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Full-Text Articles in Law
The New Privity In Personal Jurisdiction, Alexandra Lahav
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 …
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Faculty Articles and Papers
No abstract provided.
The Jury And Participatory Democracy, Alexandra Lahav
The Jury And Participatory Democracy, Alexandra Lahav
Faculty Articles and Papers
Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.
Due Process And The Future Of Class Actions, Alexandra Lahav
Due Process And The Future Of Class Actions, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
Symmetry And Class Action Litigation, Alexandra Lahav
Symmetry And Class Action Litigation, Alexandra Lahav
Faculty Articles and Papers
In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to equalize resources between individual plaintiffs and organizational defendants by allowing plaintiffs to pool their claims. Current developments of class action doctrine, however, reinforce in the courtroom the asymmetry that exists between individual plaintiffs and organizational defendants outside the court. This Article explores these trends and the questions they raise. …
Six Degrees Of Separation: From Derivative Suits To Shareholder Class Actions, Ángel Oquendo
Six Degrees Of Separation: From Derivative Suits To Shareholder Class Actions, Ángel Oquendo
Faculty Articles and Papers
Trans-individual litigation has revolutionized modern law. It has radically altered the manner of assertion and adjudication of legal claims. Beyond concerning a large number of people, the underlying suits operate in a unique fashion. In particular, they call for the constant protection of the interests of the parties on whose behalf the plaintiffs purport to speak. Not surprisingly, corporate law has partaken in this phenomenon. For instance, derivative suits allow individuals to sue for a larger collectivity, somewhat along the lines of the citizen suits established over a century later. Of course, they entertain the claims of the corporation, rather …
Rites Without Rights: A Tale Of Two Military Commissions, Alexandra Lahav
Rites Without Rights: A Tale Of Two Military Commissions, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
The Case For Trial By Formula, Alexandra Lahav
The Case For Trial By Formula, Alexandra Lahav
Faculty Articles and Papers
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem …
Two Views Of Class Action, Alexandra Lahav
Two Views Of Class Action, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav
Faculty Articles and Papers
This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. …
Upping The Ante: Collective Litigation In Latin America, Ángel Oquendo
Upping The Ante: Collective Litigation In Latin America, Ángel Oquendo
Faculty Articles and Papers
This work contends that Latin America has launched a true revolution on collective rights: moving beyond the paradigm of group entitlements, which concern a determinate — though potentially enormous — collectivity, to that of diffuse entitlements, which generally pertain to society as a whole. Latin American jurisdictions have created innovative procedural mechanisms in this area: the collective writ of protection for the realization of group rights, the popular action for the civic vindication of diffuse entitlements, and the public civil action for the official enforcement of both kinds of rights. The U.S. legal order has much to learn from a …
Bellwether Trials, Alexandra Lahav
Bellwether Trials, Alexandra Lahav
Faculty Articles and Papers
At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates group typical justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative …
Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav
Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav
Faculty Articles and Papers
This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for …
Fundamental Principles For Class Action Governance, Alexandra Lahav
Fundamental Principles For Class Action Governance, Alexandra Lahav
Faculty Articles and Papers
Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This …
., Administrative Channeling Under The Medicare Act Clarified: Illinois Council, Section 45(H), And The Application Of Congressional Intent, John Aloysius Cogan, Jr., Rodney A. Johnson
., Administrative Channeling Under The Medicare Act Clarified: Illinois Council, Section 45(H), And The Application Of Congressional Intent, John Aloysius Cogan, Jr., Rodney A. Johnson
Faculty Articles and Papers
In non-legal terms, subject matter jurisdiction is much like your American Express card. You cannot "leave home without it." This is especially true if you represent a Medicare provider or supplier and intend to sue on a Medicare claim. To be sure, your well-pleaded complaint alleges several bases for the federal district court's subject matter jurisdiction, including, but not limited to, 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (federal defendant jurisdiction), 28 U.S.C. § 1361 (mandamus), and 5 U.S.C. § 702 (the Administrative Procedures Act). Perhaps, your complaint is brought in the context of an adversary …
Nafta's Procedural Narrow-Mindedness: The Panel Review Of Antidumping And Countervailing Duty Determinations Under Chapter Nineteen, Ángel Oquendo
Nafta's Procedural Narrow-Mindedness: The Panel Review Of Antidumping And Countervailing Duty Determinations Under Chapter Nineteen, Ángel Oquendo
Faculty Articles and Papers
No abstract provided.
Making Sense Of The Prejudgment Seizure Cases, Richard Kay, Harold M. Lubin
Making Sense Of The Prejudgment Seizure Cases, Richard Kay, Harold M. Lubin
Faculty Articles and Papers
The purpose of this article is to examine critically four recent Supreme Court cases on prejudgment seizure, Sniadach v. Family Finance Corp., Fuentes v. Shevin, Mitchell v. W. T. Grant Co., and North Georgia Finishing, Inc. v. Di-Chem, Inc. These cases have been cited as an arch-example of inconsistency, even irrationality, in constitutional doctrine. Members of the Supreme Court and numerous scholars have expressed chagrin at the apparent irresponsible obscurity at this difficult intersection of creditors' remedies and constitutional rights. We believe, however, that the search for reasonable and rational constitutional standards is not a hopeless …
Rule-Making Authority And Separation Of Powers In Connecticut, The, Richard Kay
Rule-Making Authority And Separation Of Powers In Connecticut, The, Richard Kay
Faculty Articles and Papers
No abstract provided.