Civil Procedure Commons^™

The Persistent Nation State And The Foreign Sovereign Immunities Act, Mark L. Movsesian

Faculty Publications

One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.

The decline of the nation state is, of course, the premise …

Drafting Mediation Privileges: Lessons From The Civil Justice Reform Act, Michael A. Perino

Faculty Publications

Mediation confidentiality provisions or privileges are now prevalent throughout the United States. Forty-one states have enacted some form of mediation privilege. As part of the Administrative Dispute Resolution Act of 1990, Congress enacted legislation to protect confidentiality in mediations involving federal agencies. An additional source for such provisions is the Civil Justice Reform Act of 1990 (CJRA), which required each federal district court to implement a civil justice expense and delay reduction plan (Plan(s)) by the end of 1993. Those Plans seek to implement mechanisms designed to address causes of excessive expense and delay in the federal courts.

A number …

Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich

Faculty Publications

In this article, we will first review the development of the "actual injury" tolling provision in California, from its judicial adoption in 1971 to its legislative adoption in 1977. Second, we will explore the policies underlying the legal malpractice statute of limitation and the countervailing policies that may make delayed accrual or tolling desirable in situations involving simultaneous litigation. Third, we will examine case law applying the "actual injury" tolling provision to various fact situations and analyze potential legal solutions to the problem of defining "actual injury," including the doctrine of equitable tolling. Finally, we will demonstrate how the doctrine …

The Local Rule Revision Project: The South Dakota Experience, David Day

Faculty Publications

No abstract provided.

Civil Justice Reform Act Advisory Group Report For The District Of South Dakota, David Day

Faculty Publications

No abstract provided.

Discovery Standards For The Testimonial Expert Under Federal Rule Of Civil Procedure 26(B)(4)(A): A Twentieth Anniversary Assessment, David Day

Faculty Publications

No abstract provided.

Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese

Faculty Publications

No abstract provided.

Expert Discovery In The Eighth Circuit, An Empirical Study, David Day

Faculty Publications

No abstract provided.

Some Reflections On The Golden Anniversary Of The Federal Rules Of Civil Procedure, David Day

Faculty Publications

No abstract provided.

Justice Scalia: Standing, Environmental Law And The Supreme Court, Michael A. Perino

Faculty Publications

President Reagan's appointment of Antonin Scalia to the United States Supreme Court raises concern among liberals that Justice Scalia will help lead the Court away from a number of liberal positions toward a new conservatism. The Reagan Administration's requirement that judicial appointments advance the Administration's preference for judicial restraint and strict constructionism enhances this concern. These new executive requirements mean that federal courts should accord greater authority to the democratically elected branches of the government. Justice Scalia's primary areas of study, administrative law and separation of powers, reflect his adherence to judicial self-restraint.

One aspect of administrative law and separation …

A Judicial Perspective On Expert Discovery Under Federal Rule 26(B)(4): An Empirical Study Of Trial Court Judges And A Proposed Amendment, David Day, Charvin Dixon

Faculty Publications

No abstract provided.

Developing Standards Under Amended Rule 11 Of The Federal Rules Of Civil Procedure, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Rule 11 of the Federal Rules of Civil Procedure is designed to ensure the integrity of pleadings and other papers filed in federal district court. The rule was amended in 1983 in response to the widely held perception that its provisions, as originally promulgated, had proven ineffective in deterring strike suits, litigation abuses, and lawsuits used as instruments of delay and oppression. Amended Rule 11 introduces more stringent standards designed to make attorneys stop and think about their legal obligations before signing pleadings and motions. These obligations are reinforced by imposing mandatory sanctions upon violation of the standards. The …

Expert Discovery Under Federal Rule 26(B)(4): An Empirical Study In South Dakota, David Day

Faculty Publications

No abstract provided.

The Ordinary Witness Doctrine: Discovery Of The Pre-Retention Knowledge Of A Nonwitness Expert Under Federal Rule 26(H)(4)(B), David Day

Faculty Publications

No abstract provided.

The August 1, 1983 Amendments To The Federal Rules Of Civil Procedure: A Critical Evaluation And A Proposal For More Effective Discovery Through Local Rules, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The 1983 amendments to the Federal Rules of Civil Procedure (1983 amendments) represent by far the most ambitious effort to date to remedy the widely perceived problem of discovery abuse in federal practice. These amendments are designed to improve the conduct of discovery by eliminating improper practices and making discovery more cost-effective for the parties, and thereby helping the pretrial phase of an action to run more smoothly. The 1983 discovery amendments have three basic thrusts: (1) active involvement by the court in the pretrial phases of a case pursuant to rule 16; (2) recognition of specific limitations on …

State Medical Malpractice Screening Panels In Federal Diversity Actions, Vincent C. Alexander

Faculty Publications

During the early 1970's, a medical malpractice crisis was perceived in the United States. An increasing number of costly and time-consuming lawsuits alleging medical malpractice against doctors, hospitals, and other health care providers caused malpractice insurers to raise premiums substantially, which in turn threatened to curtail the availability of adequate health care at reasonable cost. State legislatures responded to the crisis with a variety of substantive and procedural measures intended to reduce the number of litigated claims and the size of jury awards. One of the principal steps taken in a majority of states was the creation of extrajudicial panels …

Chapters Of The Civil Jury, Doug R. Rendleman

Faculty Publications

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Practice And Pleading (15th Annual Survey Of Virginia Law), W. Taylor Reveley Iii

Faculty Publications

After quickly outlining recent, legislation in the field of practice and pleading, this Article proceeds to a more detailed treatment of pertinent judicial developments. Several of the Supreme Court of Appeals' decisions merit close attention, principally Rakes v. Fulcher and Sullivan v. Little Hunting' Park, Inc. Recurrent in the discussion of the judicial opinions is concern not only with the announced law, but also with the manner of the announcement-concern, that is, with both the legal results and the legal craftsmanship. Organizationally, an attempt has been made to discuss the judicial material at the time of its "moment of truth" …

Civil Code: Notes For An Uncelebrated Centennial, William B. Fisch

Faculty Publications

This is the first installment of a projected study of the Dakota Civil Code. While this portion deals with the historical background of the Code and its content as drafted for New York by David Dudley Field, a subsequent article will deal with its fate in the hands of the bar, the legislature and the courts in New York, California, and especially the Dakotas.

Robinson's Practice: Book Review Of The Practice Of Law And Equity In Virginia, Lucian Minor

Faculty Publications

No abstract provided.