Law Commons^™

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

Should Summary Judgment Be Granted?, Bradley Scott Shannon

American University Law Review

This article discusses (and criticizes) the recent change from "shall" to "should" in Federal Rule of Civil Procedure 56 to describe the standard by which a federal district court is to decide a "properly made and supported" motion for summary judgment. The article concludes that the text of Rule 56, which formally provided that such a motion "shall" be granted, cannot plausibly be construed as meaning "should"; that this change was not supported by those authorities cited by the Federal Civil Rules Advisory Committee; and that, as a normative matter, "should" is an inappropriate standard in this context. Federal district …

Summary Judgment Rates Over Time, Across Case Categories, And Across Districts: An Empirical Study Of Three Large Federal Districts, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

Prior research on summary judgment hypothesizes a substantial increase in summary judgment rates after a trilogy of Supreme Court cases in 1986 and a disproportionate adverse effect of summary judgment on civil rights cases. This article analyzes summary judgment rates in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), for two time periods, 1980-81 and 2001-02. It also analyzes summary judgment rates for the Central District of California (CDCA) for 1980-81 and for other civil rights cases in the CDCA in 1975-76. The combined sample consists of over 5,000 cases. The three-district sample for 1980-81 …

A Tale Of Two Waivers: Waiver Of The Jury Waiver Defense Under The Federal Rules Of Civil Procedure, Jarod S. Gonzalez

Jarod S. Gonzalez

There is an extensive amount of academic commentary on the enforceability of pre-dispute contractual jury waivers. My article, entitled A Tale of Two Waivers: Waiver of the Jury Waiver Defense under the Federal Rules of Civil Procedure, considers a related topic that has not received much scholarly attention: the procedure for raising a jury waiver defense in federal civil litigation. Specifically, I advocate a novel approach that treats a contractual jury waiver defense as an affirmative defense under Rule 8 of the Federal Rules of Civil Procedure. The affirmative defense approach requires a party that desires to strike a jury …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

UF Law Faculty Publications

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Docketology, District Courts, And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey R. Lidicker

David A Hoffman

Empirical legal scholars have traditionally modeled judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. Support for this hypothesis has reviewed published opinions, finding that civil rights and other “hot” topics are more to be discussed than other issues. This orthodoxy comforts consumers of legal opinions, because it suggests that opinions are largely representative of judicial work. The orthodoxy is substantively and methodologically flawed. This paper starts by assuming that judges are generally risk averse with respect to reversal, and that they provide opinions when they believe that …

Revisiting Contra Non Valentem In Light Of Hurricanes Katrina And Rita, Benjamin West Janke

Louisiana Law Review

No abstract provided.

Forum Shopping And The Infrastructure Of Federalism., James E. Pfander

Faculty Working Papers

The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Scholarly Articles

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts that choose to continue to apply …

Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller

Scholarly Works

There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …

Dura Pharmaceuticals, Inc. V. Broudo: A Missed Opportunity To Right The Wrongs In The Pslra And Rebalance The Private Rule 10b-5 Litigation Playing Field, Thomas F. Gillespie Iii

Journal of Business & Technology Law

No abstract provided.

Bare Justice: A Feminist Theory Of Justice And Its Application To Post-Genocide Rwanda, Megan M. Carpenter

Law Faculty Scholarship

Within this Article I seek to develop a feminist legal theory of justice, by questioning the ability of traditional legal strategies to facilitate justice and identifying underlying principles that contribute to a more inclusive and holistic form of justice. Secondly, I apply this theory to the situation of women victims of sexual violence in post-genocide Rwanda, in an effort to explore how these principles can contribute to a realization of justice that empowers women.

In Part II of this Article, I seek to develop a set of principles underlying a feminist reconceptualization of justice. This endeavour is a three-step process: …

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

Beneath The Surface: Metadata, Transparency And The Ethical Use Of Information, Michael Katz

Michael Katz

While the gains from the digital revolution are tremendous in terms of increased efficiency, access to information and searchability, the change in information format has caught some off guard. No longer is data limited to what is available on a piece of paper. Yet there is a price to pay for these gains. Where once a letter’s recipient could not see anything but what the sender openly presented in the letter, today that email, word processing document and spreadsheet all contain additional information not readily visible on their face. Beneath the surface, packed into the file, exists metadata - information …

The Challenge Of Comparative Civil Procedure, Scott Dodson

Scott Dodson

This Review Essay, solicited by the Alabama Law Review, reviews "Civil Litigation in Comparative Context" (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.