Civil Procedure Commons^™

The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.

Faculty Scholarship

Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding …

Summary Judgment And Case Management, William W. Schwarzer

Faculty Scholarship

No abstract provided.

The Perils Of Privilege: Waiver And The Litigator, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Revival Of Fact Pleading Under The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Sanctions Under Amended Federal Rule 11–Some "Chilling" Problems In The Struggle Between Compensation And Punishment, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

Constitutional Fact Review, Henry Paul Monaghan

Faculty Scholarship

Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of "federal constitutional law," appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Thus, in addition to the familiar judicial duty to "say what the law is," the first amendment imposes a special duty with respect to law application: both …

Recent Developments In Conflicts Of Law Notes, Michael M. Martin

Faculty Scholarship

No abstract provided.

Preliminary Injunctions: The Varying Standards, Arthur D. Wolf

Faculty Scholarship

The Author undertakes a survey in this Article which shows that the Supreme Court and the courts of appeals have not articulated or applied consistent criteria for preliminary injunctive relief. Their decisions have described a sinuous path through primary standards, alternative tests, and sliding scale variations. Part of the difficulty may be because the Supreme Court has not taken a firm hand in resolving conflicts between and among the circuits on critical issues involving interlocutory injunctions. In addition while the courts of appeals make reference to each others' opinions, they have not demonstrated a desire to achieve uniformity in their …

A Special Pleading Rule For Civil Rights Complaints: A Step Forward Or A Step Back?, C. Keith Wingate

Faculty Scholarship

No abstract provided.

Reducing Court Costs And Delay: The Potential Impact Of The Proposed Amendments To The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Myth And Reality In Protective Order Litigation, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Fraudulent Concealment In Federal Court: Toward A More Disparate Standard?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Jury Instructions: We Can Do Better, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David H. Kaye

Faculty Scholarship

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one …

Communicating With Juries: Problems And Remedies, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Using The Freedom Of Information Act As A Discovery Device, David I. Levine

Faculty Scholarship

No abstract provided.

Introduction To Cleary's Presuming And Pleading: An Essay On Juristic Immaturity, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Civil Litigation And Jura Novit Curia, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Congressional Papers And Judicial Subpoenas And The Constitution, David H. Kaye

Faculty Scholarship

Some contemporary Congresses have lost sight of the original scope of their predecessors' assertions of privilege and now claim an absolute privilege to withhold both the originals and copies of subpoenaed papers. A few judicial opinions suggest as much or more. It is possible that even cursorily documented, ill-considered dicta can take root and flourish, and to prevent that, this article This article charts the constitutional boundaries of Congress' privilege to withhold its internal papers from judicial subpoena. It surveys the privileges expressly given Congress in the text of the Constitution as well as the privileges that might be implied …

The Entrapment Controversy, Roger C. Park

Faculty Scholarship

No abstract provided.

Constitutional Perspectives On Sex Discrimination In Jury Selection, Elizabeth M. Schneider, Rhonda Copelon, Nancy Stearns

Faculty Scholarship

No abstract provided.

On Privacy: Constitutional Protection For Personal Liberty, Susan Herman, L. Simonson

Faculty Scholarship

No abstract provided.

Discovery In Agency Adjudication, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

The Shea Act, Robert J. Condlin

Faculty Scholarship

No abstract provided.

Civil Procedure: The Tempest Brews, Brainerd Currie

Faculty Scholarship

No abstract provided.

Unification Of The Civil And Admiralty Rules: Why And How, Brainerd Currie

Faculty Scholarship

No abstract provided.

Automatic Extinction Of Cross-Demands: Compensation From Rome To California, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Book Review, Ira Michael Heyman, Michael E. Tigar

Faculty Scholarship

No abstract provided.

American Lawyer Looks At Civil Jury Trial In Scotland, Paul Hardin Iii

Faculty Scholarship

No abstract provided.

Proposed Revision Of New York Civil Practice, Jack B. Weinstein, Michael I. Sovern, Daniel H. Distler, Stanley H. Fuld

Faculty Scholarship

Our present Civil Practice Act is a patchwork affair; provisions have been changed and sections have been added and eliminated as the particular necessity of the times dictated, without any real regard for rational or integrated compilation.

The problem of revision has long confronted us. There has been none for more than 110 years. Very wisely, the Temporary Commission on the Courts directed such a revision, and in 1955 appointed an advisory committee consisting of outstanding attorneys of extensive and varied experience from all over the state. They were delegated to study and prepare appropriate legislation. The research and drafting …