Law Commons^™

9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres

Fordham Law Review

Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long …

Pound's Century, And Ours, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Civil Procedure: The Last Ten Years, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky

Alex Stein

This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …

Cross-Fertilization: Family Adr To Civil Adr, Sharon Press, Andrew Schepard

Hofstra Law Faculty Scholarship

The article discusses the cross-fertilization of the processes in family and civil alternative dispute resolution (ADR). It provides overview of the history of the civil procedures in both the family and civil ADR, and offers insights from two academic practitioners and public policy advocates who have participated in the development of the practices. It also presents comments on the substantive areas of civil law, which illustrate similar characteristics of family law.

Remedies Unified In Nine Verses, Caprice Roberts

Caprice L. Roberts

An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

With Apologies To Paxton Blair, Peter B. Rutledge

Scholarly Works

Much has been written on the forum non conveniens doctrine, yet I nonetheless believe that recent developments in related areas still enable scholars to offer an original perspective on the subject. In this brief essay, I advance the following thesis: the forum non conveniens doctrine developed in response to a specific set of doctrines and specific social phenomena. The waning of some of those doctrines have diminished though not altogether eliminated the need for forum non conveniens, which always has had a suspect status following Erie’s declaration that there is “no federal general common law.” While it is most certainly …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew J.B. Lawrence

Faculty Scholarly Works

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Simplification- A Civil Procedure Perspective, Doug Rendleman

Doug Rendleman

No abstract provided.

The California Constitutional Right Of Privacy And Exclusion Of Evidence In Civil Proceedings, Jerry D. Mackey

Pepperdine Law Review

No abstract provided.

Allocation Of Responsibility After American Motorcycle Association V. Superior Court, Erwin E. Adler

Pepperdine Law Review

In its landmark case of Li v. Yellow Cab Co., the California Supreme Court judicially adopted the doctrine of comparative negligence in an action involving a plaintiff and a single defendant. The court in Li specifically avoided making any decision concerning the numerous issues which would be involved in a multi-party action: the relationship of multiple defendants with one another, the right of one defendant to join others for the purpose of sharing payment of the judgment, the respective responsibilities of such parties for the judgment (including those insolvent, partially solvent or possessing an immunity), and the procedure for the …

World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet

Pepperdine Law Review

World Wide Volkswagen Corporation v. Woodson considers the problem of modifying in personam jurisdiction to comply with the changing nature of the American economy. Several lower courts had adjusted the "minimum contacts" test of International Shoe Co. v. Washington to allow for the differences in modern economic lifestyle, but a uniformity amongst the various approaches was lacking. Rather than synthesize a contemporary test for the assertion of in personam jurisdiction, the World- Wide Court chose to place state sovereignty above modern commercial realities and adhere to a more rigid application of the minimum contacts analysis. The author takes issue with …

Simplification- A Civil Procedure Perspective, Doug Rendleman

Doug Rendleman

No abstract provided.

The Sanction Provision Of The New California Civil Discovery Act, Section 2023: Will It Make A Difference Or Is It Just Another "Paper Tiger"? , Timothy Michael Donovan

Pepperdine Law Review

No abstract provided.

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Faculty Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Teaching Access, Or Freedom Of Information Law, Richard J. Peltz-Steele

Faculty Publications

Based on the author's experience developing and administering the course and materials, this article provides an introduction and resources to teach a graduate journalism or professional law school course on access to government, commonly called "freedom of information law", which may be constructed as a capstone course in law school. The appendices provide supporting material and references.

Reversing Course: A Critique Of The Court Of Appeals New Rules For Unjust Enrichment And Criminal Legal Malpractice Actions, Jay C. Carlisle Ii

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments by the New York Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder and Dombrowski v. Bulson.

Mass Procedures As A Form Of "Regulatory Arbitration" - Abaclat V. Argentine Republic And The International Investment Regime, S. I. Strong

Faculty Publications

This article takes a unique and intriguing look at the issues presented by Abaclat, considering the legitimacy of mass procedures from a regulatory perspective and using new governance theory to determine whether a new form of regulatory arbitration is currently being developed. In so doing, the discussion describes the basic parameters of regulatory litigation and analyzes the special problems that arise when regulatory litigation is used in the transnational context, then transfers those concepts into the arbitral realm. This sort of analysis, which is entirely novel as a matter of either public or private law, will shape future inquiries regarding …

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Samuel P. Baumgartner

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Constraining The Federal Rules Of Civil Procedure Through The Federalism Canons Of Statutory Interpretation, Margaret S. Thomas

Journal Articles

The doctrine for deciding when to apply the Federal Rules of Civil Procedure to state claims heard in federal court has become a quagmire of exceptions and ephemeral distinctions, in large measure due to the persistent difficulty courts have in separating substantive rules from procedural ones in an era where special procedural rules are often used as an essential regulatory tool in state governance. This article examines the power of Federal Rules of Civil Procedure to displace contrary state law in diversity cases by focusing on the limited functional competence of the Supreme Court and its Advisory Committee to displace …

Patent Misjoinder, David O. Taylor

Faculty Journal Articles and Book Chapters

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation, contradicting two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure: the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties. Remarkably, the new statutory section does so despite the absence of any detailed scholarly …

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

Faculty Journal Articles and Book Chapters

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 …

Superiority As Unity, Jay Tidmarsh

Journal Articles

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …

What Should We Do About Multijurisdictional Litigation In M&A Deals?, Randall Thomas

Vanderbilt Law School Faculty Publications

Many M&A transactions attract shareholder litigation challenging the fairness of the economic terms of the deal for the target shareholders. Since the end of the financial crisis, however, there has been a documented increase in the number of jurisdictions in which each individual transaction is attacked. Why has this upsurge in multi-jurisdictional litigation occurred? How significant are its real costs and benefits? And what should we do about it, if anything? This Article first summarizes what we know about these questions and then offers its own viewpoint on how best to respond to multi-jurisdictional litigation. On the one side, the …