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Fordham Law School

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Articles 91 - 109 of 109

Full-Text Articles in Civil Procedure

Typology Of Aggregate Settlements, A , Howard M. Erichson Jan 2004

Typology Of Aggregate Settlements, A , Howard M. Erichson

Faculty Scholarship

It is odd, considering how often lawyers engage in aggregate settlements, that no one seems able to explain what "aggregate settlement" means. It is one of the most important yet least defined terms in complex litigation. Lawyers and judges talk about aggregate settlements as though it were obvious what the term signifies and as though it describes a single thing. In fact, group settlements in multiparty litigation vary significantly. And they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This …

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Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson Jan 2004

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

Faculty Scholarship

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

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Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson Jan 2004

Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson

Faculty Scholarship

It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether …

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Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky Jan 2003

Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

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Exploring Methods To Improve Management And Fairness In Pro Se Cases: A Study Of The Pro Se Docket In The Southern District Of New York, Jonathan D. Rosenbloom Jan 2002

Exploring Methods To Improve Management And Fairness In Pro Se Cases: A Study Of The Pro Se Docket In The Southern District Of New York, Jonathan D. Rosenbloom

Fordham Urban Law Journal

This Article describes a study done in the Southern District of New York on pro se cases. Part I details the lack of current data and the methods used in the study. Part II provides the results of the study amd attempts to identify the areas of pro se litigation in which litigants are faced with the most problems and where improvement is needed. It also discusses the effects of the Prison Litigation Reform Act. Part III suggests a plan that will help courts run more smoothly in assisting pro se litigants.

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Symposium: Multidistrict Litigation And Aggregation Alternatives: Foreword, Howard M. Erichson Jan 2000

Symposium: Multidistrict Litigation And Aggregation Alternatives: Foreword, Howard M. Erichson

Faculty Scholarship

On March 30, 2001, a somewhat surprising discussion took place among two judges, two plaintiffs' lawyers, a defense lawyer, and a legal scholar. The occasion was a Seton Hall Law Review symposium on federal multidistrict litigation ("MDL"). What made the discussion surprising was not what the participants said of their experiences with MDL, but rather the extent to which they discussed things other than MDL. Much of the discussion addressed state court litigation beyond the reach of MDL, and federal court aggregation techniques other than MDL. While the presenters left no doubt that MDL retains a central role in the …

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Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson Jan 2000

Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson

Faculty Scholarship

Ask anyone who follows legal news to name the two biggest litigation news stories in the United States at the start of the twenty-first century, and they will answer without blinking: Microsoft and tobacco. The Microsoft litigation, they will tell you, claims a place in the pantheon of antitrust landmarks that includes Standard Oil, Alcoa, and AT&T. The tobacco litigation is the most massive in a string of mass torts including asbestos, Dalkon Shield, and breast implants; it is arguably the most important public health matter ever litigated. Microsoft and tobacco each fit so well and so interestingly in their …

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A Trial Judge's Perspective - Promoting Justice And Fairness While Protecting Privilege, Honorable Marian Blank Horn Jan 1999

A Trial Judge's Perspective - Promoting Justice And Fairness While Protecting Privilege, Honorable Marian Blank Horn

Fordham Urban Law Journal

This Article discusses the topic of privileged communications and ethics in the courtroom. The Article offers the unique perspective of a trial judge and his courtroom interactions with lawyers and witnesses alike. It discusses cases relating to established courtroom privileges, such as marriage, attorney/client and priest/penitent, as well as qualified privileges such as the journalism privilege. Further, it discusses the potential for new or novel privileges, such as the accountant/auditor-client work product privilege and the academic peer review privilege. Finally, the Article lays out suggestions for trial judges for how to best utilize the privilege rules while simultaneously promoting fairness …

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Interjurisdictional Preclusion, Howard M. Erichson Jan 1997

Interjurisdictional Preclusion, Howard M. Erichson

Faculty Scholarship

Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion1 more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. This article examines the problem of interjurisdictional preclusion, and, in particular, the problem of choice of preclusion law. Choice of-preclusion law cannot be appreciated in the abstract, but rather must be considered in light of litigation …

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Automatic Stays And Governmental Operations: How New York State Protects The Government From The Poor, Jack E. Pace Iii Jan 1996

Automatic Stays And Governmental Operations: How New York State Protects The Government From The Poor, Jack E. Pace Iii

Fordham Urban Law Journal

This note discusses two New York state procedural rules that endanger the poor by giving special treatment to the defendant whom low income plaintiffs most often face in court. First, the New York Civil Practice Law and Rules ("CPLR") allows the government an automatic stay, pending appeal, of all proceedings to enforce an adverse judgment or order. Second, The New York Court of Appeals' "governmental operations" rule creates a presumption against certifying class actions when the challenged action is a governmental operation. The author argues that these rules unfairly limit the ability of poor people to recover against the government …

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Nationwide Personal Jurisdiction In All Federal Question Cases: A New Rule 4 Note, Howard M. Erichson Jan 1989

Nationwide Personal Jurisdiction In All Federal Question Cases: A New Rule 4 Note, Howard M. Erichson

Faculty Scholarship

Every litigator who remembers first year civil procedure knows that the personal jurisdiction1 of federal courts is limited by state territorial boundaries. That limitation, however, may soon disappear in federal question cases. A new rule of civil procedure, currently under consideration by the federal rulemakers, would provide for nationwide service of process in all federal question cases. The proposed rule would profoundly affect forum selection in the federal courts. This Note argues in favor of the adoption of the new Rule 4's nationwide personal jurisdiction provision. Not only would the new Rule 4 be a legitimate exercise of authority, but …

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The Compatibility Of A Federal Magistrate's Final Judgment With Nonmutual Issue Preclusion , Allison G. Danzig Jan 1987

The Compatibility Of A Federal Magistrate's Final Judgment With Nonmutual Issue Preclusion , Allison G. Danzig

Fordham Urban Law Journal

This Note examines the propriety of issue preclusion as applied to a magistrate's factual determination by providing an overview of section 636(c) of the Magistrate Act of 1979 and the decisions holding its provisions constitutional. It briefly looks at the expanded use of issue preclusion, which is largely due to the elimination of the mutuality agreement. After reviewing the policies that are promoted through the use of issue preclusion in such a manner, the Note concludes that nonmutual issue preclusion should apply to a magistrate's determination in a civil trial only if the parties are aware of the consequences that …

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For Every Weapon, A Counterweapon: The Revival Of Rule 68, John P. Woods Jan 1986

For Every Weapon, A Counterweapon: The Revival Of Rule 68, John P. Woods

Fordham Urban Law Journal

Rule 68 of the Federal Rules of Civil Procedure applies generally where a non-moving party's settlement offer is rejected, and the court judgment awarded to the moving party, or claimant, is for less than the prior offer. The non-moving party may then be entitled to "costs incurred after the making of the offer." In Marek v. Chesny, the Court made it clear that "costs" includes attorney's fees. Congress should consider revising Rule 68 to clarify its application. However, Rule 68 appropriately induces plaintiffs to thoroughly consider a defendant's offer, under threat that rejection of the offer may include reducing attorney's …

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Pendant Party Jurisdiction And Section 1983: When Has Congress "By Implication Negated" Jurisdiction?, Peter E. Schomer Jan 1986

Pendant Party Jurisdiction And Section 1983: When Has Congress "By Implication Negated" Jurisdiction?, Peter E. Schomer

Fordham Urban Law Journal

This Note discusses how many lower federal courts, in deciding when to allow state claims to be brought in federal court under the doctrine of pendant party jurisdiction, have interpreted the Supreme Court's "Aldinger test" in a far more restrictive manner than what the Supreme Court had intended. Additionally, the Note traces the history of the doctrines of pendant jurisdiction, pendant party jurisdiction and ancillary jurisdiction. The Note also discusses of the dispute raging about the actual validity of pendant party jurisdiction, ,focusing particularly on section 1983 cases. In conclusion, the Note articulates the process and analysis a court must …

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The Effects Of Hensley V. Eckerhart On The Award Of Attorney's Fees, E. Wayne Powell Jan 1985

The Effects Of Hensley V. Eckerhart On The Award Of Attorney's Fees, E. Wayne Powell

Fordham Urban Law Journal

The traditional "American Rule" regarding attorney fees did not allow for prevailing parties to collect attorney's fees from the unsuccessful party. In response to the Supreme Court's decision in Alyeska v. Wilderness Society, which reaffirmed the American Rule and its limited exceptions, Congress passed the Civil Rights Attorneys Fees Award Act of 1976. In its wake, courts began awarding attorneys fees to prevailing parties. The Supreme Court's decision in Hensley v. Eckerhart, focused on the correlation between the degree of success of prevailing plaintiffs and the amount of the attorney's fees awarded. This Article discusses the effects on fee awards …

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Recent Developments In Conflicts Of Law Notes, Michael M. Martin Jan 1985

Recent Developments In Conflicts Of Law Notes, Michael M. Martin

Faculty Scholarship

No abstract provided.

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N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson Jan 1984

N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson

Fordham Urban Law Journal

A multitude of provisions scattered throughout New York's consolidated and unconsolidated laws require that plaintiffs serve "notice of claim" of their tort actions on defendant public corporations. New York General Municipal Law section 50-e governs New York procedure for serving this notice of claim upon public corporations including when and upon whom service should be made, the form and contents of the notice of claim, and how notice of claim may be served. Compliance with the requirements of section 50-e is a condition precedent to commencement of a tort action against a public corporation wherever such notice of claim is …

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The Right To Disclosure Of Nlrb Documents Under The Freedom Of Information Act Jan 1976

The Right To Disclosure Of Nlrb Documents Under The Freedom Of Information Act

Fordham Urban Law Journal

This note analyzes the Freedom of Information Act (FOIA), especially as it pertains to the National Labor Relations Board (NLRB), which has been particularly affected by requests for disclosure of documents. The NLRB's function is to settle labor disputes and remedy unfair labor practices with a minimum of delay. The note argues that allowing Board proceedings to be enjoined via pre-hearing FOIA suits only encourages parties to use these suits as dilatory measures. The note suggests that the FOIA was never intended to be used as a tool of discovery and argues for a stop to the increase in discovery-injunction …

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De Minimis Curat Lex, Brian G. Driscoll Jan 1974

De Minimis Curat Lex, Brian G. Driscoll

Fordham Urban Law Journal

There is a great deal of civil litigation in Urban areas and courts are unable to deal efficiently and justly with the cases that are brought before them. Additionally, there are many cases concerning a small amount of money and disputes in which citizens are in lower and middle economic classes that are never brought before the courts. The nature of the judicial system discourages these small claims but even these relatively small claims may be significant in relation to the income of some of these potential litigants. Handling this problem needs to be done through the small claims court. …

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