Law Commons^™

Inside The Black Box: Comment On Diamond And Vidmar, Valerie P. Hans

Cornell Law Faculty Publications

It is an honor to be invited to comment on the first publication of the Arizona Jury Project, a study of Arizona juries that includes videotaping and analysis of jury room discussions and deliberations. It is a remarkable and unique project, made possible by an unusual confluence of people, places, and events. In an insightful opinion some years ago, United States Supreme Court Justice Louis Brandeis observed that "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments …

Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner

Michigan Law Review

During patent infringement litigation, the Federal Rules of Civil Procedure ("FRCP") and the federal district court's local rules govern the parties' pretrial discovery and motion practice. The U.S. District Court for the Northern District of California has adopted the most comprehensive local rules to date covering pretrial procedures in the patent litigation context. The Northern District of California Patent Local Rules ("Local Rules") may come to have a significant impact throughout the federal courts, as it appears that other jurisdictions and commentators are looking to the Local Rules for guidance. For instance, the American Bar Association Section of Intellectual Property …

Closet Case: Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren Hutchinson

Darren L Hutchinson

This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay lesbian, bisexual, and transgender individuals.

Discovery In Summary Assessment Proceedings, Steve R. Johnson

Scholarly Publications

When the collection of tax could be imperiled by going through the usual deficiency procedures, the IRS may make a jeopardy assessment or a termination assessment (hereinafter sometimes called “summary assessment”) and proceed immediately to collection. To prevent the misuse of this power, section 7429 provides affected taxpayers expedited administrative and judicial review. The IRS has made tens of thousands of jeopardy and termination assessments over the years, and there are hundreds of court decisions in litigated section 7429 cases.

The unique nature of jeopardy and termination assessments makes section 7429 proceedings very different from typical tax litigation. This article …

Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy

Washington Law Review

Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large-multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power—a punitive damages verdict typically takes the form of an unexplained number. Courts can and should change this practice. Under Federal Rule of Civil Procedure 49(b) and analogous state rules, courts could require juries to return "explanatory verdicts" that set forth the bases for their punitive damages awards. Several advantages would flow from adopting this simple …

Class Actions As Alternative Dispute Resolution, John C. Kleefeld

Osgoode Hall Law Journal

This article situates the action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum. Class action legislation does this in a number of ways, the most important being the scope it gives to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions-access to justice, judicial economy and behaviour modification-are well served. Class actions can thereby render …

Applying Mcintyre V. Ohio Elections Commission To Anonymous Speech On The Internet And The Discovery Of John Doe's Identity, Caroline E. Strickland

Washington and Lee Law Review

No abstract provided.

3rd Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2001, Department Of The Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Reconceptualizing The Expert Witness: Social Costs, Current Controls And Proposed Responses, Jeffrey L. Harrison

UF Law Faculty Publications

Unlike virtually any other business, expert witnesses are not typically held accountable in either tort or contract law for their commercial activities. This means that many are inclined to deliver what the market demands - partisan, biased, or plainly dishonest testimony - without concern for the costs this testimony may impose on others. This immunity from the internalization of the social cost of their testimony is hard to reconcile with any moral or economic standard. Harsh judicial reactions to some experts and a slight increase in expert witness liability may signal that a change in the privileged status of experts …

Appellate Practice And Procedure, William M. Droze, Suzanne F. Sturdivant

Mercer Law Review

In 2000 the United States Court of Appeals for the Eleventh Circuit was called upon to decide high profile and difficult issues. It helped determine the fate of young Elian Gonzalez and the course of President Bush and former Vice President Al Gore's legal battles for the presidency. Yet some of these decisions-and many others-turned on less sensational procedural questions. This Article examines the role that procedural issues have played in the court's recent opinions. It is intended to help practitioners gauge trends in the court's approach to interlocutory matters; timeliness of notice of appeal and presentation of argument; the …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the year 2000 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

• Constitutional Torts
• Removal Jurisdiction
• Intervention
• Jurisdiction
• Prison Litigation Reform Act
• Abstention and Removal of Bankruptcy Proceedings

Reeves V. Sanderson Plumbing Products: Stemming The Tide Of Motions For Summary Judgment And Motions For Judgment As A Matter Of Law, Trevor K. Ross

Mercer Law Review

In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court addressed the evidentiary burdens required of a plaintiff in an ADEA case, holding that evidence leading the fact finder to reject the defendant's proffered legitimate nondiscriminatory reasons together with the elements of a prima facie case may meet a plaintiff's burden to show intentional discrimination. Additionally, the Court at last set forth the way in which judges may consider a motion for judgment as a matter of law without weighing the evidence, holding that a court should consider all the nonmovant's evidence drawing all reasonable inferences in favor of …

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Service Of United States Process In Russia Under Rule 4(F) Of The Federal Rules Of Civil Procedure, Tatyana Gidirimski

Washington International Law Journal

When a potential Russian defendant is not present and cannot be served within the United States, U.S. litigants may be faced with the necessity of carrying out service of process in Russia. If the suit is brought in a U.S. district court, Rule 4(f) of the Federal Rules of Civil Procedure will govern service of process. Although Rule 4(f) provides a number of options for service of process abroad, only two of these options can be used to serve process in Russia. First, service may be done through a letter of request. In fact, Russian law requires foreign service of …

Why Judges Don't Like Petitions For Rehearing, Richard S. Arnold

The Journal of Appellate Practice and Process

Petitions for en banc rehearings are rarely granted. A Senior Judge for the United States Court of Appeals for the Eighth Circuit provides a history and reasoning of the rehearing process and his personal observations on those petitions and processes in today's court.

The Power Of A Federal Appellate Court To Direct Entry Of Judgment As A Matter Of Law: Reflections On Weisgram V. Marley Co., Robert A. Ragazzo

The Journal of Appellate Practice and Process

Federal district court judges have several mechanisms for controlling civil jury functions. One mechanism is the entry of judgment as a matter of law. Federal appellate courts are able to reverse and direct entry of judgment as a matter of law. This article examines the appropriateness of such authority.

After Steel Co.: 'Hypothetical Jurisdiction' In The Federal Appellate Courts, Joan E. Steinman

All Faculty Scholarship

In Steel Co. v. Citizens for a Better Environment, the United States Supreme Court, sua sponte, denounced the doctrine of "hypothetical jurisdiction," a doctrine that, in some circumstances, allowed courts to assume, arguendo, the existence of jurisdiction and to address the merit questions presented by cases. Several of the Justices distanced themselves from the denunciation, however, and despite the vociferousness of the position taken by the majority, even it found that there were exceptional circumstances in which the Court had acted properly (and presumably in which other courts would act appropriately) in assuming jurisdiction arguendo and addressing merits questions. The …

Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

The prevailing "expert" opinion is that jury verdicts are largely immune to appellate revision. Using a database that combines all federal civil trials and appeals decided since 1988, we find that jury trials, as a group, are in fact not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more …

Exhaustion Doctrine Should Not Be A Doctrine With Exceptions, Rebecca L. Donnellan

West Virginia Law Review

No abstract provided.

Evaluation Of The Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months, Robert G. Hann, Carl Baar, Lee Axon, Susan Binnie, Frederick H Zemans

Books

No abstract provided.

Forcing The Issue: Activist Veterinarian Seeks Rights For Arrestees As Well As Animals, Kathryn R. Urbonya

Popular Media

No abstract provided.

Potential Innovations In Civil Discovery: Lessons For California From The State And Federal Courts, Gregory S. Weber

McGeorge School of Law Scholarly Articles

No abstract provided.

Purchasing While Black: How Courts Condone Discrimination In The Marketplace, Matt Graves

Michigan Journal of Race and Law

Given the sweeping language of § 1981 and 1982, it cannot be that sellers of goods can engage in intentional discrimination, so long as they make relatively minor attempts to cover it up. By exploring the interaction between substantive law, procedural law, legal culture, and real-world context, Graves seeks to demonstrate that judges cannot offer any legal or practical justification for heightened pleading requirements in § 1981 and 1982 actions. Through this argument, a conclusion is reached that § 1981 and 1982 plaintiffs must be given the same opportunity to litigate their claims that virtually all other plaintiffs are given. …

Managing Punitive Damages: A Role For Mandatory "Limited Generosity" Classes And Anti-Suit Injunctions?, Joan E. Steinman

All Faculty Scholarship

In this Article, I consider whether "limited generosity" classes may be used to determine a defendant's entire liability for punitive damages arising from a defined course of conduct. The goals of such a class action would include adequately punishing and deterring the defendant, keeping the defendant's liability within state-mandated and constitutional limits, and facilitating equitable distribution of the damages among injured plaintiffs. The Article describes the legal limits on punitive damages liability that states have established and that the Supreme Court has held substantive due process to impose, and then carefully examines whether such limits constitute a predicate for mandatory …

The Uniform Innocent Owner Defense To Civil Asset Forfeiture: The Civil Asset Forfeiture Reform Act Of 2000 Creates A Uniform Innocent Owner Defense To Most Civil Forfeiture Cases Filed By The Federal Government, Stefan D. Cassella

Kentucky Law Journal

No abstract provided.

Damage Awards In Perspective: Behind The Headline-Grabbing Awards In Exxon Valdez And Engle, Theodore Eisenberg

Cornell Law Faculty Publications

Large punitive damages awards in tobacco litigation, the Exxon Valdez oil spill case, and other cases dominate the public perceptions about damages. These large awards and the mass of compensatory awards can be best understood in relation to other awards. In fact, total awards in tried contract cases have risen faster than tort awards. In the highly visible world of large punitive damages awards, the Exxon Valdez award fits well within the traditional pattern of punitive awards. The largest punitive award, that against the tobacco industry in Engle, is best understood against the background of the tobacco industry's national …

Evidence: 1999-2000 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Is A Foreign State A "Person"? Does It Matter?: Personal Jurisdiction, Due Process, And The Foreign Sovereign Immunities Act, 34 N.Y.U. J. Int'l L. & Pol. 115 (2001), Karen H. Cross

UIC Law Open Access Faculty Scholarship

No abstract provided.

The 2000 Federal Civil Rules Revisions, Carl W. Tobias

Law Faculty Publications

During April 2000, the United States Supreme Court prescribed a comparatively thorough set of amendments to the Federal Rules of Civil Procedure. These amendments took effect in December 2000. That development represented the culmination of a rule revision proceeding commenced in 1996 by the Judicial Conference of the United States Advisory Committee on Civil Rules (Advisory Committee). Because certain provisos that the Supreme Court included in the 2000 amendments are rather controversial and could alter significant features of modern federal civil litigation primarily involving discovery, these revisions deserve assessment. This Essay undertakes that effort by emphasizing changes in mandatory prediscovery, …