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2009

Civil Procedure

Institution
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Articles 1 - 30 of 58

Full-Text Articles in Law

Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach Nov 2009

Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach

Faculty Scholarship Series

We analyze liability rules in a setting where injurers are potentially insolvent and where negligence standards may deviate from the socially optimal level. We show that proportional liability, which sets the measure of damages equal to the harm multiplied by the probability that it was caused by an injurer’s negligence, is preferable to other existing negligence-based rules. Moreover, proportional liability outperforms strict liability if the standard of due care is not set too low. Our analysis also suggests that courts should rely on statistical evidence and bar individualized causal claims that link the harm suffered by a plaintiff to ...


Summary Of Nc-Dsh, Inc. V. Garner, 125 Nev. Adv. Op. No. 50, Amy C. Ma Oct 2009

Summary Of Nc-Dsh, Inc. V. Garner, 125 Nev. Adv. Op. No. 50, Amy C. Ma

Nevada Supreme Court Summaries

Appeal from a district court order vacating a stipulated final judgment under NRCP 60(b) for fraud on the court.


Understanding Pleading Doctrine, A. Benjamin Spencer Oct 2009

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine ...


There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch Oct 2009

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Scholarly Works

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.


Imagining Judges That Apply Law: How They Might Do It, James Maxeiner Oct 2009

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts ...


Plausibly Pleading Personal Jurisdiction, Jayne S. Ressler Oct 2009

Plausibly Pleading Personal Jurisdiction, Jayne S. Ressler

Faculty Scholarship

No abstract provided.


Summary Of In Re Estate Of Miller, 125 Nev. Adv. Op. 42, Daniel M. Ryan Sep 2009

Summary Of In Re Estate Of Miller, 125 Nev. Adv. Op. 42, Daniel M. Ryan

Nevada Supreme Court Summaries

This case is an appeal and cross-appeal from the district court’s order denying the defendant’s motion for attorney fees but awarding costs in a case pertaining to the distribution of the decedent’s (Rose Miller’s) estate.


Summary Of Bower V. Harrah’S Laughlin, Inc., 125 Nev. Adv. Op. No. 37, John Ward Sep 2009

Summary Of Bower V. Harrah’S Laughlin, Inc., 125 Nev. Adv. Op. No. 37, John Ward

Nevada Supreme Court Summaries

No abstract provided.


Sunshine In Litigation Act Of 2009: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., June 4, 2009 (Statement Of Sherman L. Cohn, Prof. Of Law, Geo. U. L. Center), Sherman L. Cohn Jun 2009

Sunshine In Litigation Act Of 2009: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., June 4, 2009 (Statement Of Sherman L. Cohn, Prof. Of Law, Geo. U. L. Center), Sherman L. Cohn

Testimony Before Congress

I urge that the issue before the Congress in the proposed “Sunshine in Litigation Act of 2009” is really one of social values and a choice to be made among various values and that that is a substantive matter rather than a mere matter of procedure. It is a choice among values that Congress, the legislative arm of the federal government, is charged with making and in this case should make.


Liability: How To Stay Out Of Court, Stephanie Keene, Emily Dillard, Kyanna Coffee, Jeremy Jenkins Apr 2009

Liability: How To Stay Out Of Court, Stephanie Keene, Emily Dillard, Kyanna Coffee, Jeremy Jenkins

Parameters of Law in Student Affairs and Higher Education (CNS 670)

Liability can be defined as being held legally responsible for an incident that may occur. As student affairs professionals, one must be very cautious as to stay out of court. Every word or action a student affairs professional does may be scrutinized and twisted to make them or their given university legally responsible for any adverse incidents that they may have had some involvement with. Incidents which student affairs professionals may be held responsible for can range anywhere from student deaths to expulsion/removal from school and much more. This handbook is designed to better educate you about liability and ...


Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle Apr 2009

Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments in long-arm jurisdiction under CPLR section 302 and two related New York Court of Appeals decisions. Specifically, the article will address Fischbarg v. Doucet, which presents the court's expansive view of long-arm jurisdiction in light of recent technological developments, and Ehrenfeld v. Mahfouz, in which the court's decision to limit long-arm jurisdiction was rejected by subsequent legislation, signaling a more expansive application of CPLR 302 in the future.


The Partially Prudential Doctrine Of Mootness, Matthew I. Hall Apr 2009

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Scholarly Works

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve ...


Diversity And Discrimination: A Look At Complex Bias, Minna Kotkin Apr 2009

Diversity And Discrimination: A Look At Complex Bias, Minna Kotkin

Faculty Scholarship

No abstract provided.


Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah J. Challener, John B. Howell Iii Mar 2009

Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah J. Challener, John B. Howell Iii

NULR Online

No abstract provided.


What Is Specific About Specific Restitution, Colleen P. Murphy Mar 2009

What Is Specific About Specific Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.


Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr. Mar 2009

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. 6, Daniel M. Ryan Feb 2009

Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. 6, Daniel M. Ryan

Nevada Supreme Court Summaries

This case pertained to a contracts action. Appellants appealed the district court’s decision to strike the appellants’ pleadings and enter a default judgment against them as a discovery sanction, as well as the district court’s decision to award compensatory damages and attorney and special master fees to the appellees


The Death Of The American Trial, Robert P. Burns Jan 2009

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.


Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Jan 2009

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Cornell Law Faculty Publications

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.


Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer Jan 2009

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Scholarly Articles

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states. This limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal ...


Understanding Pleading Doctrine, A. Benjamin Spencer Jan 2009

Understanding Pleading Doctrine, A. Benjamin Spencer

Scholarly Articles

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has been illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine ...


Lessons From The Special Court For Sierra Leone On The Prosecution Of Gender-Based Crimes, Valerie Oosterveld Jan 2009

Lessons From The Special Court For Sierra Leone On The Prosecution Of Gender-Based Crimes, Valerie Oosterveld

Law Publications

No abstract provided.


Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala Jan 2009

Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


10 Tips For Getting Jurors To Talk, Maureen A. Howard Jan 2009

10 Tips For Getting Jurors To Talk, Maureen A. Howard

Articles

“Jury selection” is a misnomer because lawyers don’t actually get to “select” ideal jurors; they get a limited opportunity to “deselect” the worst prospective jurors. The goal of voir dire is to identify these jurors by uncovering their attitudes, beliefs, opinions, preconceptions, biases, and prejudices. To accomplish this, a lawyer has a difficult task: she must foster an honest, intimate conversation among strangers in a very public, formal environment.

Even honest jurors may give misleading answers during voir dire due to nervousness, inattention, faulty memory, or misunderstanding. The formal courtroom atmosphere can have a chilling effect at odds with ...


Victor Stanley, Inc. V. Creative Pipe, Inc.: How To Utilize Rule 502 To Prevent Inadvertent Disclosure And Reduce Discovery Costs In An Age Of Electronically Stored Information, Michael J. Christin Jan 2009

Victor Stanley, Inc. V. Creative Pipe, Inc.: How To Utilize Rule 502 To Prevent Inadvertent Disclosure And Reduce Discovery Costs In An Age Of Electronically Stored Information, Michael J. Christin

Maryland Law Review Online

No abstract provided.


The Electronic Lawyer, Richard L. Marcus Jan 2009

The Electronic Lawyer, Richard L. Marcus

Faculty Scholarship

No abstract provided.


Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux Jan 2009

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Articles

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in ...


Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii Jan 2009

Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii

Journal Articles

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio. We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims. Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them. After establishing that Cohill remands are not subject-matter jurisdictional and ...


Upping The Ante: Collective Litigation In Latin America, Ángel Oquendo Jan 2009

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 comparative ...


Switzerland, Samuel P. Baumgartner Jan 2009

Switzerland, Samuel P. Baumgartner

Akron Law Publications

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.