Civil Procedure Commons^™

Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan

Maine Law Review

With increasing frequency, federal courts throughout the nation have confronted a multiplicity of "toxic tort" claims, claims for relief arising from chronic and latent illnesses or diseases allegedly caused by toxic substances. Toxic substances are substances whose manufacture, processing, distribution, use, or disposal presents or will present an unreasonable risk of injury to a person's health or to the environment. Because many of these unreasonable health risks are caused by consumer and industrial products, many toxic tort claims are actually "toxic product" claims. Examples of toxic product claims include those arising from the use, exposure to, or consumption of chemicals …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

In Pursuit Of The Appropriate Standard Of Liability For Defective Product Designs, Christina M. Moylan

Maine Law Review

Since the advent of strict products liability with the holding in Greenman v. Yuba Products Co. in 1963 and the promulgation of section 402A of the Restatement [Second] of Torts ("Restatement") in 1965, courts have struggled to strike an appropriate balance between competing social policies with respect to liability for defective products. On the one hand, those injured by defective products should not be burdened by the contractual intricacies of the law of sales or the onerous (virtually insurmountable in products cases) evidentiary obstacles of negligence. On the other hand, most courts agree that manufacturers and distributors should not be …

Cy Pres Silliness: Remedies That Do Not Remediate The Harm, Phil Pillari

Northwestern University Law Review

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

An Updated Practical Guide To Taking And Defending Depositions, Gary S. Gildin

Dickinson Law Review (2017-Present)

The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.

Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

Lawyerless Litigants, Filing Fees, Transaction Costs, And The Federal Courts: Learning From Scales, Judith Resnik, Henry Wu, Jenn Dikler, David T. Wong, Romina Lilollari, Claire Stobb, Elizabeth Beling, Avital Fried, Anna Selbrede, Jack Sollows, Mikael Tessema, Julia Udell

Northwestern University Law Review

Two Latin phrases describing litigants—pro se (for oneself) and in forma pauperis (IFP, as a poor person)—prompt this inquiry into the relationship between self-representation and requests for filing fee waivers. We sketch the governing legal principles for people seeking relief in the federal courts, the sources of income of the federal judiciary, the differing regimes to which Congress has subjected incarcerated and nonincarcerated people filing civil lawsuits, and analyses enabled by SCALES, a newly available database that coded 2016 and 2017 federal court docket sheets. This Essay’s account of what can be learned and of the data gaps demonstrates the …

Elastic Batch And Bellwether Proceedings In Mass Arbitration, Bennett Rogers

Notre Dame Law Review

This Note will first succinctly review the history of aggregative litigation, including the decline of traditional Rule 23 class actions, the proliferation of arbitration agreements, and both the legislative and judicial support for this change. Next, it will examine plaintiffs’ response to the rise of arbitration with the creation of mass arbitration networks and explain why some companies started to move away from arbitration. Then it will consider the defense bar’s response to mass arbitration with batch and bellwether proceedings, examine the current bellwether arbitration cases moving through the courts, and introduce the latest arbitral institution making headways with its …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Scope Of Election Litigation, Michael T. Morley

Washington and Lee Law Review

One way to think about the “scope” of a case is based on the range of parties who are—or must be—involved in it. The broader a case’s scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time-consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to strict time constraints. …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Houston, We Have A Problem: The D.C. Circuit Closes Pathway To National Judicial Review In Sierra Club V. Environmental Protection Agency, Alison O. Moyer

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Trying Out The Electronic Case Management System In The Uae And Its Compliance With Fundamental Judicial Guarantees, Abdulla A. Alkhatib

An-Najah University Journal for Research - B (Humanities)

This study considers the Electronic Case Management System (ECMS) and the challenges it faces in achieving basic litigation guarantees, according to the legislation of the UAE, and comparing them with the practices followed by the judicial authorities. The importance of the study lies in the fact that electronic justice has replaced the traditional justice system, where all procedures from registering the case, submitting memoranda, conducting trials, issuing judgments, appealing, and implementing them are carried out through it remotely. This raised the question about the extent to which ECMS provides basic litigation guarantees, specifically the principles of equality, confrontation, defense, and …

A Toothless Tcpa: An Analysis Of Article Iii Standing, Personal Jurisdiction, And The Disjuncture Problem’S Impact On The Efficacy Of The Telephone Consumer Protection Act, Sebastian W. Johnson

University of Cincinnati Law Review

No abstract provided.

Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman

Brooklyn Law Review

Interlocutory mandatory injunctions can be an important remedy during the pendency of a trial. With its decision in R. v. Canadian Broadcasting Corp, the Supreme Court of Canada revised its test for an interlocutory mandatory injunction, holding that it should require a higher threshold and be therefore harder to obtain than an interlocutory prohibitive injunction. This higher threshold requires that the applicant demonstrate a strong prima facie case that it will succeed at trial based on law and evidence. This change adds uncertainty to the process, ultimately complicating and adding costs to litigation.

Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill

Brooklyn Law Review

Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents …

No Sword, No Shield, No Problem: Ai In Pro Se Section 1983 Suits, Michaela Calhoun

University of Colorado Law Review Forum

Originating during the Reconstruction era, 42 U.S.C. 1983 emerged as a legislative tool to safeguard individuals’ constitutional rights and liberties. Initially designed to combat state-sanctioned violence, its efficacy has been eroded over time by subsequent judicial and legislative action. Unfortunately, the current state of Section 1983 falls short of this envisioned role, particularly for incarcerated individuals who find themselves navigating the complexities of the federal court system as pro se litigants.

Faced with a landscape devoid of resources, incarcerated individuals struggle to realize their constitutional rights, further perpetuating their collective status as a second-class citizenry—a status imposed by their own …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit’s 2023 class-action decisions continued to grapple with Article III standing requirements while also demonstrating, in two decisions, the court’s longstanding generally permissive posture toward approval of class-action settlements. A significant deviation from the latter tendency is the court’s increasingly isolated position on payment of incentive awards to class representatives. Alone among the circuits, the court prohibits such payments, creating an inter-circuit conflict that seems inevitably headed to the Supreme Court. In the meantime, within the circuit, class counsel face a unique hurdle in crafting settlements and dealing with class representatives.

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

The "Inherent Powers" Of Multidistrict Litigation Courts, Lynn A. Baker

Pepperdine Law Review

Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering …

Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery

Utah Law Review

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Can We Really Be The Change We Wish To See? The Inherent Limitations Of Citizen Suits In Remedying Environmental Injustice Under The Clean Air Act, Alexandra M. George

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

The Future Of State Standing And The Controversial Massachusetts V. Epa Decision: United States V. Texas And Biden V. Nebraska Provide Mixed Signals, Bradford Mank

Faculty Articles and Other Publications

An important question is under what circumstances should states have standing to sue the federal government. Should states have greater standing rights than private parties to protect states’ unique interests, or should all parties in federal courts have the same standing rights? In its 2007 decision Massachusetts v. EPA, the Supreme Court in a divided five-to-four decision stated that states are entitled to “special solicitude” for Article III standing in suits in federal courts, but a dissenting opinion argued that states ought to have the same standing rights as other parties in federal court. While Massachusetts initially appeared to …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …