Civil Procedure Commons^™

The Ethics Of Delaying Persecution, Lisa A. Dolak

American University Law Review

No abstract provided.

Typology Of Aggregate Settlements, A , Howard M. Erichson

Faculty Scholarship

It is odd, considering how often lawyers engage in aggregate settlements, that no one seems able to explain what "aggregate settlement" means. It is one of the most important yet least defined terms in complex litigation. Lawyers and judges talk about aggregate settlements as though it were obvious what the term signifies and as though it describes a single thing. In fact, group settlements in multiparty litigation vary significantly. And they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This …

The Duty To Preserve Documents Before Litigation Commences, Camille Cameron

Articles, Book Chapters, & Popular Press

This paper explores the nature, extent and boundaries of the duties that exist to preserve relevant documents where no litigation has yet commenced and where such litigation can be reasonably anticipated. It uses as the context for this discussion the recent tobacco litigation case McCabe v. British Australian Tobacco (BA T). The duties to preserve are considered from the perspectives of prospective plaintiffs, who need the documents to prove a claim; prospective defendants (and their servants, agents and employees), who may for legitimate reasons have document management policies that call for routine destruction of documents; and judges (and juries), who …

Restyling The Civil Rules: Clarity Without Change, Edward H. Cooper

Articles

Devoted fans and casual users of the Federal Rules of Civil Procedure will feel mixed emotions on contemplating the Style Project that aims to rewrite every rule from Rule 1 to the end. Well they might. The Style Project's purpose is simply stated. The Civil Rules, created in an inspired fit of creativity, have been amended repeatedly over the years. Experience has shown that even inspired initial drafting could not avoid all misadventures and that amendments drafted by successive generations wielding different drafting tools do not always fit well. The present rules can be reworked to say more clearly what …

The Cauldron Boils: Supplemental Jurisdiction, Amount In Controversy, And Diversity Of Citizenship Class Actions, Richard D. Freer

Faculty Articles

Ultimately, it does not matter how or even whether the Supreme Court resolves the issue. The fact that we still do not know whether Zahn lives ­after thirteen years-demonstrates that legislation concerning the jurisdiction of the federal courts should not be the hurried product of a few drafters whose work is not circulated for broader discussion. Ours is a world in which any change to a Federal Rule of Civil Procedure-no matter how minor-must be circulated and subjected to public comment and review. Yet the jurisdiction of the federal courts can be changed in relative secrecy and haste. Congress committed …

The Story Of Shaffer: Allocating Jurisdictional Authority Among The States, Wendy Collins Perdue

Law Faculty Publications

Shaffer v. Heitner is one of a long series of Supreme Court cases addressing the scope of state-court territorial authority. Indeed, Shaffer is the first of a dozen modern cases that delineated the Court's current conception of the constitutional limits on state-court jurisdictional authority.

Determining whether a court has jurisdiction to hear a dispute is an important preliminary step in any litigation. But the constitutional doctrine the Court has developed in this area is also an interesting window on the Court's more general understanding of the allocation of power among the states.

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 …

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Law Faculty Publications

The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and cyberspace is complicated by an overlay of constitutional law. While the rest of the world considers the policy implications of a country of origin versus a country of destination approach, the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause.

The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of …

Rule 11 And Rule Revision, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Numerous observers of modem civil practice, whose views range across a comparatively broad spectrum, consider the 1983 amendment to Federal Rule of Civil Procedure 11 the most controversial revision since the United States Supreme Court promulgated the original Federal Rules of Civil Procedure in 1938.1 Counsel and litigants overused and abused the 1983 modification to Rule 11 by inappropriately stressing the compensatory goal of the proviso and improperly deemphasizing the stricture's deterrence objective. Many judges vigorously enforced Rule 11, often finding violations and imposing burdensome sanctions which frequently included large attorney's fees. This activity of lawyers and parties, as well …

Lawrence V. Texas: When "Profound And Deep Convictions" Collide With Liberty Interests, Nancy J. Knauer

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's landmark decision in Lawrence v. Texas, which overturned Bowers v. Hardwick and invalidated a Texas sodomy law criminalizing same-sex intimacy. The author argues that Lawrence not only advanced individual liberty interests but also marked a significant shift in the legal and cultural recognition of homosexuality, moving beyond earlier frameworks that criminalized or marginalized gay individuals. The decision reflects broader societal changes in understanding same-sex relationships and challenges the use of moral disapproval as a basis for legal restrictions on consensual adult conduct.

Prosecutorial Missed-Conduct, Patti Sudendorf

Public Interest Law Reporter

No abstract provided.

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

Publications

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

Recent Developments In Oklahoma Class Action Law, Jim T. Priest, Michael R. Pacewicz

Oklahoma Law Review

No abstract provided.

Expert Witness Fees As A Recoverable Item Of Costs: Recent Litigation Trends, Paul M. Kolker

Oklahoma Law Review

No abstract provided.

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

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 …

Child Custody Disputes: Bridging The Gap Between Psychologists And Family Court, Kate Pratsides

Theses : Honours

The number of divorce cases that come before judges and registrars within the Family Court system is steadily increasing, and so is the use of psychologists as expert witnesses. However, little is known about what the judges and registrars think of the psychologist's use of psychometric test results when writing their forensic report, this study attempts to answer that. This thesis is presented in two sections. The first is a literature review of guidelines that are available to psychologists when writing a forensic report. These guidelines include (1) broad guidelines provided by professional associations, such as the American Psychological Association; …

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

Faculty Scholarship

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

As Seen On Tv: The Normative Influence Of Syndi-Court On Contemporary Litigiousness, Kimberlianne Podlas

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Summary Of Health Plan Of Nev., Inc. V. Rainbow Medical, Llc, Matt Wagner

Nevada Supreme Court Summaries

This case was an appeal and cross-appeal dealing with Nevada’s Uniform Arbitration Act and the scope of judicial review of an arbitration award.

Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson

Faculty Scholarship

It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Summary Of Rickard V. Montgomery Ward & Co., 120 Nev. Ad. Op. 54, Amanda Yen

Nevada Supreme Court Summaries

On January 23, 1993, appellant David Rickard was involved in an incident at the Montgomery Ward store. On April 20, 1993, he filed a complaint in the Clark County District Court alleging various claims against the store. Approximately four years after the complaint was filed in court, Ward filed a chapter 11 bankruptcy proceeding with the United States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy law, Rickard’s action in the Nevada district court was stayed. On August 25, 1998, Rickard filed a motion for relief from stay in order to further his action against Ward. …

Summary Of State, Div. Child & Family Servs. V. Dist. Ct., 120 Nev. Adv. Rep. 50, Shane Jasmine Young

Nevada Supreme Court Summaries

The State sought a writ of mandamus or prohibition challenging the district court’s oral contempt order and sanctions.

Beyond Zippo's Sliding Scale - The Third Circuit Clarifies Internet-Based Personal Jurisdiction Analysis, David M. Fritch

Villanova Law Review (1956 - )

No abstract provided.

More Proposals To Simplify Modern Federal Procedure, Carl W. Tobias

Law Faculty Publications

Response to Edward H. Cooper, Simplified Rules of Federal Procedure1, 100 Mich. L. Rev. 1794 (2002)

Only Yesterday: Reflections On Rulemaking Responses To E-Discovery, Richard L. Marcus

Faculty Scholarship

No abstract provided.

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

Scholarly Works

No abstract provided.

Gaining/Losing Perspective On The Law, Or Keeping Digital Evidence In Perspective, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.