Law Commons^™

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

Aaron-Andrew P. Bruhl

No abstract provided.

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Responding To The Loss Of An En Banc Quorum (Update: Prawfsblawg Gets Results!?), Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Did The Supreme Court Recently Exercise A Power That Had Lain Dormant For Decades?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T'S Long Game On Unconscionability, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Conformity And The Rules Of Civil Procedure: Lessons From Tennessee, Matthew Lyon

Matthew Lyon

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Jay Tidmarsh

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

Comin' Through The Rye: A Requiem For The Tennessee Summary Judgment Standard, Matthew Lyon, Judy M. Cornett, T. Mitchell Panter

Matthew Lyon

Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo

Scott Dodson

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

7 Things You Need To Know About: The American Court System, Corey A. Ciocchetti

Corey A Ciocchetti

These presentation slides cover the 7 most important things you need to know about the American Court System. They cover: personal jurisdiction, subject matter jurisdiction, removal, change of venue, and the steps in bringing a lawsuit.

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

Enforcing Judgments Across State And National Boundaries: Inbound Foreign Judgments And Outbound Texas Judgments, James P. George

James P. George

Litigation between parties in different states has been common since the success of the railroads and telegraph in the late nineteenth century. International litigation--suits involving parties from different countries--is now routine. In spite of that routine, lawyers continue to face enforcement obstacles when suing a defendant from another state or country. Similarly, defendants perceive unfairness from judgments rendered far away. Those enforcement obstacles and instances of unfairness have been lessened by uniform enforcement statutes and a few treaties, but the rules remain elusive.

This Article provides a cursory outline for most foreign-judgment enforcement issues that Texas attorneys will face. It …

Conflict Of Laws, James P. George, Susan T. Phillips

Susan T. Phillips

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …

Some Aspects Of Joinder Of Causes, Edward Q. Carr

Edward R. Carr

No abstract provided.

We Do Not Recognise Anything 'Private': Public Interest And Private Law Under The Socialist Legal Tradition And Beyond, Rafal Manko

Dr. Rafał Mańko

In line with Lenin’s famous quote that Bolsheviks “do not recognise anything private” and that private law must be permeated with public interest, the private (civil) law of the USSR and other countries of the Soviet bloc, including Poland underwent reform aimed at furthering the public interest at the expense of the private one. Specific legal institutions were introduced for this purpose, in the form of legal innovations, loosely, if at all, based on pre-existing Western models. In the Polish case, such legal institutions were usually legal transfers, imported from the Soviet Union. When the socio-economic and political system changed …

Atlantic Marine And The Future Of Party Preference, Scott Dodson

Scott Dodson

In Atlantic Marine, the U.S. Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. This paper is derived from my presentation at the symposium on Atlantic Marine held at UC Hastings College of the Law on September 19, 2014. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for …

Pleading And The Litigation Marketplace, Scott Dodson

Scott Dodson

In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.

Procedural Triage, Matthew Lawrence

Matthew B. Lawrence

De Graça, Até Injeção Na Testa: Análise Juseconômica Da Gratuidade De Justiça, Ivo T. Gico Jr., Henrique A. Arake

Ivo Teixeira Gico Jr.

A gratuidade de justiça para os “juridicamente pobres” é um solução possível para garantir o livre acesso ao Judiciário. No entanto, concedida de forma irrestrita, a gratuidade pode induzir à litigância frívola. O presente artigo emprega a Análise Econômica do Direito para analisar a estrutura de incentivos dos agentes privados criada pela gratuidade de justiça e explora suas consequências sociais.

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Robert J. Condlin

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Recent Reforms In Eu Law: Recognition And Enforcement Of Judgments, Samuel P. Baumgartner

Samuel P. Baumgartner

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, …

Aereo's Errors, Ira Steven Nathenson

Ira Steven Nathenson

This article scrutinizes the many troubling errors made by the United States Supreme Court in its decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereo’s streaming television service allowed subscribers to watch broadcast television on a computer, tablet, or smartphone without requiring them to be directly connected to cable, satellite, or a local antenna. Aereo’s system was designed to comply with existing copyright law by using thousands of antennas, each of which was designated for only one subscriber at a time. Aereo was sued for copyright infringement by a number of leading television broadcasters. The United States Supreme Court, …

When The Mountain Goes To Mohammed: The Internet And Judicial Decision-Making, Layne S. Keele

Layne S. Keele

Judges increasingly are scouring the Internet in search of case-related facts, often without the parties’ knowledge. This article grapples with the question of what limits, if any, should circumscribe judicial Internet use. Drawing a distinction between online searches for adjudicative facts and online research into legislative facts, I argue that the former are always improper, while the propriety of the latter depends largely on one’s view of the role of the judiciary. In both cases, Internet research creates unique risks not found with other kinds of research, and this article offers some suggestions for alleviating those risks. This article also …

Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger

Scott Dodson

This essay, adapted from the video presentation available at http://vimeo.com/89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative—of a decline in pleading liberality from Conley to Twombly to Iqbal—is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope to introduce a new visual format for academic scholarship that capitalizes on the virtues of narration, graphics, mapping, online accessibility, …