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Articles 1 - 30 of 31
Full-Text Articles in Law
On War And Justice, Jeffrey C. Tuomala
On War And Justice, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
A Progress Report In Automatic Disclosure In The Federal Districts, Carl W. Tobias
A Progress Report In Automatic Disclosure In The Federal Districts, Carl W. Tobias
Law Faculty Publications
In this brief article, Tobias gives an update on a controversial amendment in the Federal Rules of Civil Procedure, which provides for mandatory prediscovery, or automatic, disclosure. This articles serves to update readers on developments and clarifications since the author's previous article on the subject, published half a year earlier.
Comment On Judge Joseph F. Weis, Jr., Service By Mail--Is The Stamp Of Approval From The Hague Convention Always Enough?, Doug Rendleman
Comment On Judge Joseph F. Weis, Jr., Service By Mail--Is The Stamp Of Approval From The Hague Convention Always Enough?, Doug Rendleman
Scholarly Articles
Not available.
The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank
The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Perceptions Of Civil Justice: The Litigation Crisis Attitudes Of Civil Jurors, Valerie P. Hans, William S. Lofquist
Perceptions Of Civil Justice: The Litigation Crisis Attitudes Of Civil Jurors, Valerie P. Hans, William S. Lofquist
Cornell Law Faculty Publications
Public perceptions that the civil justice system is in crisis are apparently widespread, but little is known about the causes or correlates of such views. This article analyzes the litigation crisis attitudes of a sample of civil jurors. Like the public, jurors endorsed a number of statements suggesting that there is a litigation crisis. Factor analysis identified two independent components: general concern over excessive litigation, and criticism of the civil jury. Litigation crisis views were found in all demographic and attitudinal subgroups. However, attitudes about the civil justice system were related to the respondent's political efficacy, claims consciousness, belief in …
Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel
Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel
UF Law Faculty Publications
Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether?
This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide "right answers" to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for …
Discovery In The Real World, Minna J. Kotkin
Discovery In The Real World, Minna J. Kotkin
Faculty Scholarship
No abstract provided.
The Iron Law Of Full Faith And Credit, William L. Reynolds
The Iron Law Of Full Faith And Credit, William L. Reynolds
Faculty Scholarship
No abstract provided.
The Straight-Line Method Of Determining Personal Jurisdiction, John M. Brumbaugh, William L. Reynolds
The Straight-Line Method Of Determining Personal Jurisdiction, John M. Brumbaugh, William L. Reynolds
Faculty Scholarship
No abstract provided.
Elevated Pleading In Environmental Litigation, Carl W. Tobias
Elevated Pleading In Environmental Litigation, Carl W. Tobias
Law Faculty Publications
The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark.
The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and …
The Transmittal Letter Translated, Carl W. Tobias
The Transmittal Letter Translated, Carl W. Tobias
Law Faculty Publications
The letter in which Chief Justice Rehnquist transmitted to Congress amendments to various Federal Rules of Civil Procedure, which became effective on December 1, 1993 is reproduced. Professor Tobias then offers his "translation" of the letter with his interpretation of what likely took place during the rule revision process involving the Advisory Committee on the Civil Rules, emphasizing the controversial revision of F.R.C.P. Rule 11.
Evaluating Federal Civil Justice Reform In Montana, Carl W. Tobias
Evaluating Federal Civil Justice Reform In Montana, Carl W. Tobias
Law Faculty Publications
The Civil Justice Reform Act of 1990 (CJRA) has reached the mid-point of its implementation nationally and in the Montana Federal District Court. At this juncture, one of the most important aspects of statutory effectuation is evaluation of the experimentation that federal district courts have conducted under the legislation. The timing is particularly propitious in the Montana federal district because the court recently completed the annual assessment of statutory implementation that the CJRA requires. These developments in civil justice reform, particularly relating to evaluation of the experimentation which has occurred, warrant examination. This Article undertakes that effort. The Article first …
Recent Federal Civil Justice Reform In Montana, Carl W. Tobias
Recent Federal Civil Justice Reform In Montana, Carl W. Tobias
Law Faculty Publications
The Montana Federal District Court has continued to experiment with nearly all of the procedures that the court included in the civil justice expense and delay reduction plan which it officially adopted during April 1992 under the Civil Justice Reform Act (CJRA) of 1990. The most important procedures are automatic disclosure, co-equal assignment of cases to Article III judges and magistrate judges located in Billings, and rather close judicial case management. The judicial officers, who include three active and one senior Article III judges and three full-time magistrate judges, and many Montana attorneys who practice in federal court have now …
Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich
Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich
Faculty Publications
In this article, we will first review the development of the "actual injury" tolling provision in California, from its judicial adoption in 1971 to its legislative adoption in 1977. Second, we will explore the policies underlying the legal malpractice statute of limitation and the countervailing policies that may make delayed accrual or tolling desirable in situations involving simultaneous litigation. Third, we will examine case law applying the "actual injury" tolling provision to various fact situations and analyze potential legal solutions to the problem of defining "actual injury," including the doctrine of equitable tolling. Finally, we will demonstrate how the doctrine …
Civil Justice Reform In The United States — Opportunity For Learning From 'Civilized' European Procedure Instead Of Continued Isolation?, Ernst C. Stiefel, James Maxeiner
Civil Justice Reform In The United States — Opportunity For Learning From 'Civilized' European Procedure Instead Of Continued Isolation?, Ernst C. Stiefel, James Maxeiner
All Faculty Scholarship
This article reports on present and past efforts at civil justice reform in the United States and assesses the opportunities for learning from Continental models. European jurists have long urged that their American colleagues consider using continental approaches in dealing with the serious problems that afflict the American system of civil justice. A few years back, our colleague Kötz noted that "If there is a desire to reform American civil procedure, either by making changes within the adversary system or by developing alternative methods of dispute resolution, the Continental experience may be well worth studying."
Rodney King And The Decriminalization Of Police Brutality In America: Direct And Judicial Access To The Grand Jury As Remedies For Victims Of Police Brutality When The Prosecutor Declines To Prosecute, Peter L. Davis
Scholarly Works
This Article begins with the premise that, despite political rhetoric and occasional prosecutions to the contrary, police brutality has been effectively decriminalized in this country. The Article adopts the Rodney King case as the paradigm for examining this phenomenon. Scrutinizing the culture and semantics of police brutality, the author concludes that a double standard of criminality exists in the United States, under which different rules apply to a police than to everyone else. This double standard is socially dysfunctional. Particularly among minorities, it leads to a sense of cynicism about our legal system that can result in civil disorder when …
Interstate Consolidation: A Comparison Of The Ali Project With The Uniform Transfer Of Litigation Act (American Law Institute Complex Litigation Project: A Symposium, In Memoriam Donald Theodore Trautman), Edward H. Cooper
Articles
The Uniform Transfer of Litigation Act (UTLA) was undertaken for purposes simpler than the mass consolidation of multiparty, multiforum litigation. It seeks to create an effective tool that can be used to reduce some of the artificial barriers that tradition has erected around the sovereign separateness of the many different court systems in this country. The fact of separate sovereignty must be recognized, however, and to this end consent of both transferring and receiving courts is required. Within the consent requirement, transfer from the court system of one sovereign to the court system of another can improve on present practices …
Fractured Procedure: The Civil Justice Reform Act Of 1990, Lauren K. Robel
Fractured Procedure: The Civil Justice Reform Act Of 1990, Lauren K. Robel
Articles by Maurer Faculty
Federal district courts have viewed the Civil Justice Reform Act of 1990 as a mandate to adopt procedural rules inconsistent with existing law. But in this article, Professor Robel argues that the Act neither compels nor authorizes such local deviations. Citing examples from reforms underway in district courts nationwide, Professor Robel contends that courts' assertions of broad rulemaking authority rest on a misreading of the Act and of the compromise between Congress and the judiciary that led to its passage. Professor Robel cautions that the goal of national uniformity underlying the Federal Rules of Civil Procedure should not be compromised …
Reform Aspirations Of The Complex Litigation Project, Gene R. Shreve
Reform Aspirations Of The Complex Litigation Project, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Mandatory Disclosure And Local Abrogation: In Search Of A Theory For Optional Rules, Lauren K. Robel
Mandatory Disclosure And Local Abrogation: In Search Of A Theory For Optional Rules, Lauren K. Robel
Articles by Maurer Faculty
No abstract provided.
1993 Federal Rules Amendments And The Montana Civil Rules, Carl W. Tobias
1993 Federal Rules Amendments And The Montana Civil Rules, Carl W. Tobias
Law Faculty Publications
On December 1, 1993, the most comprehensive package of amendments to the Federal Rules of Civil Procedure (Federal Rules) in their half-century history became effective. Although the revisions include a number of changes that are relatively innocuous, modifications in Rule 11 governing sanctions and Rule 26 requiring mandatory pre-discovery or automatic disclosure were and remain controversial. The amendment to Rule 11 altered the 1983 revision of that Rule which had proved to be the most controversial amendment ever developed. The amendment to Rule 26 prescribing automatic disclosure was the most controversial formal proposal changing the Rules in their history. These …
The 1993 Revision Of Federal Rule 11, Carl W. Tobias
The 1993 Revision Of Federal Rule 11, Carl W. Tobias
Law Faculty Publications
The 1983 revision of Rule 11 of the Federal Rules of Civil Procedure ("Rule 11" or the "Rule") proved to be the most controversial amendment in the long history of the Federal Rules. Many federal judges inconsistently interpreted the provision's language and inconsistently applied the Rule. The 1983 version fostered much costly, unwarranted satellite litigation over its phrasing and the magnitude of sanctions that courts imposed while increasing incivility among lawyers. Rule 11 motions were filed and granted against civil rights plaintiffs more frequently than any other class of litigant, and numerous judges vigorously enforced the provision against the plaintiffs, …
Improving The 1988 And 1990 Judicial Improvements Acts, Carl W. Tobias
Improving The 1988 And 1990 Judicial Improvements Acts, Carl W. Tobias
Law Faculty Publications
In this article, Professor Tobias analyzes and attempts to harmonize the conflicting frameworks for civil procedure reform embodied in the Civil Justice Reform Act of 1990 (CJRA) and its immediate predecessor, the Judicial Improvements and Access to Justice Act of 1988 (JIA). Congress intended the JIA to open the national and local rulemaking processes to public scrutiny and to decrease the use of local rules. Yet Professor Tobias finds the 1990 Act at odds with the earlier measure in several ways. By encouraging local experiments aimed at reducing litigation costs and delay, he argues, the CJRA shifted the locus of …
Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel
Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel
Scholarly Works
Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …
The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch
The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Repealing The Law Of Unintended Consequences? Comment On Walker (2), Thomas D. Rowe Jr.
Repealing The Law Of Unintended Consequences? Comment On Walker (2), Thomas D. Rowe Jr.
Faculty Scholarship
Commentary on, Laurens Walker, Avoiding Surprise From Federal Civil Rule Making: The Role of Economic Analysis, 23 Journal of Legal Studies 569 (1994).
Pretrial Case Management Under The Amended Rules: Too Many Words For A Good Idea, Michael E. Tigar
Pretrial Case Management Under The Amended Rules: Too Many Words For A Good Idea, Michael E. Tigar
Faculty Scholarship
No abstract provided.
The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo
The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo
All Faculty Scholarship
California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely …
Book Review. Civil Procedure: Other Disciplines, Globalization, And Simple Gifts, Gene R. Shreve
Book Review. Civil Procedure: Other Disciplines, Globalization, And Simple Gifts, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper
Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper
Articles
Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery "abuse" deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may …