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Articles 61 - 81 of 81
Full-Text Articles in Civil Procedure
The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur
The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur
Faculty Articles
We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …
Bull’S-Eye View Of Cooperation In Discovery, Steven S. Gensler
Bull’S-Eye View Of Cooperation In Discovery, Steven S. Gensler
Faculty Articles
No abstract provided.
Some Thoughts On The Lawyer’S E-Volving Duties In Discovery, Steven S. Gensler
Some Thoughts On The Lawyer’S E-Volving Duties In Discovery, Steven S. Gensler
Faculty Articles
No abstract provided.
Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman
Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman
Faculty Articles
Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how …
Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler
Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler
Faculty Articles
No abstract provided.
The Case For Oral Argument In The Supreme Court Of Oklahoma, Andrew Coats, Joseph Thai
The Case For Oral Argument In The Supreme Court Of Oklahoma, Andrew Coats, Joseph Thai
Faculty Articles
No abstract provided.
The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman
The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman
Faculty Articles
This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden …
Summary Judgment In Florida: The Road Less Traveled, Leonard Pertnoy
Summary Judgment In Florida: The Road Less Traveled, Leonard Pertnoy
Faculty Articles
This article will first explore the origins of summary judgment in the Florida courts. Next, the Holl v. Talcot standard (the "Holl standard") shall be discussed. The discussion then turns to arguments in favor of maintaining the Holl standard, including the great costs which arise by the application of the standard, and ultimately, a discussion debunking those arguments. Finally, partial summary judgment shall be discussed, introducing its potential to assist the practitioner in achieving, in part, progress towards a more predictable and useful summary judgment process.
Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer
Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer
Faculty Articles
Article III authorizes and the Judicial Code grants federal subject matter jurisdiction over civil cases "arising under" federal law. The Supreme Court has interpreted these words differently, however, in their constitutional and statutory contexts. While the constitutional text is read broadly, the Court has imposed three limitations on the same words in the statutory grants of federal question jurisdiction: (1) the ''well-pleaded complaint" rule; (2) a requirement that the federal issues be sufficiently "direct" or "central', to the dispute to justify access to the federal courts; and (3) a requirement that the federal assertion be "substantial." These limitations are meant …
Protecting Individuals From "Double Jeopardy" In A Post-Hudson Era, Megan Wischmeier Shaner
Protecting Individuals From "Double Jeopardy" In A Post-Hudson Era, Megan Wischmeier Shaner
Faculty Articles
No abstract provided.
The Cauldron Boils: Supplemental Jurisdiction, Amount In Controversy, And Diversity Of Citizenship Class Actions, Richard D. Freer
The Cauldron Boils: Supplemental Jurisdiction, Amount In Controversy, And Diversity Of Citizenship Class Actions, Richard D. Freer
Faculty Articles
Ultimately, it does not matter how or even whether the Supreme Court resolves the issue. The fact that we still do not know whether Zahn lives after thirteen years-demonstrates that legislation concerning the jurisdiction of the federal courts should not be the hurried product of a few drafters whose work is not circulated for broader discussion. Ours is a world in which any change to a Federal Rule of Civil Procedure-no matter how minor-must be circulated and subjected to public comment and review. Yet the jurisdiction of the federal courts can be changed in relative secrecy and haste. Congress committed …
Diversity Class Actions, Common Relief, And The Rule Of Individual Valuation, Steven S. Gensler
Diversity Class Actions, Common Relief, And The Rule Of Individual Valuation, Steven S. Gensler
Faculty Articles
No abstract provided.
Civil Procedure: Class Certification And The Predominance Requirement Under Oklahoma Section 2023(B)(3), Steven S. Gensler
Civil Procedure: Class Certification And The Predominance Requirement Under Oklahoma Section 2023(B)(3), Steven S. Gensler
Faculty Articles
No abstract provided.
What Trial Judges Would Like To Say To Lawyers And What Lawyers Would Like To Say To Trial Judges (Panel One), Andrew Coats
What Trial Judges Would Like To Say To Lawyers And What Lawyers Would Like To Say To Trial Judges (Panel One), Andrew Coats
Faculty Articles
No abstract provided.
Bifurcation Unbound, Steven S. Gensler
Prejudice, Confusion, And The Bifurcated Civil Jury Trial: Lessons From Tennessee, Steven S. Gensler
Prejudice, Confusion, And The Bifurcated Civil Jury Trial: Lessons From Tennessee, Steven S. Gensler
Faculty Articles
No abstract provided.
Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer
Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer
Faculty Articles
It has been a tough couple of years for supplemental jurisdiction. In recent decades, the doctrine, which earlier had been called the "child of necessity and sire of confusion," had become somewhat less confusing. The Supreme Court created a flurry of concern over the future of the doctrine with a pair of restrictive decisions in the late 1970s, but showed no further interest; the lower courts generally interpreted those holdings narrowly. With exceptions in a couple of areas, the application of supplemental jurisdiction in the various joinder situations became relatively clear and predictable, and the doctrine played a major role …
Grasping At Burnt Straws: The Disaster Of The Supplemental Jurisdiction Statute, Thomas C. Arthur, Richard Freer
Grasping At Burnt Straws: The Disaster Of The Supplemental Jurisdiction Statute, Thomas C. Arthur, Richard Freer
Faculty Articles
Ah, the strawman model! Where would Professors Rowe, Burbank, and Mengler be without it? At a minimum, they would have a much shorter article. If Professor Freer in fact torched the entire farm, it is because there was so much dry straw lying around after the three drafters finished tilting with the strawmen they created in their response to Professor Freer's article. The drafters spend more than half of their article arguing the irrelevant points that a statute was needed after Finley, that the statute was consistent with recommendations of the Federal Courts Study Committee, and that Professor Freer …
Close Enough For Government Work: What Happens When Congress Doesn't Do Its Job, Thomas C. Arthur, Richard Freer
Close Enough For Government Work: What Happens When Congress Doesn't Do Its Job, Thomas C. Arthur, Richard Freer
Faculty Articles
There's the beef. The supplemental jurisdiction statute, particularly section 1367(b), is a nightmare of draftsmanship. The problems that flow from that fact are more than aesthetic. The sloppiness makes easy cases hard and sows confusion in areas where there should be, and so easily could have been, clarity. It creates that most wasteful type of litigation - fights over jurisdiction. Subject matter jurisdiction rules ought to be clear and capable of near-mechanical application whenever possible. Such precision was possible in the supplemental jurisdiction, if only someone had spent as much time writing the statute as the trio has spent writing …
Sexual Harassment Cases And The Law Of Evidence: A Proposed Rule, Catherine O'Neill
Sexual Harassment Cases And The Law Of Evidence: A Proposed Rule, Catherine O'Neill
Faculty Articles
Federal Rule of Evidence 412 eliminates from the jury's consideration during a criminal rape trial evidence of the victim's past sexual experiences in all but a few narrowly drawn circumstances. In enacting Rule 412, Congress' primary purpose was to spare victims of rape the degrading and unwarranted intrusions into intimate details of their private lives that had formerly been common practice in the federal courts. Part I of this comment discusses the background, structure and rationale of Federal Rule of Evidence 412. Part II argues that the justifications for the enactment of Rule 412 in the context of rape also …
Acquiring In Personam Jurisdiction In Federal Question Cases: Procedural Frustration Under Federal Rule Of Civil Procedure 4, Marilyn Berger
Acquiring In Personam Jurisdiction In Federal Question Cases: Procedural Frustration Under Federal Rule Of Civil Procedure 4, Marilyn Berger
Faculty Articles
With the adoption of the Federal Rules of Civil Procedure in 1938, Congress finally attempted to provide a uniform standard for exercising personal jurisdiction in federal courts. Despite that attempt, there is currently no uniform method for acquiring personal jurisdiction in federal question cases. A contributing factor to the lack of uniformity is Federal Rule of Civil Procedure 4. This article calls for a uniform personal jurisdiction standard in federal question cases. In so doing, it examines the three ways to acquire personal jurisdiction under Rule 4 and evaluates the adequacy of each method. Because some federal courts rely on …