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Articles 1 - 30 of 553
Full-Text Articles in Law
The New Comity Abstention, John Harland Giammatteo
The New Comity Abstention, John Harland Giammatteo
Journal Articles
In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.
This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …
Is The Contempt Power Obsolete?, Nino C. Monea
Is The Contempt Power Obsolete?, Nino C. Monea
Dickinson Law Review (2017-Present)
Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion …
Civil Procedure And The New Bar Exam, Jeffrey A. Parness
Civil Procedure And The New Bar Exam, Jeffrey A. Parness
University of Colorado Law Review Forum
No abstract provided.
Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson
Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson
Catholic University Journal of Law and Technology
No abstract provided.
Self-Intervention, Lumen N. Mulligan
Self-Intervention, Lumen N. Mulligan
Faculty Works
You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …
Self-Intervention, Lumen N. Mulligan
Self-Intervention, Lumen N. Mulligan
University of Colorado Law Review
You cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state's sovereign interest, to intervene when the attorney general is already representing the state's sovereign interest. In this Article, I contend that the text, history, and practice of Rule 24(a)(2) prohibit such "self-intervention." I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties in interest. I further conclude that …
Introduction To A Festschrift Honoring Professor Rhonda Wasserman, Deborah L. Brake
Introduction To A Festschrift Honoring Professor Rhonda Wasserman, Deborah L. Brake
Articles
Rhonda Wasserman joined the faculty of the University of Pittsburgh School of Law in 1986, after graduating from Yale Law School and practicing law in New York City for three years. She has been a powerhouse on the Pitt Law faculty for three and a half decades. In that time, she served in many roles, including Associate Dean for Academic Affairs and, outside the law school, Reporter to the Local Rules Committee of the United States District Court for the Western District of Pennsylvania. She has been recognized with numerous titles and honors, such as John E. Murray Faculty Scholar, …
Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda
Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda
University of Colorado Law Review
Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …
Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover
Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …
Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina
Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina
"Dharmasisya” Jurnal Program Magister Hukum FHUI
A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …
Constitutional Standoff: An Example Of Practical Difficulty In Mississippi Venue Rules, Hunter C. Ransom
Constitutional Standoff: An Example Of Practical Difficulty In Mississippi Venue Rules, Hunter C. Ransom
Mississippi College Law Review
Mississippi’s legislature and judiciary have been locked in a constitutional standoff over procedural rulemaking power for decades. In an article describing the history of the conflict, author William H. Page has predicted that the situation will inevitably lead to “practical difficulties” down the road. Years later, given ongoing conflicts among various aspects of civil procedure in Mississippi, that prediction is beginning to appear prescient. A prime example has developed in Mississippi’s venue rules.
This Comment has three goals. First, it seeks to resurface Page’s discussion of the “constitutional standoff.”3 Second, it describes how Page was likely correct in predicting that …
For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.
For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.
UNH Sports Law Review
No abstract provided.
Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel
Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel
Brigham Young University Prelaw Review
Diversity jurisdiction authorizes federal courts to act as impartial tribunals over certain matters of state law. To preserve states' judicial sovereignty, the US Supreme Court has prohibited diversity courts from directly interpreting state law, holding that federal courts must "predict" the legal outcome as if a state court had adjudicated. However, litigant abuse hinders consistency in legal outcomes. Discrepancies between courts spur forum shopping, which cyclically generates more legal incongruence. This paper identifies a "toxic cycle" plaguing diversity jurisdiction and offers five prescriptions which courts and Congress must use to reverse it.
Rethinking The Process Of Service Of Process, Mary K. Bonilla
Rethinking The Process Of Service Of Process, Mary K. Bonilla
St. Mary's Law Journal
Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states …
Neoliberal Civil Procedure, Luke Norris
Neoliberal Civil Procedure, Luke Norris
Law Faculty Publications
This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the …
28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan
28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan
Faculty Works
In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …
Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer
Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer
Faculty Publications
On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …
Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica Steinberg, Lauren Sudeall
Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica Steinberg, Lauren Sudeall
GW Law Faculty Publications & Other Works
This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.
The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …
Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple
Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple
William & Mary Law Review
Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …
The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman
The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman
William & Mary Law Review Online
Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …
The Provision Of Expedited Financial Advance Before The Administrative Court: A Comparative Study Of French And Algerian Laws, Addo Abdulkadir
The Provision Of Expedited Financial Advance Before The Administrative Court: A Comparative Study Of French And Algerian Laws, Addo Abdulkadir
UAEU Law Journal
Through the Decree No. 88 -907 of 27 September 1988, amended by Decree No. 2000-1115 of 22 November 2000, the French legislator has introduced a new procedure similar to that outlined in the Code of Civil Procedure. This new procedure allows the administrative judge to grant a proviso to creditors of public persons, as soon as possible, since the existence of the obligation is not seriously disputed. Through the same judicial formula used in the legal code of the French administrative justice, the Algerian legislator introduced this procedure in the code of civil and administrative procedures in 2008, provided that …
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
Faculty Publications
Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.
This paradox arises at the intersection of three distinct areas of doctrine:
(1) a newly sharpened requirement of concrete injury under Article III that …
An Appellate Solution To Nationwide Injunctions, Sam Heavenrich
An Appellate Solution To Nationwide Injunctions, Sam Heavenrich
Indiana Law Journal
District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them …
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Touro Law Review
No abstract provided.
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron
Scholarly Works
No abstract provided.
Standing To Sue In Land Use Litigation, Daniel R. Mandelker
Standing To Sue In Land Use Litigation, Daniel R. Mandelker
Scholarship@WashULaw
Third party standing to sue is essential in land use litigation. Questionable land use decisions will not be taken to court unless a third party can sue, but third party standing is limited. Standing law is fragmented, obstinate, excessively restrictive, and split between judicial and statutory requirements. Reform is necessary so that third parties can have access to court to protect public values. This Article explains why third party standing should be expanded, and it includes a conceptual model that can guide reform. It discusses conflicting third party standing rules in the Supreme Court, including the dominant restrictive rule that …
Mcnamee V. Eighth Judicial District Court, 135 Nev. Adv. Op. 52 (Oct. 17, 2019), Alfa Alemayehu
Mcnamee V. Eighth Judicial District Court, 135 Nev. Adv. Op. 52 (Oct. 17, 2019), Alfa Alemayehu
Nevada Supreme Court Summaries
The Court overruled Barto v. Weishaar, partly granted the petitioner’s writ of mandamus, and held that if a suggestion of death is properly served, the 90-day deadline to file a motion to substitute is triggered regardless of which party files it and whether it identifies the deceased party’s successor or representative.
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Alan J. Meese
No abstract provided.
Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl
Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl
Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.