Civil Procedure Commons^™

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Georgia's New Evidence Code - An Overview, Paul S. Milich

Georgia State University Law Review

On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.

The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.

Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …

Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich

Pepperdine Dispute Resolution Law Journal

In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …

Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis

Pepperdine Dispute Resolution Law Journal

This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

Is Three A Crowd? Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations , David J. Mclean, Sean-Patrick Wilson

Pepperdine Dispute Resolution Law Journal

This paper will discuss issues surrounding party-appointed arbitrators on tripartite panels and will attempt to offer practical observations about what parties can expect under the tripartite system.

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Opening Remarks, Kenneth Starr

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis

Pepperdine Dispute Resolution Law Journal

I really do believe that, as your title suggests, the civil justice system is at a crossroads and that, as a result, we all have new opportunities and old responsibilities. Four years ago, concerns about skyrocketing costs, unprofessional gamesmanship, and long delays in civil litigation were the stuff of grousing and shoulder shrugs. We all had a level of fatalism or cynicism about our inability to change any of those factors. Now, that is not true. There is a window of opportunity that has opened-a convergence of various forces resulting in a willingness of decision-makers to consider change. As a …

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young

Pepperdine Dispute Resolution Law Journal

Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques will serve as the first article in a series of articles I have planned on the use of active learning techniques to teach the core values of mediation: mediator impartiality, party self-determination, confidentiality, and quality of the process/mediator competence. This article is the second article in that series. In Section III, I summarize the first article in the series. In Section IV, I describe the role of mediator impartiality as a core value of the mediation field. I evaluate the definitions of mediation found in several ethics codes as …

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr.

Pepperdine Dispute Resolution Law Journal

This article will consider the two dramatic changes that collaborative practice [CP] brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers' counseling techniques. Part II defines CP and compares it to traditional negotiation-pending-litigation. Part III considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part IV considers the type of client-counseling that is often generated by CP-lawyers in CP may strongly encourage clients …

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky

Faculty Scholarship

This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects …

Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod

University of Richmond Law Review

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010through June 2011 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 2011 session that relates to civil practice.

Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender

Seattle University Law Review

This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil- commitment proceedings. This Comment clarifies the existing law governing the determination of a party’s right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard …

Procedure, Substance, And Erie, Jay Tidmarsh

Journal Articles

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal courts …

Deadly Silence: An Assessment Of Emergency Alert Systems For Lincoln County, Georgia, Gretchen B. Keneson,

Georgia Journal of Public Policy

Rural counties have a predisposition to sustaining catastrophic losses during natural emergencies. These counties tend to have poorer economic conditions that exacerbate attempts at hazard mitigation.  Emergency Alerts Systems (EAS) are the most efficient and effective ways to provide information of impending danger.  This study will compare and contrast different EAS to determine which would accommodate the needs of a community. The most successful way for most counties to alert citizens is through the use of a combination of redundant systems. For pastoral Lincoln County, Georgia the optimal systems are an alert siren and auto call capabilities.  Both of these …

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

Law Faculty Scholarship

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …

Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy

UIC Law Open Access Faculty Scholarship

No abstract provided.

Survey Of Illinois Law: At Long Last, A Long Look At Respondents In Discovery, 35 S. Ill. U. L.J. 703 (2011), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

An Expectation Of Empathy, Steve Leben

Faculty Works

No abstract provided.

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation …