Civil Procedure Commons^™

Punitive Awards After Bmw, A New Capping System, And The Reported Opinion Bias, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Capping punitive damages awards is a centerpiece of the tort reform movement. According to the American Tort Reform Association, as of June 30, 1996, forty-three states allowed punitive damages awards. Of these, twenty-nine states impose no caps on punitive damages and fourteen impose some form of cap. In states that cap punitive awards, the preferred method is to employ a simple multiple of the compensatory award. Eleven states rely on a multiple of the compensatory damages award. The most popular multiple is three times the compensatory award, but this is used by only five states. The capping multiples range from …

The Power And The Process: Instructions And The Civil Jury, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for …

Civil Rule 53: An Enabling Act Challenge (Federal Practice And Procedure Symposiusm Honoring Charles Alan Wright), Edward H. Cooper

Articles

The Judicial Conference of the United States is charged by statute to "carry on a continuous study of the operation and effect of the general rules of practice and procedure," recommending desirable changes to the Supreme Court.' The Rules Enabling Act,2 which describes the Supreme Court's role, further provides that the Judicial Conference is to be assisted in this task by a "standing committee on rules of practice, procedure, and evidence" ;3 the standing committee in turn reviews "each recommendation of any other committees" appointed to advise it.4

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJR.lrs gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

The Sources And Scope Of Federal Procedural Common Law: Some Reflections On Erie And Gasperini, Wendy Collins Perdue

Law Faculty Publications

In this Essay I explore what traditional Erie cases would look like if we treated those cases just like classic federal common law cases. I conclude that such an approach is consistent with Erie itself and is also consistent with many of the holdings, if not the language, of traditional Erie cases. This unified approach to substantive and procedural federal common law might have some advantages. In addition to providing conceptual uniformity, this approach would offer an escape from current Erie doctrine, which is confused and unsatisfactory. Under the current doctrine, the Court appears to vacillate between the balancing test …

The Judicial Conference Report And The Conclusion Of Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act (CJRA) of 1990 instituted a nationwide experiment with procedures for decreasing expense and delay in federal civil litigation. Congress required all ninety-four federal district courts to adopt civil justice expense and delay reduction plans and to apply cost and delay reduction measures for at least four years.Congress correspondingly prescribed considerable evaluation of the experimentation which the federal districts undertook. The 1990 legislation mandated that each court annually assess the efficacy of the procedures which the district employed. Moreover, Congress required that an “independent organization with expertise in the area of Federal court management” conduct a …

How Judges View Civil Juries, Paula Hannaford-Agor, B. Michael Dann, G. Thomas Munsterman

Faculty Publications

In any given case, the judge's view of the jury may mani­fest itself as a complex and subtle mixture of respect, gratitude, con­cern, pride, impatience, and even frustration. But more revealing than what judges say about juries is what judges do to prepare jurors for their roles in civil cases. This paper explores the various indicators of judges' views of the civil jury, including the social and institutional factors and contemporary jury reform efforts that affect judges' views about the civil jury.

This abstract has been taken from the authors' introduction.

Industrial Espionage As Unfair Competition, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

The Compromise Of '38 And The Federal Courts Today, John H. Robinson

Journal Articles

In 1998 the legal community of the United States should stop and take stock of two epochal events in the history of the federal judicial system. One of those events, as readers of a procedure symposium do not need to be told, is the sixtieth anniversary of the introduction of the Federal Rules of Civil Procedure. I shall have more to say about that event presently, but I want first to devote a few paragraphs to a second event, one which proceduralists ignore at their peril. The event I have in mind is the initiation of a new era of …

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.

California’S Confusing Collateral Estoppel (Issue Preclusion) Doctrine, Walter W. Heiser

San Diego Law Review

This Article discusses two related problems regarding the scope of the collateral estoppel doctrine applied by the California courts. Both problems concern the determination of whether issues were “actually litigated and determined” by a prior judgment. Both implicate the tension between the desire to achieve judicial economy on the one hand, and the right of a party to a fair opportunity for a full adversary hearing on an issue on the other. The next section of Part I examines the policies underlying the preclusion doctrines, and explains how clear issue preclusion rules applied in an underinclusive manner further these policies. …