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University of Michigan Law School

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Articles 151 - 180 of 607

Full-Text Articles in Civil Procedure

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr. Jun 1987

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

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The Costs Of Complexity, Stephen B. Burbank May 1987

The Costs Of Complexity, Stephen B. Burbank

Michigan Law Review

A Review of Complex Litigation: Cases and Materials on Advanced Civil Procedure by Richard L. Marcus and Edward F. Sherman

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The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross Feb 1987

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

Articles

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …

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Mass And Repetitive Litigation In The Federal Courts, Edward H. Cooper Jan 1987

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 …

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Police Interrogation And Confessions, Yale Kamisar Jan 1986

Police Interrogation And Confessions, Yale Kamisar

Book Chapters

In the police interrogation room, where, until the second third of the century, police practices were unscrutinized and virtually unregulated, constitutional ideals collide with the grim realities of law enforcement.

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Compulsory Process, Right To, Peter K. Westen Jan 1986

Compulsory Process, Right To, Peter K. Westen

Book Chapters

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses …

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Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank Jan 1986

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 …

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Hearsay Rule, Peter K. Westen Jan 1986

Hearsay Rule, Peter K. Westen

Book Chapters

The hearsay rule is a non constitutional rule of evidence which obtains in one form or another in every jurisdiction in the country. The rule provides that in the absence of explicit exceptions to the contrary, hearsay evidence of a matter in dispute is inadmissible as proof of the matter. Although jurisdictions define "hearsay" in different ways, the various definitions reflect a common principle: evidence that derives its relevance in a case from the belief of a person who is not present in court—and thus not under oath and not subject to cross-examination regarding his credibility—is of questionable probative value.

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The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert Jan 1986

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

Articles

My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

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Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos Nov 1985

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.

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The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs Oct 1985

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 …

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Relief From Final Judgment Under Rule 60(B)(1) Due To Judicial Errors Of Law, Michigan Law Review May 1985

Relief From Final Judgment Under Rule 60(B)(1) Due To Judicial Errors Of Law, Michigan Law Review

Michigan Law Review

This Note seeks to resolve these conflicts by proposing a sensible reading of rule 60(b )(1) that reconciles the basic philosophies underlying differing interpretations of the rule. Part I examines the history of rule 60(b)(l) and the policies espoused by the courts and commentators in considering whether the rule should be applied to judicial errors of law and concludes that courts should employ the rule to correct obvious judicial errors of law. Part II recommends a broad scope for rule 60(b )(1) motions, proposing that the only type of alleged judicial error outside the reach of such a motion should …

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Timing As Jurisdiction: Federal Civil Appeals In Context, Edward H. Cooper Jan 1984

Timing As Jurisdiction: Federal Civil Appeals In Context, Edward H. Cooper

Articles

The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same …

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Statutes Of Limitations And Defendant Class Actions, Michigan Law Review Nov 1983

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 …

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Class Actions For Punitive Damages, Michigan Law Review Aug 1983

Class Actions For Punitive Damages, Michigan Law Review

Michigan Law Review

This Note argues that a Rule 23 class action offers the best way to manage multiple actions for punitive damages. It begins by examining the policy underlying punitive damages and the plaintiffs interest in recovering them. It then explains why a limited fund is created when courts deny punitive damage recovery as a matter of law or when punitive claims exceed defendant's assets. The Note contends that a Rule 23(b)(l)(B) class action provides the best means to manage this limited fund and reviews the circumstances in which a district court may properly certify a class action for punitive damages. It …

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Conceptual Overburden In The System's Operation?: Of Judges And Scholars, Jurisdiction And All That, James Dickson Phillips Jr. Mar 1983

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

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Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review Dec 1982

Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that one who opts out of a class action should not benefit from tolling for the time during which the individual was a class member. Part I develops an analytical framework, grounded in the underlying policies of statutes of limitations and applied in recent Supreme Court decisions, for resolving tolling questions. This Part concludes that a plaintiff must show that tolling will not conflict with the policy purposes animating statutes of limitations, as well as a policy reason that favors tolling. Part II applies the first of these parameters to the opt-out situation, and concludes that tolling …

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Discovery Of Retained Nontestifying Experts' Identities Under The Federal Rules Of Civil Procedure, Michigan Law Review Jan 1982

Discovery Of Retained Nontestifying Experts' Identities Under The Federal Rules Of Civil Procedure, Michigan Law Review

Michigan Law Review

This Note proposes an approach to the problem of identification of rule 26(b)(4)(B) experts that differs from both of the approaches taken in the reported opinions. 9 Part I analyzes the language of rule 26(b) and rejects the majority approach. As a matter of statutory construction, rule 26(b )( 4)(B) governs the disclosure of the identity of nontestifying experts retained by a party in preparation for trial. Part II examines the underlying purposes of rules 26(b)(l) and 26(b)(4)(B) - to ensure adequate pretrial disclosure and to prevent unfairness in adversarial competition - and suggests that both interests may be accommodated. …

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Interviewing The Child, Donald N. Duquette, Janet Stubbs Jan 1981

Interviewing The Child, Donald N. Duquette, Janet Stubbs

Book Chapters

The attorney representing a child needs to gather considerable information about his client. He needs to know the nature of the child's home environment, his present placement, his condition and adaptation to placement if the child is out of the home, his reasonable preferences for placement. He needs to know the age of the child, the child's capabilities and limitations, the number of siblings, the make-up of the family, the circumstances which led to removal, the legal and social alternatives available to the child and his family.

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Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review Dec 1980

Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review

Michigan Law Review

This Note examines the history and ambiguous language of rule 56 to determine whether courts have a duty to examine the discovery file before granting a summary judgment. Section I discusses courts' differing interpretations of the rule. Section II shows that the Supreme Court Advisory Committee which drafted the rule contemplated that courts would examine routinely filed discovery materials when considering a motion for summary judgment. Section III concludes, however, that the expansion of pre-trial discovery since the enactment of the federal rules renders such a trial court duty inconsistent with the drafters' intent that the rules "be construed to …

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Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review Dec 1980

Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review

Michigan Law Review

This Note evaluates judicial handling of citizen suits tainted by defective notice. After reviewing the legislative history of the citizen suit provisions, the Note presents an array of judicial responses to defective notice and classifies decisions by their stringency in applying the notice provision. In the final section, the Note argues that Congress's purpose in requiring notice should determine the limits of judicial tolerance of defective notice. It concludes that courts should dismiss citizen suits unless actual notice of intent to sue, whether or not in the form specified by EPA regulations, was given sixty days before the filing of …

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Collateral Estoppel And Supreme Court Disposition Of Moot Cases, Michigan Law Review May 1980

Collateral Estoppel And Supreme Court Disposition Of Moot Cases, Michigan Law Review

Michigan Law Review

In response to the Government's novel proposal in Velsicol, this Note reconsiders the procedures by which the Supreme Court could dispose of moot cases. Section I examines the collateral estoppel effects of the Supreme Court's present procedure and the Government's proposal in Velsicol. Section II concludes that both procedures afford excessive protection from collateral estoppel because they misconceive the purpose of Supreme Court review. The Note suggests that, when faced with a moot federal petition for certiorari, the Supreme Court should either deny the petition or, if certiorari has already been granted, dismiss the case.

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A Proposed Amendment To Rule 26(B)(4)(B): The Expert Twice Retained, Andrew J. Miller Apr 1979

A Proposed Amendment To Rule 26(B)(4)(B): The Expert Twice Retained, Andrew J. Miller

University of Michigan Journal of Law Reform

This article will focus on whether the hiring of the free agent as a non-trial expert, in order to conceal information from other parties to the litigation, is in keeping with the underlying goals and values of present discovery practice. Part I of this note discusses the discoverability of experts in general, then examines the various rationales underlying the so-called unfairness doctrine supporting the trial/non-trial expert distinction. Part II presents the case for divergent treatment of the free agent and the regularly retained expert. Subpart A of that section will explain the lack of judicial scrutiny in this area, while …

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Jury Size And The Peremptory Challenge: Testimony On Jury Reform, Richard O. Lempert Jan 1979

Jury Size And The Peremptory Challenge: Testimony On Jury Reform, Richard O. Lempert

Book Chapters

In the essay that follows, Professor Lempert pursues the "lay versus professional" issue, once again in the jury context. He begins by setting forth a general theory of the likely contribution of each. He then applies his posited theory to two issues of current interest to the bar: jury size and the peremptory challenge. The essay originated as testimony (prepared jointly with Dr. Jay Schulman) before a Senate subcommittee considering a bill (S. 2074, 95th Congress, 1st Session) to reduce the number of peremptory challenges in civil cases from three to two and also to require all federal district courts …

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Confession Of Error By The Solicitor General, Michigan Law Review Apr 1976

Confession Of Error By The Solicitor General, Michigan Law Review

Michigan Law Review

It is the position of this Note that the Court should formulate a new policy to govern its review of confessed errors. Specifically, this Note proposes that in deciding whether to grant certiorari and whether to defer to the representations of the Solicitor General, the Supreme Court should distinguish between errors that are normally subject to judicial scrutiny (reviewable errors) and errors of prosecutorial discretion that belong to a category of executive conduct not usually reviewed by the courts. When reviewable errors are confessed, the Court should apply a standard more liberal than that of rule 19 in deciding whether …

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Shareholder Derivative Actions: A Modest Proposal To Revise Federal Rule 23.1, Robert A. Kessler Jan 1973

Shareholder Derivative Actions: A Modest Proposal To Revise Federal Rule 23.1, Robert A. Kessler

University of Michigan Journal of Law Reform

The purpose of this article is to suggest the addition of two words, "if necessary"-or better yet, the phrase "if necessary under the law of the forum state"-to clause (1) of Federal Rule of Civil Procedure 23.1. This Rule sets forth the requirements for a shareholder's derivative action in the federal courts.

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Stockholder's Derivative Actions By Holders Of Convertible Debentures, Robert A. Malstrom Jan 1973

Stockholder's Derivative Actions By Holders Of Convertible Debentures, Robert A. Malstrom

University of Michigan Journal of Law Reform

This article focuses on Federal Rule of Civil Procedure 23.1. That rule provides a particularly convenient vehicle for discussing the protective limitations which prevent abuse of the derivative action. Analogous protective limitations exist in the statutory or case law of most jurisdictions, therefore the discussion here applies equally to actions brought in the courts of many states. Moreover, the economic and public policy arguments presented are applicable to actions in both federal and state courts.

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Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review Dec 1971

Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review

Michigan Law Review

This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.

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An American Lawyer In The Queen's Courts: Impressions Of English Civil Procedure, Benjamin Kaplan Apr 1971

An American Lawyer In The Queen's Courts: Impressions Of English Civil Procedure, Benjamin Kaplan

Michigan Law Review

While the words "English Civil Procedure" in the title of this lecture might suggest that there is a single English system, there are in fact a number of them. In the High Court itself, the court of general jurisdiction, a suit in Chancery Division proceeds differently from an action in Queen's Bench Division: the English have made less of a fetish of the "one form of action" than we have. Procedure in the County Courts, the courts for small-debt collection and miscellaneous claims, contrasts with those of the High Court. But Queen's Bench procedure for the staple cases of some …

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Social And Political Aspects Of Civil Procedure--Reforms And Trends In Western And Eastern Europe, Mauro Cappellitti Apr 1971

Social And Political Aspects Of Civil Procedure--Reforms And Trends In Western And Eastern Europe, Mauro Cappellitti

Michigan Law Review

It is my intention first to analyze the reforms accomplished in Europe in the relatively recent past. I shall then turn to the principal current problems and trends of reform. Finally, I will reflect on the intellectual and socio-political background of such reforms, problems, and trends. This approach will also give us the opportunity to discuss what kind of scholarship in the field of civil procedure is demanded today, at least in Europe but probably elsewhere as well, in order to meet the changed needs of our time.

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