Civil Procedure Commons^™

What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman

Faculty Scholarship

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak

Maine Law Review

The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …

Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak

Maine Law Review

The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …

Trial Handbook For Maine Lawyers, Joel C. Martin

Maine Law Review

Lawyers Cooperative Publishing has issued trial handbooks for practitioners in some twenty-three states. One now appears for Maine lawyers, under the supervision of Bob Stolt of the Maine Bar. Trial Handbook for Maine Lawyers is a single-volume compendium of Maine precedent and practice as they relate to trials. Excluding the discovery matters that precede the trial and the appeal that may follow it, the book focuses on the actual conduct of the trial, from jury selection to verdict and judgment. In between, it covers the necessary matters: opening statements, the order and burden of proof, examination of witnesses, evidence, damages, …

Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley

Maine Law Review

The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

Putting The Notice Back Into Pleading, Robin Effron

Faculty Scholarship

No abstract provided.

The Constitutionality Of Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t.

This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of …

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Trial Practice And Procedure, Brandon L. Peak, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks, Ramsey B. Prather, Michael F. Williford

Mercer Law Review

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the survey period of this publication.

• Appeals
• Apportionment
• Attorney's Fees
• Damages
• Discovery, Evidence, and Sanctions
• Dismissal and Renewal
• Jurisdiction and Venue
• Jury Instructions
• Offers of Judgment
• Statutes of Limitations

Civil Procedure And Economic Inequality, Maureen Carroll

Articles

How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

Foreword, Robert Klonoff

Lewis & Clark Law Review

This Symposium is entitled, “Class Actions, Mass Torts, and MDLs: The Next 50 Years.” It consists of a collection of articles by leading scholars and practitioners. All of the articles were presented at a live conference—co-sponsored by the Pound Civil Justice Institute—held at Lewis & Clark Law School on November 1 and 2, 2019.

Layers Of Lawyers: Parsing The Complexities Of Claimant Representation In Mass Tort Mdls, Lynn A. Baker, Stephen J. Herman

Lewis & Clark Law Review

The individual plaintiff in an MDL is subject to the efforts and decisions of numerous different attorneys, including many whom the plaintiff did not choose but who stand to share in any fees resulting from the plaintiff’s case. Which lawyers effectively represent the MDL plaintiff, at what point(s) in time, for what purpose(s), and with what obligations and potential liability to that plaintiff? What obligations and potential liability do the MDL leadership attorneys have to their own individually retained clients and other litigants in the MDL, and how should these attorneys handle any perceived conflicts in their obligations to the …

Procedural Self-Inflicted Wounds?, Joshua P. Davis, Brian J. Devine

Lewis & Clark Law Review

A proposal has recently come before the Federal Civil Rules Advisory Commit- tee to expand the ability of parties in multidistrict litigation to seek immediate interlocutory appellate review. This Essay suggests that the proposal is unwise as a matter of policy. It would make MDL litigation more expensive and less efficient. Counterintuitively, it may even harm the very large corporations who are championing the change. This Essay explains why that might occur—why large corporate defendants may pursue legal innovations that harm them—a possibility with implications well beyond interlocutory appellate review.

In Defense Of The Cy-Pres-Only Class Action, Robert G. Bone

Lewis & Clark Law Review

Cy pres is frequently used to dispose of class action settlement funds, yet it is one of the most controversial aspects of class action practice. Perhaps the most contested use of cy pres is what I call the “cy-pres-only class action”: a settlement class action in which the judge certifies a class and approves a settlement that expressly provides for a third-party charity to receive all the settlement funds. In these cases, the judge exercises her judicial power to enable a lawsuit that compensates a third party who does not have legal rights at stake and does so without providing …

The Importance Of Cy Pres In Modern Class Action Jurisprudence And Myths Concerning Its Use, Gerson H. Smoger

Lewis & Clark Law Review

When class actions resolve, it is common for some or even all funds paid to the class to remain undistributed. All U.S. circuits, 40 states, and the Class Action Fairness Act have permitted undistributed funds to be distributed as cy pres. Recently, a few commentators have voiced constitutional objections to cy pres, based upon standing pursuant to Article III, the Rules Enabling Act, and the First Amendment. However, these analyses generally ignore the congressional mandate found within Rule 23 and the power of the courts to supervise cy pres distribution. Finally, the following recommendations are made: such awards should not …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in …

Proof At The Salem Witch Trials, Leonard M. Niehoff

Articles

As of the writing of this article, President Donald Trump's tweets have included roughly 400 references to "witch hunts." In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase "witch hunt" serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination.

Still, most practicing litigators probably …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Better By The Dozen: Bringing Back The Twelve-Person Civil Jury, Steven Gensler, Lee Rosenthal, Patrick Higginbotham

Other Faculty Publications

A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was …

Preface, Jennie Lee Anderson

Lewis & Clark Law Review

On November 1–2, 2019, the Pound Civil Justice Institute and Lewis & Clark Law School together presented a unique academic symposium, addressing “Class Actions, Mass Torts, and MDLS: The Next 50 Years.” This symposium brought together distinguished legal academics, judges, and practitioners to consider the present status of class actions, mass torts, and multidistrict litigation in the United States, as well as possible future developments.

What Is A Fair Price For Objector Blackmail? Class Action Objectors And The 2018 Amendments To Rule 23, Elizabeth J. Cabraser, Adam N. Steinman

Lewis & Clark Law Review

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

Symposium Interview On Aggregate Litigation, Arthur R. Miller, Robert Klonoff

Lewis & Clark Law Review

Professor Arthur R. Miller joined Professor Robert Klonoff for a Q&A session at Lewis & Clark Law School.

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …

The Shadow Judiciary, Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker

Scholarly Works

Magistrate judges function as a shadow judiciary, assisting U.S. district court judges-and sometimes standing in their shoes-in managing caseloads, resolving disputes, making law, and choosing winners and losers. Yet we lack basic knowledge about magistrates themselves, the rules that govern their activity, and the ways in which they execute their duties. To fill those gaps, this Article offers a detailed typology of the district-level local rules and standing orders that govern magistrate operations in civil cases. It also describes a case study of ten years of magistrate practice in a single federal district court, the U.S. District Court for the …