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Articles 331 - 360 of 550
Full-Text Articles in Civil Procedure
Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen
Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen
St. Mary's Law Journal
Abstract forthcoming
Policy Considerations And Implications In United States V. Bryant, Jessica Larsen
Policy Considerations And Implications In United States V. Bryant, Jessica Larsen
Northwestern Journal of Law & Social Policy
No abstract provided.
Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii
Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming
When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner
When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner
Texas A&M Law Review
In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …
Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law
Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Justice Godfrey And The Rules: Procedure As Substance, L. Kinvin Wroth
Justice Godfrey And The Rules: Procedure As Substance, L. Kinvin Wroth
Maine Law Review
At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow.
States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin
States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin
University of Richmond Law Review
No abstract provided.
Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed
Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed
Georgia State University Law Review
Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence standard, …
Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark
Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark
Faculty Articles
We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …
Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington
Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington
Dickinson Law Review (2017-Present)
As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that opinion, …
The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife
The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife
University of Richmond Law Review
No abstract provided.
The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife
The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife
Law Student Publications
"State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, …
Opting Out Of Discovery, Jay Tidmarsh
Opting Out Of Discovery, Jay Tidmarsh
Journal Articles
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger
Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.
Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta
Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta
Fordham Law Review
A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person[s] admitted to conduct cases in any …
Civil Procedure: Class Action Fee And Cost Awards, Morris Ratner
Civil Procedure: Class Action Fee And Cost Awards, Morris Ratner
The Judges' Book
No abstract provided.
Civil Procedure: Certifying An Opt-In Class Under Rule 23, Scott Dodson
Civil Procedure: Certifying An Opt-In Class Under Rule 23, Scott Dodson
The Judges' Book
No abstract provided.
Civil Procedure: How To Apply Diversity Jurisdiction In A Multiparty Case, Scott Dodson
Civil Procedure: How To Apply Diversity Jurisdiction In A Multiparty Case, Scott Dodson
The Judges' Book
No abstract provided.
The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya
The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya
PhD Dissertations
This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the …
It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring
It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring
Fordham Law Review
This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.
It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring
It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring
Fordham Law Review
This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.
Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson
Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson
Notre Dame Law Review
Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …
Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin
Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin
Law & Economics Working Papers
A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …
Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan
Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan
Faculty Articles
Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …
Active Judging And Access To Justice, Anna Carpenter
Active Judging And Access To Justice, Anna Carpenter
Faculty Articles
"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …
Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds
Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds
Georgia Law Review
The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve …
Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm
Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm
Faculty Scholarship
No abstract provided.
A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, Areto A. Imoukuede, Jim Wilets
A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, Areto A. Imoukuede, Jim Wilets
Journal Publications
This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of "trial by battle," has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English "trial by battle." This "trial by battle" is often characterized in the context of speech by terms such as the 'marketplace of ideas," or in the context of economics by terms such as "the law of the jungle.," Even resolution of basic Constitutional concepts are subject …
A Prescription For Overcoming Gender Inequity In Complex Litigation: An Idea Whose Time Has Come, Suzette M. Malveaux
A Prescription For Overcoming Gender Inequity In Complex Litigation: An Idea Whose Time Has Come, Suzette M. Malveaux
Publications
No abstract provided.
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic
Brooklyn Journal of Corporate, Financial & Commercial Law
The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …