Law Commons^™

Mass Torts And Due Process, Sergio J. Campos

Articles

No abstract provided.

What If?: A Study Of Seminal Cases As If Decided In A Twombly/Iqbal Regime, Brooke D. Coleman

Faculty Articles

What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Articles

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …

The Inextricable Merits Problem In Personal Jurisdiction, Cassandra Burke Robertson

Faculty Publications

In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in …

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.

The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …

What’S Sovereignty Got To Do With It?: Due Process, Personal Jurisdiction And The Supreme Court, Wendy Collins Perdue

Law Faculty Publications

In this symposium contribution I do two things. First, I explore the relationship between sovereignty and due process in personal jurisdiction in some of the more problematic aspects of the Nicastro opinions. I conclude that, although at one time the concept of sovereignty provided an important analytic component of personal jurisdiction analysis, this is largely no longer true.

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Publications

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …

Tending To Potted Plants: The Professional Identity Vacuum In Garcetti V. Ceballos, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scholarly Works

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

Locking The Doors To Discovery? Assessing The Effects Of Twombly And Iqbal On Access To Discovery, Jonah B. Gelbach

All Faculty Scholarship

Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show …

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …

Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky

Faculty Scholarship

This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects …

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By conflating …

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …

Standing For Private Parties In Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, Bradford Mank

Faculty Articles and Other Publications

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to …

Secret Class Action Settlements, Rhonda Wasserman

Articles

This Article analyzes the phenomenon of secret class action settlements. To illustrate the practice, Part I undertakes a case study of a class action lawsuit that recently settled under seal. Part II seeks to ascertain the scope of the practice. Part II.A examines newspaper accounts describing class action settlements from around the country. Part II.B focuses on a single federal judicial district – the Western District of Pennsylvania – and seeks to ascertain the percentage of suits filed as class actions that were settled under seal. Having gained some understanding of the scope of the practice, the Article then seeks …

A Tea Party At The Hague?, Stephen B. Burbank

All Faculty Scholarship

In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States. …

Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton, Stephanos Bibas

All Faculty Scholarship

For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and …

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

Complex Dispute Resolution: Volume Iii: Introduction And Coda: International Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.

Yet mechanisms of enforcement attendant …

The Federal Rules Of Civil Settlement, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement

This Article begins by providing …

Private Parties, Legislators, And The Government's Mantle: On Intervention And Article Iii Standing, Suzanne B. Goldberg

Faculty Scholarship

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government’s mantle to satisfy Article III because the government’s standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. …

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Book Review: 'E-Discovery In Canada' By Todd J. Burke, Kelly Friedman, Andrew J. Mccreary, James Morton, Susan Nickle, Vincenzo Rondinelli, Glenn Smith, James Swanson & Susan Wortzman, Robert Currie

Articles, Book Chapters, & Popular Press

It is not hyperbolic to say that the proliferation of electronically stored information (ESI) is probably the most prominent change-harbinger and potential havoc-wreaker in civil litigation today — second only, perhaps, to the spiralling costs of litigation itself. Indeed, the practical and legal difficulties associated with the storage, gathering, preservation, disclosure and evidentiary use of ESI have the potential to act as a Trojan Horse, causing what would previously have been ordinary cases to implode under their weight. Increasing recognition of this is evident; electronic discovery (e-discovery) cases have begun to emerge in the reports, a successful co-operative effort by …

Erie And The Rules Of Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have long …

Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules …