Civil Procedure Commons^™

Reassessing The Magnetic Pull Of Megacases On Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Confronting The Future: Coping With Discovery Of Electronic Material, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Of Learning Civil Procedure, Practicing Civil Practice, And Studying A Civil Action: A Low-Cost Proposal To Introduce First-Year Law Students To The Neglected Maccrate Skills, Raleigh Hannah Levine

Faculty Scholarship

This article proposes three exercises designed to help introduce law students to four of the lawyering skills that the American Bar Association's MacCrate Report has identified as fundamental, but that legal scholarship has largely ignored: factual investigation, client counseling, recognizing and resolving ethical dilemmas, and organization and management of legal work. My goal in devising these exercises has been to allow a professor teaching a traditional, first-year civil procedure class to incorporate them into her syllabus at low cost to herself (in terms of time expended and doctrine sacrificed) and to the law school as an institution (in terms of …

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 …

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 …

Benign Neglect Reconsidered, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Recent Efforts To Change Discovery Rules: Advice For Draftsmen Of Rules For State Courts, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Engaging With The State About Domestic Violence: Continuing Dilemmas And Gender Equality, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Robert Leflar, Judicial Process, And Choice Of Law, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Contesting Government's Financial Interest In Drug Cases, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, …

Retooling American Discovery For The Twenty-First Century: Toward A New World Order?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

What If There Is No Client?: Prosecutors As "Counselors" Of Crime Victims, Stacy Caplow

Faculty Scholarship

No abstract provided.

Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.

Faculty Scholarship

If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar, the …

Moving Violations: An Examination Of The Broad Preemptive Effect Of The Carmack Amendment, Jeanne M. Kaiser

Faculty Scholarship

This Article addresses the general principles of preemption, and describes the history, purpose and language of the Carmack Amendment. The Article then demonstrates that at the time the amendment was passed, Congress had no intention of preempting claims based on moving industry misconduct. Part II discusses the constitutional principles that govern application of the law of federal preemption and describes how application of preemption in Carmack Amendment cases has diverged from the overall application of preemption principles in other areas of congressional legislation. Finally, Part III argues that the courts have improperly granted the moving industry carte blanche to deceive …

Comment On The Supplemental-Jurisdiction Statute: 28 U.S.C. § 1367, Arthur D. Wolf

Faculty Scholarship

This Article discusses the supplemental-jurisdiction statute of 1990, 28 U.S.C. § 1367, which has generated more commentary than perhaps any other jurisdictional section. Together, § 1331, which traces its history to the Judiciary Act of 1875, and § 1332, which dates back to the Judiciary Act of 1789, did not undoubtedly promote more examination in their first eight years of existence. One might speculate why § 1367 has been the focus of so much commentary, largely critical: critical of the speed with which § 1367 was enacted, critical of the narrow range of persons involved in its drafting, critical of …

Discovery Containment Redux, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Once More Into The Breach: More Reforms For The Federal Discovery Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Puzzling Persistence Of Pleading Practice, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Legal Process And Choice Of Law, William L. Reynolds

Faculty Scholarship

No abstract provided.

What Happens When Parties Fail To Prove Foreign Law?, William L. Reynolds

Faculty Scholarship

No abstract provided.

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 …

A Worthy Champion For Fourteenth Amendment Rights: The United States In Parens Patriae, Larry Yackle

Faculty Scholarship

When the Clinton Administration announced its intention to challenge Proposition 209, the new prohibition on affirmative action in California, the Justice Department declined to say whether the United States would formally intervene in the lawsuit already under way or merely file an amicus brief supporting the plaintiffs. Casual observers may have assumed that the Administration considered the form of its participation to raise further political and strategic considerations. That was undoubtedly true. It was also true, however, that Justice Department lawyers faced a legal question as well. According to the precedents on point, the United States required an authorizing statute …

Studying Deck Chairs On The Titanic, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer

Faculty Scholarship

No abstract provided.

The Fourth Amendment's Forcing Of Flawed Choices: Giving Content To Freedom For Residents Of Public Housing - Pratt V. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994), Erika George

Faculty Scholarship

In April 1994, the United States District Court for the Northern District of Illinois issued a preliminary injunction halting the "Operation Clean Sweep" program operated by the Chicago Housing Authority ("CHA"). ³ The court did so over the protestations of some of those most affected, the public housing residents subjected to the CHA's searches. ⁴ Pratt v. Chicago Housing Authority⁵ attracted the attention of the nation and President William Clinton, who requested that the Justice Department investigate ways to strengthen security in public housing without offending the Fourth and Fourteenth Amendments of the United States Constitution.

Civil libertarians applauded …

Legal Process And The Past Of Antitrust, William L. Reynolds, Spencer Weber Waller

Faculty Scholarship

No abstract provided.

Liability-Based Fee-Shifting Rules And Settlement Mechanisms Under Incomplete Information, Eric Talley

Faculty Scholarship

Recent years have seen a debate over litigation reform grow increasingly agitated. Attorneys, judges, academics, and politicians now readily and regularly disagree about how or whether to combat the debilitating litigiousness commonly purported to infect the American Bar. Within this debate, few reform proposals have received as much attention as "fee-shifting" provisions, which, in their most popular incarnation, reallocate litigation costs (particularly attorney's fees) based on the outcome of the liability phase of a trial. This attention is perhaps justified, given the nonuniformity of such rules among industrialized nations. For instance, in the British Commonwealth and much of Continental Europe, …

Corruption Of The Class Action: The New Technology Of Collusion, John C. Coffee Jr.

Faculty Scholarship

Professor Coffee's article, an oral version of which was given at the Cornell Mass Torts conference, is appearing in the Columbia Law Review. However, because commentators in this volume have responded to it, he has authorized the following summary of his views.

Settlement Of Mass Tort Class Actions: Order Out Of Chaos, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Confronting The Consolidation Conundrum, Richard L. Marcus

Faculty Scholarship

No abstract provided.