Civil Procedure Commons^™

Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky

Michigan Law Review

The class action lawsuit is our grand procedural experiment in collective justice. As against the U.S. legal system's strong orientation toward individual rights rather than group rights, the class action is a countercurrent. Through Rule 23 of the Federal Rules of Civil Procedure, large numbers of previously unaffiliated individuals can proceed in federal court as a group, litigating through representatives. A recent form of this litigation, the human rights class action, takes this experiment to its far reaches. In the human rights class action, the tension between individual claimants and the group as a whole can be heightened. The class …

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might …

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Towards Tribal Sovereignty And Judicial Efficiency: Ordering The Defenses Of Tribal Sovereign Immunity And Exhaustion Of Tribal Remedies, Kirsten Matoy Carlson

Michigan Law Review

In 1985, the Narragansett Indian Tribe ("Tribe") created the Narragansett Indian Wetuornuck Housing Authority ("Authority"). The Authority, which acts on the Tribe's behalf in its housing development and operations, entered into a contract with the Ninigret Development Corporation for the construction of a low-income housing development. After construction began, disputes developed over how to proceed with the construction. When conciliation efforts failed, the Authority cancelled the contract. The Narragansett Tribal Council, the governing body of the Tribe, followed the forum selection clause in the contract and notified the disputants that it would hold a hearing to resolve the dispute. Ninigret …

Keeping Courts Afloat In A Rising Sea Of Litigation: An Objective Approach To Imposing Rule 38 Sanctions For Frivolous Appeals, Scott A. Martin

Michigan Law Review

As their dockets swell, federal judges' tolerance for attorney misconduct wears thin. More than ever, judges are willing to impose sanctions for abuses of federal court processes, including frivolous appeals. As one judge explained, "[w]ith courts struggling to remain afloat in a constantly rising sea of litigation, a frivolous appeal can itself be a form of obscenity." Aside from the need to reduce caseloads, other factors underlie the courts' willingness to impose sanctions for frivolous appeals. One concern is that the costs to responsible, ethical litigants increase sharply when the court system's resources are diverted to meritless claims. Another motivating …

Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner

Michigan Law Review

During patent infringement litigation, the Federal Rules of Civil Procedure ("FRCP") and the federal district court's local rules govern the parties' pretrial discovery and motion practice. The U.S. District Court for the Northern District of California has adopted the most comprehensive local rules to date covering pretrial procedures in the patent litigation context. The Northern District of California Patent Local Rules ("Local Rules") may come to have a significant impact throughout the federal courts, as it appears that other jurisdictions and commentators are looking to the Local Rules for guidance. For instance, the American Bar Association Section of Intellectual Property …

Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist

Michigan Law Review

The Securities Act of 1933 ("Securities Act") requires full and fair disclosure of the nature of securities sold in interstate and foreign commerce. Section 11 of the Securities Act prohibits false or misleading registration statements. It also provides buyers a private remedy for false or misleading statements against any signer of the registration statement, any partner or director of the issuer, any professional involved in preparing or certifying the statement, and any underwriter. The rule appears simple: if there is a material misstatement or omission in the registration statement, the buyer may sue the seller. Courts disagree, however, over how …

Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector

Michigan Law Review

Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure ("FRCP") is "the most widely used and most controversial of the sanctions rules." The increased use of Rule ll during the last fifteen years and the recent proliferation of fee-shifting provisions in federal statutes4 have led to an onslaught of motions for attorney's fees in the federal district courts. Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them. The confluence of these two trends has produced the seemingly paradoxical result of pro se parties …

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

Michigan Law Review

The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant - and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule's purpose - what it is intended to accomplish.This paper examines briefly the purposes for which the …

Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim

Michigan Law Review

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the …

Civil Procedure: Other Disciplines, Globalization, And Simple Gifts, Gene R. Shreve

Michigan Law Review

A Review of American Civil Procedure: An Introduction by Geoffrey C. Hazard, Jr. and Michele Taruffo

Toward A Liberal Application Of The "Close Of All The Evidence" Requirement Of Rule 50(B) Of The Federal Rules Of Civil Procedure: Embracing Fairness Over Formalism, Rollin A. Ransom

Michigan Law Review

This Note examines the language and purposes of rule 50 to determine if and when a relaxed application of its requirements is appropriate. Part I considers the terms and goal of the rule and concludes that its purpose is to put the party opposing the motion for judgment as a matter of law on notice of the movant's assertion that the evidence is insufficient as a matter of law, and to provide the opposing party an opportunity to "cure." Part II discusses courts' varying application of the requirement that a motion for judgment as a matter of law made at …

Insuring Rule 11 Sanctions, Cary Coglianese

Michigan Law Review

Federal Rule of Civil Procedure 11 requires courts to sanction attorneys who file frivolous papers. Since 1983, when the rule was amended, attorney sanctions have emerged as an increasingly significant aspect of civil litigation in the United States.

Can these and other attorneys find coverage for sanctions under their existing policies? Should they be allowed to obtain coverage for sanctions at all? This Note addresses these questions and attempts to sketch the landscape surrounding the looming issue of insurance coverage for rule 11 sanctions. To determine whether sanctions can and should be insurable, it is necessary first to understand the …

God, Metaprocedure, And Metarealism At Yale, Linda S. Mullenix

Michigan Law Review

A Review of Procedure by Robert M. Cover, Owen M. Fiss, and Judith F. Resnik

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

The Costs Of Complexity, Stephen B. Burbank

Michigan Law Review

A Review of Complex Litigation: Cases and Materials on Advanced Civil Procedure by Richard L. Marcus and Edward F. Sherman

Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos

Michigan Law Review

This Note explores the problem of abuse of the class action device during the pretrial settlement process. Part I analyzes the underlying sources of potential abuse in pretrial settlement negotiations. Part II assesses the adequacy of the standards currently used by courts to detect collusive class action settlements. Part III concludes that the appointment of a neutral third-party guardian to oversee the pretrial negotiation process furthers the judicial policy of encouraging settlements while protecting the interests of the absentee class.

Relief From Final Judgment Under Rule 60(B)(1) Due To Judicial Errors Of Law, Michigan Law Review

Michigan Law Review

This Note seeks to resolve these conflicts by proposing a sensible reading of rule 60(b )(1) that reconciles the basic philosophies underlying differing interpretations of the rule. Part I examines the history of rule 60(b)(l) and the policies espoused by the courts and commentators in considering whether the rule should be applied to judicial errors of law and concludes that courts should employ the rule to correct obvious judicial errors of law. Part II recommends a broad scope for rule 60(b )(1) motions, proposing that the only type of alleged judicial error outside the reach of such a motion should …

Statutes Of Limitations And Defendant Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that in defendant class actions the statute of limitations should be tolled as to all named and absent class members upon informal notice given by the plaintiff at the beginning of the suit. Part I examines the purposes of statutes of limitations and class actions, and the manner in which these purposes were reconciled in American Pipe. It concludes that American Pipe requires the creation of a tolling doctrine that promotes both the fair notice policy that underlies statutes of limitations and the concern for litigative economy that underlies rule 23 class actions. Part II then …

Class Actions For Punitive Damages, Michigan Law Review

Michigan Law Review

This Note argues that a Rule 23 class action offers the best way to manage multiple actions for punitive damages. It begins by examining the policy underlying punitive damages and the plaintiffs interest in recovering them. It then explains why a limited fund is created when courts deny punitive damage recovery as a matter of law or when punitive claims exceed defendant's assets. The Note contends that a Rule 23(b)(l)(B) class action provides the best means to manage this limited fund and reviews the circumstances in which a district court may properly certify a class action for punitive damages. It …

Conceptual Overburden In The System's Operation?: Of Judges And Scholars, Jurisdiction And All That, James Dickson Phillips Jr.

Michigan Law Review

A Review of Federal Practice and Procedure, Volumes 13-19: Jurisdiction and Related Matters by Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper

Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that one who opts out of a class action should not benefit from tolling for the time during which the individual was a class member. Part I develops an analytical framework, grounded in the underlying policies of statutes of limitations and applied in recent Supreme Court decisions, for resolving tolling questions. This Part concludes that a plaintiff must show that tolling will not conflict with the policy purposes animating statutes of limitations, as well as a policy reason that favors tolling. Part II applies the first of these parameters to the opt-out situation, and concludes that tolling …

Discovery Of Retained Nontestifying Experts' Identities Under The Federal Rules Of Civil Procedure, Michigan Law Review

Michigan Law Review

This Note proposes an approach to the problem of identification of rule 26(b)(4)(B) experts that differs from both of the approaches taken in the reported opinions. 9 Part I analyzes the language of rule 26(b) and rejects the majority approach. As a matter of statutory construction, rule 26(b )( 4)(B) governs the disclosure of the identity of nontestifying experts retained by a party in preparation for trial. Part II examines the underlying purposes of rules 26(b)(l) and 26(b)(4)(B) - to ensure adequate pretrial disclosure and to prevent unfairness in adversarial competition - and suggests that both interests may be accommodated. …

Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review

Michigan Law Review

This Note examines the history and ambiguous language of rule 56 to determine whether courts have a duty to examine the discovery file before granting a summary judgment. Section I discusses courts' differing interpretations of the rule. Section II shows that the Supreme Court Advisory Committee which drafted the rule contemplated that courts would examine routinely filed discovery materials when considering a motion for summary judgment. Section III concludes, however, that the expansion of pre-trial discovery since the enactment of the federal rules renders such a trial court duty inconsistent with the drafters' intent that the rules "be construed to …

Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review

Michigan Law Review

This Note evaluates judicial handling of citizen suits tainted by defective notice. After reviewing the legislative history of the citizen suit provisions, the Note presents an array of judicial responses to defective notice and classifies decisions by their stringency in applying the notice provision. In the final section, the Note argues that Congress's purpose in requiring notice should determine the limits of judicial tolerance of defective notice. It concludes that courts should dismiss citizen suits unless actual notice of intent to sue, whether or not in the form specified by EPA regulations, was given sixty days before the filing of …

Collateral Estoppel And Supreme Court Disposition Of Moot Cases, Michigan Law Review

Michigan Law Review

In response to the Government's novel proposal in Velsicol, this Note reconsiders the procedures by which the Supreme Court could dispose of moot cases. Section I examines the collateral estoppel effects of the Supreme Court's present procedure and the Government's proposal in Velsicol. Section II concludes that both procedures afford excessive protection from collateral estoppel because they misconceive the purpose of Supreme Court review. The Note suggests that, when faced with a moot federal petition for certiorari, the Supreme Court should either deny the petition or, if certiorari has already been granted, dismiss the case.

Confession Of Error By The Solicitor General, Michigan Law Review

Michigan Law Review

It is the position of this Note that the Court should formulate a new policy to govern its review of confessed errors. Specifically, this Note proposes that in deciding whether to grant certiorari and whether to defer to the representations of the Solicitor General, the Supreme Court should distinguish between errors that are normally subject to judicial scrutiny (reviewable errors) and errors of prosecutorial discretion that belong to a category of executive conduct not usually reviewed by the courts. When reviewable errors are confessed, the Court should apply a standard more liberal than that of rule 19 in deciding whether …

Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review

Michigan Law Review

This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.

An American Lawyer In The Queen's Courts: Impressions Of English Civil Procedure, Benjamin Kaplan

Michigan Law Review

While the words "English Civil Procedure" in the title of this lecture might suggest that there is a single English system, there are in fact a number of them. In the High Court itself, the court of general jurisdiction, a suit in Chancery Division proceeds differently from an action in Queen's Bench Division: the English have made less of a fetish of the "one form of action" than we have. Procedure in the County Courts, the courts for small-debt collection and miscellaneous claims, contrasts with those of the High Court. But Queen's Bench procedure for the staple cases of some …

Social And Political Aspects Of Civil Procedure--Reforms And Trends In Western And Eastern Europe, Mauro Cappellitti

Michigan Law Review

It is my intention first to analyze the reforms accomplished in Europe in the relatively recent past. I shall then turn to the principal current problems and trends of reform. Finally, I will reflect on the intellectual and socio-political background of such reforms, problems, and trends. This approach will also give us the opportunity to discuss what kind of scholarship in the field of civil procedure is demanded today, at least in Europe but probably elsewhere as well, in order to meet the changed needs of our time.