Civil Procedure Commons^™

Appealability, Under The Collateral Order Doctrine, Of Orders Denying Motions For Appointment Of Counsel In Federal Civil Litigation After Richardson-Merrell, Inc. V. Koller, Kevin G. Dumbach

Touro Law Review

No abstract provided.

Precluding Government Relitigation Of Statutory Interpretations: Clark-Cowlitz Joint Operating Agency V. Federal Energy Regulatory Commission, Bradley Bishop Jones

Seattle University Law Review

This Note explores the issue of the applicability of the preclusion doctrines against the government. Specific focus is placed upon the doctrines’ application in cases where the government has previously litigated a question of statutory interpretation. The exploration begins with the recent case of Clark-Cowlitz Joint Operating Agency v. Federal Energy Regulatory Commission (Clark-Cowlitz), a classic factual setting for analyzing this issue. The Note then briefly examines the historical developments of the preclusion doctrines and the United States Supreme Court’s recent and continuing struggle with the application of the doctrines against the government. It is the position of …

A Judicial Perspective On Expert Discovery Under Federal Rule 26(B)(4): An Empirical Study Of Trial Court Judges And A Proposed Amendment, 20 J. Marshall L. Rev. 377 (1987), David S. Day, Charvin Dixon

UIC Law Review

No abstract provided.

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year, legislation was enacted relating to twenty-seven of the sixty-five articles of the CPLR. Additionally, there have been significant developments in the decisional law of res judicata. These and other areas should be of interest to the practitioner.

Personal Jurisdiction And The Stream Of Commerce, A. Kimberley Dayton

Faculty Scholarship

This article evaluates the stream of commerce theory of personaljurisdiction in light of existing precedent and the constitutionalimperative of due process. Part II briefly describes the factualbackground of Asahi and the various opinions rendered in the case.Part m outlines the development of jurisdictional doctrine since International Shoe, emphasizing the meaning of "purposeful availment" and its fluid role in the due process equation governing statecourt jurisdiction. Part IV then traces the evolution of the stream of commerce theory since International Shoe. Part V examines and rejects criticisms of the stream of commerce theory, and concludes that under any reasonabre interpretation of …

Mass And Repetitive Litigation In The Federal Courts, Edward H. Cooper

Articles

The topic of "Mass and Repetitive Litigation in the Federal Courts" is even more vast and unwieldy than the complex litigations it brings to mind. The implicit assignment to address the topic by contemplating the events that may occur over the next century is still more daunting. One hundred years bring untellable changes to all of our social and political institutions, judicial and otherwise. Rather than attempt to meet the challenge by uttering bold prophecies of the circumstances that will confront our successors of the future, I will follow an easier course. This paper will select a few illustrations of …

Aronson And Its Progeny: Limiting Derivative Actions Through Demand Requirements, 19 J. Marshall L. Rev. 571 (1986), Andrew Emerson

UIC Law Review

No abstract provided.

Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank

University of Michigan Journal of Law Reform

It is no surprise that, having included "facilitating the settlement of the case" as one of the objectives of pretrial conferences in the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure, the Advisory Committee has turned its attention to Rule 68. The Rule was intended to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer "costs." But, in the Advisory Committee's view, Rule 68 has proved ineffective. The concern, apparently, is not that too few civil cases filed in federal court are settled-less …

Closing Argument Procedure, J. Alexander Tanford

Articles by Maurer Faculty

Legal scholars have paid little attention to closing arguments. There are few publications that touch on this phase of the trial process, most focusing on the substance of prosecution arguments in criminal cases. As a result, too few of the legal principles and doctrines of closing argument procedure are understood, especially in civil trials. The purpose of this article is to set out a more comprehensive picture of this body of law than has been done previously, and to define and analyze its major doctrines.

Jury Instructions: A Bibliography. Part I: Civil Jury Instructions, Cheryl R. Nyberg, Carol Boast

Librarians' Articles

Pattern jury instructions are used by trial judges to explain the law to jurors in language that they can understand and that provide consistency from one trial to another. This bibliography contains references to 156 recent and dated compilations of civil jury instructions. An index to acronyms for civil jury instructions is included.

Developing Standards Under Amended Rule 11 Of The Federal Rules Of Civil Procedure, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Rule 11 of the Federal Rules of Civil Procedure is designed to ensure the integrity of pleadings and other papers filed in federal district court. The rule was amended in 1983 in response to the widely held perception that its provisions, as originally promulgated, had proven ineffective in deterring strike suits, litigation abuses, and lawsuits used as instruments of delay and oppression. Amended Rule 11 introduces more stringent standards designed to make attorneys stop and think about their legal obligations before signing pleadings and motions. These obligations are reinforced by imposing mandatory sanctions upon violation of the standards. The …

Can Mental Health Professionals Predict Judicial Decisionmaking? Constitutional And Tort Liability Aspects Of The Right Of The Institutionalized Mentally Disabled To Refuse Treatment: On The Cutting Edge, Michael L. Perlin

Touro Law Review

No abstract provided.

The Arbitrability Of Domestic Antitrust Claims: An Evaluation Of The American Safety Doctrine, Edward G. Heilig

Touro Law Review

No abstract provided.

Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos

Michigan Law Review

This Note explores the problem of abuse of the class action device during the pretrial settlement process. Part I analyzes the underlying sources of potential abuse in pretrial settlement negotiations. Part II assesses the adequacy of the standards currently used by courts to detect collusive class action settlements. Part III concludes that the appointment of a neutral third-party guardian to oversee the pretrial negotiation process furthers the judicial policy of encouraging settlements while protecting the interests of the absentee class.

The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs

University of Michigan Journal of Law Reform

This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …

Modern Evidence And The Expert Witness, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

1985 Civil Rule Amendments, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Effective January 1, 1985, significant amendments were made to several of the Colorado Rules of Civil Procedure ("C.R.C.P."). The most important amendments were to C.R.C.P. Rules 59 (posttrial) motions) and 103 (garnishment).' However, there were also significant amendments to C.R.C.P. Rules 58 (entry of judgment), 52 (findings by the court), 50 (motion for directed verdict), and 6 (time), as well as Colorado Appellate Rules ("C.A.R.") Rule 4 (appeals).

Offers Of Judgment And Rule 68: A Response To The Chief Justice, 18 J. Marshall L. Rev. 341 (1985), Lynn Sanders Branham

UIC Law Review

No abstract provided.

The August 1, 1983 Amendments To The Federal Rules Of Civil Procedure: A Critical Evaluation And A Proposal For More Effective Discovery Through Local Rules, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The 1983 amendments to the Federal Rules of Civil Procedure (1983 amendments) represent by far the most ambitious effort to date to remedy the widely perceived problem of discovery abuse in federal practice. These amendments are designed to improve the conduct of discovery by eliminating improper practices and making discovery more cost-effective for the parties, and thereby helping the pretrial phase of an action to run more smoothly. The 1983 discovery amendments have three basic thrusts: (1) active involvement by the court in the pretrial phases of a case pursuant to rule 16; (2) recognition of specific limitations on …

Two Cheers For The Ali Restatement's Provisions On Foreign Discovery, Douglas E. Rosenthal, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

Collateral Estoppel - A Colorado Primer, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Perhaps no legal doctrine has been the source of so much confusion and misunderstanding as collateral estoppel. This is unfortunate since issues involving collateral estoppel arise in a large number of cases, and when properly raised are often determinative of the entire case. For the practicing attorney, it is just as important to know how to defend against an adversary's use of collateral estoppel as it is to know when and how to raise this doctrine offensively.

Being And Nothingness: Commencement And The Application Of Ohio Civil Rules 3(A) And 4(E), J. Patrick Browne

Cleveland State Law Review

As a general rule, a civil action comes into existence at the moment of commencement, and it ceases to exist as an action when the court journalizes a final judgment that adjudicates the rights of all of the parties and determines all of the claims involved in the action. Because the action comes into existence with commencement, it is important to define that precise moment in time when the action is deemed to have commenced. That is the task of Civil Rule 3(A), which states: "A civil action is commenced by filing a complaint with the court, if service is …

Discovery In Kentucky: An Overview, Richard H. Underwood

Law Faculty Scholarly Articles

Discovery receives short shrift in the law school curriculum. Although students are introduced to the subject in a first year course on Civil Procedure, the "bathtub effect" usually takes its toll by graduation day. That is, after the first year, the plug is pulled and the student's knowledge drains away. Moreover, it is difficult to teach discovery in third year programs on trial advocacy. Too much emphasis on discovery and pretrial would leave too little time for instruction on the mechanics of the actual trial. Even the experienced practitioner may not remember all the intricacies of discovery and may find …

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Statutes Of Limitations And Defendant Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that in defendant class actions the statute of limitations should be tolled as to all named and absent class members upon informal notice given by the plaintiff at the beginning of the suit. Part I examines the purposes of statutes of limitations and class actions, and the manner in which these purposes were reconciled in American Pipe. It concludes that American Pipe requires the creation of a tolling doctrine that promotes both the fair notice policy that underlies statutes of limitations and the concern for litigative economy that underlies rule 23 class actions. Part II then …

Conceptual Overburden In The System's Operation?: Of Judges And Scholars, Jurisdiction And All That, James Dickson Phillips Jr.

Michigan Law Review

A Review of Federal Practice and Procedure, Volumes 13-19: Jurisdiction and Related Matters by Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper

The Equal Access To Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980), P. Scott Mitchell

Florida State University Law Review

Civil Procedure-ATTORNEY'S FEES-RECOVERY OF ATTORNEY'S FEES AGAINST THE UNITED STATES

Discovery Of Nonparties' Tangible Things Under The Federal Rules Of Civil Procedure, Sarah N. Welling

Law Faculty Scholarly Articles

Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties' things, the whole discovery scheme for nonparties is rather …

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Class Actions: Judicial Control Of Defense Communication With Absent Class Members, Donald D. Levenhagen

Indiana Law Journal

No abstract provided.