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Full-Text Articles in Law
Litigation Realities Redux, Kevin M. Clermont
Litigation Realities Redux, Kevin M. Clermont
Cornell Law Faculty Publications
Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …
Introduction To Secrecy In Litigation (Symposium Editor), Nancy S. Marder
Introduction To Secrecy In Litigation (Symposium Editor), Nancy S. Marder
All Faculty Scholarship
No abstract provided.
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
All Faculty Scholarship
In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill
Working Paper Series
This article examines the ethical dimensions of the controversy over no-citation rules and current publication practices. In the literature concerning that controversy, ethical concerns are often mentioned, but usually in tandem with other concerns. Professor Caudill isolates and categorizes the different types of ethical dilemmas, and demonstrates that at different levels of the controversy, the ethical concerns are different. He identifies three levels--the controversy over no-citation rules, the broader controversy over publication practices, and the even broader controversy over privatization of law (the so-called disappearing trial, ADR, and the end of law as we know it).
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan
Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …
You Can’T Tear It Down: The Origins Of The D.C. Historic Preservation Act, Jeremy W. Dutra
You Can’T Tear It Down: The Origins Of The D.C. Historic Preservation Act, Jeremy W. Dutra
Georgetown Law Historic Preservation Papers Series
No abstract provided.
The Roles Of Litigation, Stephen B. Burbank
The Roles Of Litigation, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …
Refracting The Spectrum Of Clean Water Act Standing In Light Of Lujan V. Defenders Of Wildlife, Karl S. Coplan
Refracting The Spectrum Of Clean Water Act Standing In Light Of Lujan V. Defenders Of Wildlife, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
First, this article will review the impetus and purposes for the Clean Water Act of 1972, including its citizen suit provision, particularly as these purposes relate to the elimination of specific harm or causation requirements in enforcement actions under its provisions. Second, this article will briefly review the basic elements of Article III standing requirements as enunciated by the Supreme Court, and the development of Supreme Court standing doctrine in environmental cases leading up to and including the Defenders of Wildlife decision. Then the article will survey the various approaches courts have taken in applying Article III standing doctrine to …
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …
An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk
An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk
All Faculty Scholarship
When plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule (each litigant bears its own litigation expenses) nor the British rule (the losing litigant pays the attorneys' fees of the winning litigant) would induce optimal decisions to bring suit. Plaintiffs may bring frivolous suits when litigation costs are small relative to the amount at stake; plaintiffs may not bring meritorious suits when litigation costs are large relative to this amount. More general fee-shifting rules are based not only on the identity of the winning party but also on how strong the court perceives the case to …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1992 Survey year, “new” legislation was enacted which fundamentally changes the procedure for commencement of some lawsuits. Effective December 31, 1992, all civil actions in supreme and county courts must be commenced by filing a summons and complaint or summons with notice. Several important amendments to the Civil Practice Law and Rules (“CPLR”) were enacted and effective January 1, 1993, new IAS and escrow check bouncing rules became effective. Additionally, there have been significant developments in the decisional law of statute of limitations, discovery, sanctions, and the legal profession. These and other areas should be of interest to …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year seventeen articles of the CPLR were amended and three new articles were added. Also, effective December 1, 1991, Congress has approved important amendments to the Federal Rules of Civil Procedure, Civil Justice Expenses and Delay Reduction Plans were adopted by the Board of Judges of the Southern and Eastern Districts of New York. Additionally, there have been significant developments in the decisional law of discovery, statute of limitations, sanctions, and res judicata. These and other areas should be of interest to the practitioner.
New York Civil Practice, Jay C. Carlisle
New York Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year, the New York Court of Appeals issued important opinions with respect to strict compliance for service of process, the foreign object exception under CPLR 214-a, and disclosure against corporate employees. The Court also imposed sanctions for the first time under Part 130 of the Uniform Rules, and ruled that issue preclusion could be given to a criminal conviction to preclude subsequent civil litigation. In addition the Court recognized that substituted service could be used against a criminal contemnor. New York appellate courts issued instructive decisions regarding long-arm jurisdiction, forum non conveniens, and discovery of surveillance videos. …
Rewriting History: The Propriety Of Eradicating Prior Decisional Law Through Settlement And Vacatur, Jill E. Fisch
Rewriting History: The Propriety Of Eradicating Prior Decisional Law Through Settlement And Vacatur, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year the New York Court of Appeals upheld the constitutionality of the state toxic tort revivor statute and adopted the market share theory in DES cases. The court also gave the bar a Christmas present in Tewari v. Tsoutsouros3 and clarified important discovery issues .Two appellate courts held that the AIDS virus falls within New York Civil Practice Law and Rules ("CPLR") 214-c and issued important decisions in notice of claims cases.6Also, several trial courts actively applied new sanctions rules. Perhaps the most important developments during the Survey year were the bench and bar proposals relating to …
"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg
"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
This Article will address primarily the lack of textual and historical support for the Court's narrow construction of jurisdictional provisions that cause it to deny the existence of jurisdiction. In addition, the Article will briefly describe the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share democratic theory and institutional legitimacy concerns that Professor Redish will address, but let me respectfully suggest that these issues are best understood in light of the congressional thought underlying the Title 28 authorizations.
Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg
Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents paint necessarily touches …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1988 Survey year, new sanction rules, effective January 1, 1989, were approved by the Court of Appeals, several Uniform Rules were amended: and existing rules applied by our courts. New legislation was also passed relating to a comprehensive Interest On Lawyers Account (IOLA). The Court of Appeals abolished the fiduciary shield doctrine: limited the reach of our long-arm statute (CPLR 302(a)(1)) in defamation actions: and ruled that motions to dismiss cannot be converted into summary judgments without notice to all parties. The Court of Appeals also refined the doctrine of issue preclusion, which has recently been expanded, and …
History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin
History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In a recent article, we proposed that the Declaratory Judgment Act of 1934 was intended, contrary to the Supreme Court's long-standing interpretation, to enlarge the subject matter jurisdiction of the federal courts. When Congress considered the Act, jurisdictional concerns centered around whether declaratory judgments would violate the case-or-controversy clause, not whether introduction of the device would expand the federal question jurisdiction Congress already had authorized. There is, indeed, substantial evidence that Congress intended to expand federal question jurisdiction to include at least two, and possibly three, case models; there is virtually no evidence supporting the contrary position taken by the …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
While 1986 was a watershed year for the CPLR practitioner, 1987 passed with what one prominent commentator has referred "a yawn." Nonetheless, there were several important amendments to the CPLR in 1987 and our courts produced more than a few ''drab” opinions worthy of discussion. Furthermore, the bar and bench should rejoice because this year's Survey marks the twenty-fifth anniversary of the CPLR and the fiftieth anniversary of the Federal Rules of Civil Procedure. It is also the sixty-fifth year since a commentator first reviewed significant developments in New York civil practice.
The Costs Of Complexity, Stephen B. Burbank
The Costs Of Complexity, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year, legislation was enacted relating to twenty-seven of the sixty-five articles of the CPLR. Additionally, there have been significant developments in the decisional law of res judicata. These and other areas should be of interest to the practitioner.
Civil Practice: Comparative Negligence, Jay C. Carlisle
Civil Practice: Comparative Negligence, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
Recent decisional law by the Court of Appeals has placed new limits on the applicability of article 14-A to some assumption of risk cases, to matters involving some labor law violations, and to violations of legal prohibitions. These limitations are important to the practitioner representing clients who seek to benefit from New York's comparative negligence statute.