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Articles 31 - 49 of 49
Full-Text Articles in Law
Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont
Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont
Kevin M. Clermont
No abstract provided.
Class Certification’S Preclusive Effects, Kevin M. Clermont
Class Certification’S Preclusive Effects, Kevin M. Clermont
Kevin M. Clermont
In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Essay answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the more established doctrine of jurisdiction to determine no jurisdiction: if a court’s finding of no jurisdiction over the subject matter or the person can preclude, then a finding of no authority …
Trial By Jury Or Judge: Transcending Empiricism , Kevin M. Clermont, Theodore Eisenberg
Trial By Jury Or Judge: Transcending Empiricism , Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
No abstract provided.
Xenophilia Or Xenophobia In American Courts? Before And After 9/11, Kevin M. Clermont, Theodore Eisenberg
Xenophilia Or Xenophobia In American Courts? Before And After 9/11, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of …
Teaching Civil Procedure Through Its Top Ten Cases, Plus Or Minus Two, Kevin M. Clermont
Teaching Civil Procedure Through Its Top Ten Cases, Plus Or Minus Two, Kevin M. Clermont
Kevin M. Clermont
The thesis is that Civil Procedure teachers should give more attention to the subject's landmark cases. Law teachers' common sense and cognitive scientists' schema theory lend support to that thesis. The pedagogic implications of that thesis call for an enriched case method, the essence of which is teaching a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in a rich context. The optimal sources of that context are written case studies, assigned as intermittent supplementation.
Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer
Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer
Kevin M. Clermont
Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …
Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont
Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont
Kevin M. Clermont
"Jurisdiction must become venue," concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing. At …
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin Clermont, Stewart Schwab
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin Clermont, Stewart Schwab
Kevin M. Clermont
This article presents the full range of information that the Administrative Office’s data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants …
Procedure’S Magical Number Three Psychological Bases For Standards Of Decision, Kevin M. Clermont
Procedure’S Magical Number Three Psychological Bases For Standards Of Decision, Kevin M. Clermont
Kevin M. Clermont
No abstract provided.
Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Kevin M. Clermont
This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge. The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …
Class Certification's Preclusive Effects, Kevin M. Clermont
Class Certification's Preclusive Effects, Kevin M. Clermont
Kevin M. Clermont
No abstract provided.
Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab
Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab
Kevin M. Clermont
This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.
Federal Habeas Corpus, Kevin M. Clermont
Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin Clermont, Theodore Eisenberg
Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin Clermont, Theodore Eisenberg
Kevin M. Clermont
This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Kevin M. Clermont
This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial. As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system’s French …
Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin Clermont
Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin Clermont
Kevin M. Clermont
The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof. I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form …
Jurisdictional Salvation And The Hague Treaty , Kevin M. Clermont
Jurisdictional Salvation And The Hague Treaty , Kevin M. Clermont
Kevin M. Clermont
No abstract provided.
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Kevin M. Clermont
So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work. Part I of this essay describes the role of the number three in procedure, with particular regard to standards …
Trial By Jury Or Judge: Transcending Empiricism, Kevin M. Clermont, Theodore Eisenberg
Trial By Jury Or Judge: Transcending Empiricism, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the first large-scale comparison of plaintiff win rates and recoveries in civil cases tried before juries and judges. In two of the most controversial areas of modern tort law--product liability and medical malpractice--the win rates substantially differ from other cases' win …