsive to the desire of business interests to weaken the ability of citizens to enforce laws enacted to protect them from business misconduct The Article concludes with the …
Merton And The Hot Tub: Scientific Conventions And Expert Evidence In Australian Civil Procedure, Gary Edmond
Merton And The Hot Tub: Scientific Conventions And Expert Evidence In Australian Civil Procedure, Gary Edmond
Law and Contemporary Problems
Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms. Here, Edmond describes how changes to Australian civil procedure, motivated by judicial concerns about …
The Constitutional Battle Over The Public Interest Litigant Exception To Rule 82, Abizer Zanzi
The Constitutional Battle Over The Public Interest Litigant Exception To Rule 82, Abizer Zanzi
Alaska Law Review
No abstract provided.
The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle
The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle
Law and Contemporary Problems
The Supreme Court has vastly expanded the applicability of arbitration legislation, making it applicable to many types of contracts to which the application of the revocability doctrine would make better sense. This article corrects the misunderstanding of the policies served by the common law rule and suggests the rule's revival for application to many of the contracts to which the Supreme Court has expanded the application of the Federal Arbitration Act.
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Law and Contemporary Problems
The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …
The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz
The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz
Law and Contemporary Problems
This article critically examines a sampling of arbitration agreements and the rules of the major arbitration service providers and concludes that the cost of arbitration is often prohibitively high, either because consumers simply cannot afford the fees attendant to filing and prosecuting a claim or because the costs of bringing a claim outweigh the benefits of any potential remedies.
Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham
Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham
Law and Contemporary Problems
This article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so and how these choices affect dispute outcomes.
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Law and Contemporary Problems
This article examines some of the cases in which courts have enforced arbitration clauses in personal injury litigation and considers why courts have reached the outcomes they have. It evaluates the ways that arbitration can disturb the traditional values of procedural justice, contractual fairness and the enforcement of tort-based duties. It suggests changes in the law regarding mandatory arbitration of personal injury claims and explores the extent to which change is possible.
Civil Justice Systems In Europe And The United States, Hein Kötz
Civil Justice Systems In Europe And The United States, Hein Kötz
Duke Journal of Comparative & International Law
No abstract provided.
The Civil Jury And American Democracy, Paul D. Carrington
The Civil Jury And American Democracy, Paul D. Carrington
Duke Journal of Comparative & International Law
No abstract provided.
Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle
Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle
Duke Law Journal
No abstract provided.
A Modest Reform For Federal Procedural Rulemaking, Carl Tobias
A Modest Reform For Federal Procedural Rulemaking, Carl Tobias
Law and Contemporary Problems
No abstract provided.
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Duke Law Journal
Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of …
Reconsidering The Sham Affidavit Doctrine, Collin J. Cox
Reconsidering The Sham Affidavit Doctrine, Collin J. Cox
Duke Law Journal
No abstract provided.
The Civil Jury In America, Stephan Landsman
The Civil Jury In America, Stephan Landsman
Law and Contemporary Problems
Landsman explores several questions about the function of the modern civil jury in America, including why juries have been given so important a place in the judicial process and how the jury ought to be constituted to carry ought its work.
“Guardian Of Civil Rights … Medieval Relic”: The Civil Jury In Canada, W. A. Bogart
“Guardian Of Civil Rights … Medieval Relic”: The Civil Jury In Canada, W. A. Bogart
Law and Contemporary Problems
Bogart offers some explanations of why Canadian civil juries exist only at the margins by examining the availability of civil juries, empirical evidence regarding their use and cost in Ontario Canada and academic and policy debates concerning their role.
Judging Rules, Ruling Judges, Stephen C. Yeazell
Judging Rules, Ruling Judges, Stephen C. Yeazell
Law and Contemporary Problems
Bureaucracy and complexity are not pejorative terms, but they are limiting terms, and it makes sense to examine the limitations that inhere in them. The US needs to return from a system of judicially created rules back to a system of judicially scrutinized rules.
Alaska Supreme Court, Alaska Court Of Appeals, U.S. District Court Of Appeals For The Ninth Circuit, And U.S. District Court For The District Of Alaska Year In Review, Gregory M. Bair, Mercedes J. Caravello, Michael J. Chiavalloti, Emily J. Grogan
Alaska Supreme Court, Alaska Court Of Appeals, U.S. District Court Of Appeals For The Ninth Circuit, And U.S. District Court For The District Of Alaska Year In Review, Gregory M. Bair, Mercedes J. Caravello, Michael J. Chiavalloti, Emily J. Grogan
Alaska Law Review
No abstract provided.
The Concept Of Substantial Proportionality In Title Ix Athletics Cases, Mary W. Gray
The Concept Of Substantial Proportionality In Title Ix Athletics Cases, Mary W. Gray
Duke Journal of Gender Law & Policy
I. Introduction In the past several years, four federal court decisions interpreting Title IX 1 have sent tremors through the collegiate athletic establishment. 2 In all of these cases, the courts found the universities to have failed to provide effec- tive accommodation for the athletic interests and abilities of their women students, as required by the regulations issued pursuant to Title IX. 3 Al- though the regulations state that such accommodation is only one of the factors to be considered in determining compliance with Title IX, it was because of deficiencies in this area that courts found the institutions in …
A New Confederacy? Disunionism In The Federal Courts, Paul D. Carrington
A New Confederacy? Disunionism In The Federal Courts, Paul D. Carrington
Duke Law Journal
No abstract provided.
Where The Twain Shall Meet: Standing And Remedy In Alaska Center For The Environment V. Browner, Carl E. Bruch
Where The Twain Shall Meet: Standing And Remedy In Alaska Center For The Environment V. Browner, Carl E. Bruch
Duke Environmental Law & Policy Forum
In 1994, the Ninth Circuit affirmed standing for citizens to sue to compel the EPA Administrator to undertake a statewide TMDL program. Although the citizens had standing for only some of the water-quality-limited waters in Alaska, the court held that the underlying cause of action was the EPA's failure to initiate the TMDL process for Alaska. This Note proposes that the court improperly reasoned its way to the correct holding. Like the EPA, the court confused standing to sue with the ultimate scope of the remedy. This Note proposes a three-step analysis to consider issues of standing and remedy. The …
Alaska Supreme Court And Court Of Appeals Year In Review 1994, Laura E. Fahey, Steven D. Moore, James P. Ursomarso
Alaska Supreme Court And Court Of Appeals Year In Review 1994, Laura E. Fahey, Steven D. Moore, James P. Ursomarso
Alaska Law Review
No abstract provided.
The Federal Rules Of Civil Procedure In The Context Of Transnational Law, George K. Walker
The Federal Rules Of Civil Procedure In The Context Of Transnational Law, George K. Walker
Law and Contemporary Problems
The development of exceptions in the Rules of Civil Procedure and federal statutes that apply only to litigants outside the US is explored. The Rules should not make exceptions on a blanket basis, as some proposals indicate.
Remarks, Peter H. Pfund
Remarks, Peter H. Pfund
Law and Contemporary Problems
The US proposal for the Hague Conference to prepare a recognition and enforcement convention is a proposal for multilateral negotiations by the member states of the Hague Conference that would involve many states besides the US.
Reflections On The Interface Of Treaties And Rules Of Procedure: Time For Federal “Long-Arm” Legislation, J. Dickson Phillips, Paul D. Carrington
Reflections On The Interface Of Treaties And Rules Of Procedure: Time For Federal “Long-Arm” Legislation, J. Dickson Phillips, Paul D. Carrington
Law and Contemporary Problems
Civil justice in the US is a primary means of law enforcement, and those who compete in the US economy ought, except in compelling circumstances, to be subject to the same modes of law enforcement as their US competitors. The five-tiered process for rulemaking regarding special accomodation of foreign interests is examined.
Pay Equity And Women’S Wage Increases: Success In The States, A Model For The Nation, Heidi I. Hartmann, Stephanie Aaronson
Pay Equity And Women’S Wage Increases: Success In The States, A Model For The Nation, Heidi I. Hartmann, Stephanie Aaronson
Duke Journal of Gender Law & Policy
By 1989, twenty states had implemented programs to raise the wages of workers in female-dominated job classes in their state civil services. A study of these pay equity programs, conducted by the Institute for Women's Policy Research and the Urban Institute, found that all twenty states were successful in closing the female/male wage gap without substantial negative side effects such as increased unemployment. The extent to which the states succeeded depended on many factors including how much money was spent, the proportion of women affected, and the standard to which female wages were raised. As women's responsibilities for their families' …
Rule 82 Revisited: Attorney Fee Shifting In Alaska, Kevin Michael Kordziel
Rule 82 Revisited: Attorney Fee Shifting In Alaska, Kevin Michael Kordziel
Alaska Law Review
No abstract provided.
Aggregating Litigation, Ralph K. Winter
Aggregating Litigation, Ralph K. Winter
Law and Contemporary Problems
A comment on Judith Resnik's article on the aggregation of civil cases is presented. The goals of aggregating litigation and the very circumstances in which aggregation works best in achieving those goals are discussed. The aggregation of personal injury cases is also discussed.