Civil Procedure Commons^™

Between 'Merit Inquiry' And 'Rigorous Analysis': Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth Chamblee Burch

Scholarly Works

In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.

Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …

Adrift On A Sea Of Uncertainty: Preserving Uniformity In Patent Law Post-Vornado Through Deference To The Federal Circuit, Larry D. Thompson

Scholarly Works

Congress created the United States Court of Appeals for the Federal Circuit in 1982, and granted that court exclusive appellate jurisdiction over civil actions arising under patent law. Congress's primary goals in creating the Federal Circuit were to produce a more uniform patent jurisprudence and to reduce forum shopping based on favorable patent law. But in the 2002 decision of Holmes Group, Inc. v. Vornado Air Circulation Systems, the Supreme Court held that patent counterclaims alone could not create Federal Circuit jurisdiction. This decision not only overruled the Federal Circuit's longstanding jurisdictional rule, but also opened the door for Regional …

The Integration Of Law And Fact In An Uncharted Parallel Procedural Universe, Thomas O. Main

Scholarly Works

No abstract provided.

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Special Needs And Special Deference: Suspicionless Civil Searches In The Modern Regulatory State, Fabio Arcila

Scholarly Works

This Article examines the Supreme Court’s application of the "special needs" principle, which is part of its Fourth Amendment search and seizure jurisprudence, with an emphasis on suspicionless searches. It argues that both courts and commentators have insufficiently acknowledged the tension between the modern regulatory state, which is significantly dependent upon such searches, and adequately protecting liberty interests. The commentators who criticize the Court’s deference ignore that a deferential approach can be justified. Suspicionless civil searches, for example, are not necessarily incompatible with original intent. Moreover, the many proposals for reforming suspicionless civil search jurisprudence, such as reinvigorating the individualized …

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Diligent Prosecution Bar To Citizen Suits: The Search For Adequate Representation, Peter A. Appel

Scholarly Works

To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not …

On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge

Scholarly Works

In my view, legislatures, rather than courts or parties, should decide whether (and to what extent) courts should review arbitral awards for errors of law. The optimal legislative mechanism should not be compulsory but should offer parties the choice whether to "opt-in" to this regime of expanded review by inserting language to that effect in their arbitration agreement. A legislative solution with an "opt-in" feature has a sounder doctrinal foundation, better respects the distribution of power between various branches of government, involves a lower risk of error and minimizes transaction costs. From this position, two additional conclusions follow: first, courts …

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

Timeless And Ahead Of Its Time: Lach's V. Fidelity & Casualty Of New York, Jeffrey W. Stempel

Scholarly Works

The publication of Judge Keeton's important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton's article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable …

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Scholarly Works

No abstract provided.

Lessons From The Damages Decisions Following United States V. Winstar Corp., Rodger D. Citron

Scholarly Works

No abstract provided.

Jurisdiction, Jurisprudence And Legal Change: Sociological Jurisprudence And The Road To International Shoe, Logan E. Sawyer Iii

Scholarly Works

While scholars espousing ideological explanations have noted the correlation between the intellectual trends of the New Deal and International Shoe, they have not demonstrated the strength of this connection. Some merely assert that ideology caused International Shoe,12 while others point to only very general similarities between International Shoe and the ideology of the age.' 3 This Article attempts to strengthen the ideological explanation by examining closely the intellectual context of International Shoe. That examination reveals that the decision did not result simply from the expansion of interstate business or the inherent weakness of the Pennoyer system. Instead, International Shoe was …

Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel

Scholarly Works

In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the change minimized criticism by …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Procedural Uniformity And The Exagerated Role Of Rules, Thomas O. Main

Scholarly Works

No abstract provided.

They Toil Not, Neither Do They Spin: Civil Liability Under The Oregon Securities Law, Keith A. Rowley

Scholarly Works

Under Oregon law, persons who sell securities in violation of statutory registration requirements, or by means of some misrepresentation or omission of material fact, may be liable to any person or entity who buys securities from or through them. Likewise, persons who buy securities by means of some misrepresentation or omission of material fact may be liable to any person or entity who sells securities to or through them. In addition to, or in lieu of, suing the person who committed the material misrepresentation or omission, a plaintiff may sue one or more persons or entities who might be vicariously …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement Of The Ethical Duty To Report, Lonnie T. Brown, Jr.

Scholarly Works

This article seeks to draw attention to certain ethical misconduct of litigators that is routinely accepted, tolerated, or ignored by the legal profession. Though there are other examples, the author focuses on conduct prohibited by Federal Rule of Civil Procedure 11. In particular, the author concentrates on that rule's so-called “safe harbor” provision, which he argues serves to insulate, and possibly encourage, illegitimate advocacy in the form of the assertion and maintenance of frivolous claims, defenses, or other contentions ironically, the very conduct that the rule was ostensibly intended to deter. Regardless of the frequency of this sort of misbehavior, …

Intervention In Public Law Litigation: The Environmental Paradigm, Peter A. Appel

Scholarly Works

Litigation which Chayes labeled “public law litigation” grew especially quickly in the decade immediately before Chayes wrote his article. This growth was due, in no small part, to the 1966 amendments to the Federal Rules of Civil Procedure. These amendments introduced a more transactional approach to litigation and made the rules concerning party structure more flexible. In particular, the amendments modified Rule 19, which governs joinder of nonparties by the parties to the suit; Rule 23, which governs class action lawsuits; and Rule 24, which governs intervention by nonparties into ongoing litigation. Using the jurisprudence that has developed concerning intervention …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Forum Non Conveniens In Federal Statutory Cases, Keith A. Rowley, Lonny Sheinkopf Hoffman

Scholarly Works

This article, previously published in Volume 49 of the Emory Law Journal, examines the federal doctrine of forum non conveniens in cases in which the plaintiff asserts a right to relief under federal law. The arguments we advance - particularly our claim that the federal doctrine of forum non conveniens can be better understood not as turning on matters of convenience, as the formal doctrine suggests, but on an assessment of the relative sovereign interests in adjudicating the dispute - remain relevant to an understanding of the federal doctrine. The paper, thus, may be of interest to practitioners, academics and …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance law in the year 1998-1999.

Witnessing The Process: Reflections On Civil Procedure, Power, Pedagogy, And Praxis, Deseriee A. Kennedy

Scholarly Works

No abstract provided.