Law Commons^™

The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey

San Diego Law Review

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …

Trial Practice And Procedure, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler, Anna W. Howard, Morgan E. Duncan

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …

Nonsuit In Virginia Civil Trials, Richard G. Moore

University of Richmond Law Review

No abstract provided.

Civil Practice And Procedure, Andrew P. Sherrod, Jaime B. Wisegarver

University of Richmond Law Review

This article surveys recent significant developments in Virginia civil practice and procedure. The article discusses opinions of theSupreme Court of Virginia from June 2012 through June 2013 addressing civil procedure topics, significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period, and legislation enacted by the Virginia General Assembly during its 2013 session that relates to civil practice.

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …

The Teaching Of Procedure Across Common Law Systems, Erik S. Knutsen, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Osgoode Hall Law Journal

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems— the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained re flection has been carried out as to the import and impact of this longstanding …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron

Osgoode Hall Law Journal

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that …

"Carving At The Joints": Using Issue Classes To Reframe Consumer Class Actions, Jenna C. Smith

Washington Law Review

Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend …

Thoughtful Practitioners And An Engaged Legal Community: The Impact Of The Teaching Of Procedure On The Legal Profession And On Civil Justice Reform, Janet Walker, Andrew Higgins, Thomas D. Rowe Jr., Carla Crifò

Osgoode Hall Law Journal

What difference does the teaching of civil procedure as an academic subject make to the practice of law, to the professional community in which lawyers practice, and to civil justice reform? In this article, proceduralists from Canada, England and Wales, the United States and Australia analyze the broader implications of teaching civil procedure as an integral feature of an academic legal education rather than as a part of vocational training. They consider ways in which the approach taken to the teaching of procedure in their legal system has influenced the evolution of the profession during a decade of increased public …

Learning The 'How' Of The Law: Teaching Procedure And Legal Education, David Bamford, Trevor C. W. Farrow, Michael Karayanni, Erik S. Knutsen

Osgoode Hall Law Journal

This article examines the approaches to teaching civil procedure in five common law jurisdictions (Canada, Australia, United States, Israel, and England). The paper demonstrates the important transition of civil procedure from a vocational oriented subject to a rigorous intellectual study of policies, processes, and values underpinning our civil justice system, and analysis of how that system operates. The advantages and disadvantages of where civil procedure fits within the curriculum are discussed and the significant opportunities for ‘active’ learning are highlighted. The inclusion of England where civil procedure is not taught to any significant degree in the law degree provides a …

Electronic Data Discovery Sanctions: The Unmapped, Unwinding, Meandering Road, And The Courts’ Role In Steadying The Playing Field, Ahunanya Anga

San Diego Law Review

This Article highlights a growing problem for litigants who are involved in electronic data discovery (EDD). The world of litigation today encompasses massive amounts of electronically produced documents. It is estimated that ninety-nine percent of new information is created and stored electronically. The litigation practice generally, as it relates to electronic discovery (e-discovery) particularly, has mushroomed into a chaotic process. The technological age has radically impacted the federal discovery process. The purpose of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP) was, among other things, to address problems associated with electronically stored information (ESI) that arise during …

New Methods Of Financial White-Collar Criminal Investigation And Prosecution: The Spillover Of Wiretaps To Civil Enforcement Proceedings, Andrew P. Atkins

Pace Law Review

To have a proper understanding of the questions presented by the Rajaratnam cases, a basic understanding of the criminal and civil cases is necessary. Accordingly, Part II will briefly discuss the facts of the two cases, the investigation, and relevant court rulings. Part III will briefly discuss the history and relevant provisions of Title III of the Omnibus Crime Control and Safe Streets Act , the “comprehensive scheme” for regulating the authorization and disclosure of wiretaps. Part IV will discuss the primary theories the SEC could have used to obtain wiretap recordings for use in its civil enforcement proceeding, namely …

Conformity In Confusion: Applying A Common Analysis To Wikipedia-Based Jury Misconduct, Matthew Fredrickson

Washington Journal of Law, Technology & Arts

In 2012, the United States Court of Appeals for the Fourth Circuit decided United States v. Lawson, a case of first impression about a juror’s use of Wikipedia during deliberations. Had this case been decided in the 1950s, the juror’s contact with the extra-record material during deliberations would have given rise to a presumption of prejudice in favor of the party claiming he was denied a fair trial. However, in the 1980s and 1990s, the United States Supreme Court seemed to eliminate that presumption and place the burden of proving prejudice on the party seeking a new trial. As …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

This year saw the United States Court of Appeals for the Eleventh Circuit set the ground rules for collateral attacks on class settlements and elaborate on the predominance requirements for class certification. The court also considered the enforceability of a, variety of arbitration provisions in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion and examined standing issues common in data security breach class actions.

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

The Odd State Of Twiqbal Plausibility In Pleading Affirmative Defenses , William M. Janssen

Washington and Lee Law Review

No abstract provided.

Book Review: Errol Morris, “A Wilderness Of Error”: Provocative But Unpersuasive, Richard C. Cahn

Touro Law Review

No abstract provided.

A Barrier To Child Welfare Reform: The Supreme Court’S Flexible Approach To Federal Rule Of Civil Procedure 60(B)(5) And Granting Relief To States In Institutional Reform Litigation, Rachel Dunnington

Seattle University Law Review

In a recent decision, Horne v. Flores, the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation’s most vulnerable citizens. This Note will discuss Horne’s impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as …

The Scope Of Discovery Of Legal Ethics In Class Action Litigation, Bernard W. Freedman

Pepperdine Law Review

No abstract provided.

Book Reviews, James D. Mcgoldrick, Charles I. Nelson

Pepperdine Law Review

No abstract provided.

Critical Race Empiricism: A New Means To Measure Civil Procedure, Victor D. Quintanilla

UC Irvine Law Review

No abstract provided.

Marco V. Doherty: Forcing An Agency To Play By Its Own Rules: Administrative Res Judicata, Matt Bove

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

When Dicta Attacks: Elliott V. Commodity Futures Trading Commission, Joanna E. Barnes

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Adjudications By Administrative Law Judges Pursuant To The Social Security Act Are Adjudications Pursuant To The Administrative Procedure Act , Robin J. Arzt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.