Civil Procedure Commons^™

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson

Fordham Law Review

The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of reappearing, …

What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler

Fordham Law Review

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and workers. In …

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s presidency …

Asbestos Trust Transparency, Mark A. Behrens

Fordham Law Review

Originally and for many years, the primary defendants in asbestos cases were companies that mined asbestos or manufactured amphibole-containing thermal insulation. Hundreds of thousands of claims were filed against the major asbestos producers, such as Johns-Manville Corp., Owens Corning Corp., and W.R. Grace & Co. By the late 1990s, asbestos litigation had reached such proportions that the U.S. Supreme Court noted the “elephantine mass” of cases and referred to the litigation as a “crisis.” Mass filings pressured “most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation. Following a 2000–2002 …

The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt

Fordham Law Review

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article …

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

In November 2014, the Duke Law Judicial Studies Center, which became the Bolch Judicial Institute in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of GUIDELINES AND PRACTICES prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team’s work product, the GUIDELINES AND PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles.

Most of …

A Fox In The Henhouse: Applying California's Delayed Discovery Rule In Federal Court, Samuel Donohue

Loyola of Los Angeles Law Review

No abstract provided.

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

None.

Trial Practice And Procedure, John O'Shea Sullivan, Tala Amirfazli, Adelyn B. Boleman

Mercer Law Review

The 2017 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, statutory interpretation, and federal subject-matter jurisdiction.

Getting Schooled: The United States Court Of Appeals For The Eleventh Circuit Holds That The Federal Government Need Not Show "Good Cause" Before Settling And Dismissing A Pending Qui Tam Action Against College, Laura Leigh Fox

Mercer Law Review

In United States v. Everglades College, Inc., a case of first impression in the United States Court of Appeals for the Eleventh Circuit, the court interpreted the good cause intervention requirement of § 3730(c)(3) of Title 31 of the United States Code (U.S.C.). The court was asked to determine whether the United States needed to show "good cause" for intervening in a qui tam action brought by two private individuals under the False Claims Act (FCA). The government, after originally declining to proceed with the FCA action itself, eventually decided to "intervene" while the action was pending on the …

Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima

Brooklyn Law Review

Third-party funding (TPLF) is when a nonparty, who does not have a direct stake in the litigation, funds a lawsuit. There are varying motivations that drive TPLF arrangements—including investors offering loans to receive a portion of the settlement or public interest groups sponsoring impact litigation. This note discusses a specific mode of TPLF that is motivated by a personal interest in the lawsuit rather than monetary gain, referred to as “malice maintenance.” At common law, maintenance was prohibited to prevent powerful and wealthy individuals form taking advantage of the court system. The majority of states today, however, permit at least …

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

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 …

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

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.

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and all …

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review (2017-Present)

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV …

Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux

Maine Law Review

In Long v. Long the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a district court divorce decree dividing the parties' residence of thirteen years as marital property, even though the majority of the funds used for its purchase were traceable to non-marital property the husband had acquired prior to the marriage. The governing statute instructed the district court to make an “equitable” disposition of all property acquired by the spouses during marriage, but required that it first “set apart to each spouse the spouse's [separate] property,” including property acquired during marriage by a spouse “in exchange for …

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, …

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

In Re Trulia: Revisited And Revitalized, Emma Weiss

Law Student Publications

"After an escalation in deal litigation that culminated with challenges to 95% of $100,000,000 deals, merger objection litigation that ends in disclosure-only settlements has become a topic of great concern. These cases are concerning because it seems implausible that 95% of all mergers are executed carelessly. The problematic cases all follow a similar pattern. When a merger is announced, multiple shareholder plaintiffs challenge the transaction in multiple jurisdictions. Plaintiffs and corporate defendants then quickly agree to a disclosure-only settlement, wherein the plaintiffs receive trivial supplemental disclosures about the transaction. In return, defendants receive a broad release from liability for future …

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant

Oklahoma Law Review

No abstract provided.

In Re Trulia: Revisited And Revitalized, Emma Weiss

University of Richmond Law Review

No abstract provided.

Class Problem!: Why The Inconsistent Application Of Rule 23'S Class Certification Requirements During Overbreadth Analysis Is A Threat To Litigant Certainty, David I. Berman

Fordham Law Review

Rule 23 of the Federal Rules of Civil Procedure is home to the class action device. It is well-documented that this rule significantly impacts our legal system. As a result, the need for its effective utilization has been apparent since its introduction. Despite this, federal courts have inconsistently applied the rule during their analyses of overbroad class definitions at the class certification stage. Consequently, parties involved in such litigation have been exposed to unnecessary costs and the potential for forum shopping. Nonetheless, this judicial inconsistency has gone largely unrecognized because it does not implicate the results of class certification. Hence, …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …