Civil Procedure Commons^™

Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

Revitalizing Frcp 68: Can Offers Of Judgment Provide Adequate Incentives For Fair, Early Settlement Of Fee-Recovery Cases?, William W. Schwarzer

Faculty Scholarship

No abstract provided.

The 2000 Amendments To The Discovery Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.

E-Discovery And Beyond: Toward Brave New World Or 1984?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus

Faculty Scholarship

No abstract provided.

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Archibald Cox And The Genius Of Our Institutions, Larry Yackle

Faculty Scholarship

I am confident that historians will write that the trend of decisions during the 1950's and 1960's was in keeping with the mainstream ofAmerican history - a bit progressive but also moderate, a bit humane but not sentimental, a bit idealistic but seldom doctrinaire, and in the long run essentially pragmatic - in short, in keeping with the true genius of our institutions. 1 In the dedication of his classic work Democracy and Distrust2 to Chief Justice Earl Warren, the late John Hart Ely wrote "You don't need many heroes if you choose carefully." 3 For several generations of lawyers …

Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon

Faculty Scholarship

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement — which arises from the statute’s mandate that compensable injuries be caused “by reason of” acts of racketeering — have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO …

Theory Of Punitive Damages, Benjamin C. Zipursky

Faculty Scholarship

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of …

Privacy, Plaintiff, And Pseudonyms: The Anonymous Doe Plaintiff In The Information Age, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak

Faculty Scholarship

Class actions assume absent class members. ² Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.³ Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.⁴ They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

"Defendant Veto" Or "Totality Of The Circumstances?": It's Time For The Supreme Court To Straighten Out The Personal Jurisdiction Standard Once Again, Robert J. Condlin

Faculty Scholarship

Commentators frequently claim that there is no single, coherent doctrine of extra-territorial personal jurisdiction, and, unfortunately, they are correct. The International Shoe case, commonly (but inaccurately) thought of as the wellspring of the modern form of the doctrine, announced a relatively straightforward, two-factor, four-permutation test that worked well for resolving most cases. In the nearly sixty-year period following Shoe, however, as the Supreme Court expanded and refined the standard, what was once straightforward and uncomplicated became serendipitous and convoluted. Two general, and generally incompatible, versions of the doctrine competed for dominance. The first, what might best be described as …

Federal Common Law In An Age Of Treaties, Michael P. Van Alstine

Faculty Scholarship

In this article Professor Van Alstine explores the interaction between the limitations on the doctrine of federal common law and the power of federal courts to interpret the law within the scope of treaties. The article first reviews the constitutional foundation for the operation of treaties as directly applicable ("self-executing") federal law. It then explains that, notwithstanding the Erie doctrine, federal courts may obtain lawmaking powers from either a delegation by Congress or in certain areas of "uniquely federal interest."

Professor Van Alstine then argues that the judicial relationship with self-executing treaty law in principle proceeds from the same source …

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 …

Gaining/Losing Perspective On The Law, Or Keeping Digital Evidence In Perspective, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

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 …

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 …

Only Yesterday: Reflections On Rulemaking Responses To E-Discovery, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Faculty Scholarship

No abstract provided.

Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

What Attorneys Think Of Jury Trial Innovations, William W. Schwarzer, J. Donald Cowan Jr., Thomas M. Chrisham

Faculty Scholarship

No abstract provided.

Slouching Toward Discretion, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Communities That Make Standards Of Care Possible, Anita Bernstein

Faculty Scholarship

No abstract provided.

Reform Through Rulemaking?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr.

Faculty Scholarship

The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency …

The Agenda-Setter For Complex Litigation, Richard L. Marcus

Faculty Scholarship

No abstract provided.