Civil Procedure Commons^™

Federal Rule 50: Medium Rare Application? Unitherm Food Systems, Inc. V. Swift-Eckrich, Inc., Leslie Eanes

Mercer Law Review

The year 2006 marked a historical year for the now seventy-year-old Federal Rule of Civil Procedure 50. In addition to an overhaul of the statutory language, which, absent contrary congressional action, became codified December 1, 2006, the Supreme Court issued its landmark opinion in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. In what seems to be a straightforward procedural dictate from the High Court, Unitherm has actually resulted in confusion among federal circuits anxious to follow its precedent.

'Less' Is 'More'? Textualism, Intentionalism, And A Better Solution To The Class Action Fairness Act's Appellate Deadline Riddle, Adam N. Steinman

Faculty Scholarship

In recent months, federal appellate judges have grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 (CAFA) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite -- it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have …

Immigration Reform In America: Past, Present, And Future, Thaddeus Coffman

Undergraduate Theses and Capstone Projects

This paper examines immigration legislation throughout the history of the United States. The author has divided the focus of legislative activity into four main eras: the Laissez- Fair Era (1789-1875), the Anti-Asian Era (1876-1920), the National Origin Quotas Era (1921-1953), and the Illegal Immigration Era (1954-present). While these eras are not all inclusive, they are indicative of the main focus of legislation passed during their time. The author then compares the impact of major legislation passed during these eras to three current proposals aimed at addressing the increasing issue of illegal immigration: two versions of a guest-worker program and amnesty/legalization …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

A Small Step Forward: An Analysis Of West Virginia's Attempt At Joint And Several Liability Reform, Michael P. Addair

West Virginia Law Review

No abstract provided.

Venue In Missouri After Tort Reform, David J. Achtenberg

Faculty Works

Venue matters. Anyone who doubts it need only look to the venue wars waged in the Missouri Supreme Court during the last decades. Understandably, plaintiffs prefer unrestrictive venue rules so that they can file and try their cases in counties with plaintiff-friendly jury pools. Just as understandably, defendants prefer rules that restrict plaintiffs' ability to choose between multiple venues and, to the extent possible, rules that permit the defendant to select the counties in which they can be forced to defend their actions.

The passage of Missouri's 2005 Tort Reform Act represented an important legislative victory for defendants in this …

Class Certification And Interlocutory Review: Rule 23(F) In The Courts, Lori Irish Bauman

The Journal of Appellate Practice and Process

No abstract provided.

When Is Oral Argument Important? A Judicial Clerk's View Of The Debate, Michael Duvall

The Journal of Appellate Practice and Process

No abstract provided.

Vacatur Of Arbitration Awards: The Poor Loser Problem Or Loser Pays?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

In B. L. Harbert International, LLC. v. Hercules Steel Co., decided in February 2006, the Eleventh Circuit Court of Appeals took the opportunity to express its "exasperation" with the growing tendency of losing parties in arbitration disputes to take a "never-say-die attitude" in the pursuit of vacatur of arbitral decisions "without any real legal basis for doing so" and its concern for the concomitant threat to the underlying purposes of the Federal Arbitration Act (FAA).

Applying the Harbert "any real legal basis" requirement raises several concerns that can be assuaged only by courts' commitment to focus on balancing following two …

The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert

Articles

When I first began to study the jury more than thirty years ago, the topic of this Journal issue, jury systems around the world, was unthinkable. The use of juries, especially in civil litigation, had long been in decline, to the point of near extinction in England, the land of their birth, and the live question was whether the jury system would endure in the United States. It seemed clear that juries would not continue in their classic form, as many U.S. states, with the Supreme Court's eventual approval, mandated juries of less than twelve people and allowed verdicts to …

What Is The Definition Of An "Organ" Under The Foreign Sovereign Immunities Act?, Peter B. Rutledge

Scholarly Works

Did the court of appeals have jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. 1447(d)?

does a company wholly owned by a Canadian crown corporation -- that is itself wholly owned by the Canadian Province of British Columbia and that performs obligations and exercises rights of the Province pursuant to a treaty with the United States -- quality as an "organ" of a foreign state or political subdivision under the Foreign Sovereign Immunities Act?

Florida Fifth District Court Of Appeal To Hold Oral Arguments Session At Famu Law, 2007, Honorable Kerry I. Evander, Honorable Vincent G. Torpy, Jr., Honorable C. Alan Lawson

Law Day Presentations

As part of Law Day activities, Oral Arguments are heard by a three justice panel. The event includes five appeals by practicing attorneys on behalf of their clients, question-and-answer sessions following each argument, and a reception with the justices following the Court session.

Involuntary Commitment Of People With Mental Retardation: Ensuring All Of Georgia's Citizens Receive Adequate Procedural Due Process, Laura W. Harper

Mercer Law Review

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other …

Commission Control: The Court's Narrow Holding In Hamdan V. Rumsfeld Spurred Congressional Action But Left Many Questions Unanswered. So What Happens Now?, Thomas M. Gore

Mercer Law Review

By a 5-3 vote in Hamdan v. Rumsfeld, the United States Supreme Court held that the military commissions established by President George W. Bush to try al Qaeda members and other terrorists lacked the "power to proceed because [their] structure and procedures" violate the Uniform Code of Military Justice ("UCMJ") and the Geneva Conventions. In so holding, the Court exercised its power as a significant check on presidential power, but left many questions unanswered. In the wake of Hamdan, Congress enacted the Military Commissions Act of 2006 ("MCA"'). The answers to the questions not addressed by the Court …

A Proposal To Clarify Rule 68 Of The Nevada Rules Of Civil Procedure Regarding Offers Of Judgment, Craig Roecks

Nevada Law Journal

No abstract provided.

Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …

Who Gets Counted? Jury List Representativeness For Hispanics In Areas With Growing Hispanic Populations Under Duren V. Missouri, Stephen E. Reil

BYU Law Review

No abstract provided.

Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Case Selection In Three Supreme Courts: A Comparative Perspective, J. Randy Beck, Anna Nagaeva

Popular Media

This paper brings a comparative perspective to an important procedural issue faced in many judicial systems. It examines the exercise of the power of case selection in three supreme courts that have each been given some degree of control over whether to accept particular cases for review. The focus is on two American courts, the Supreme Court of the United States (USSC) and the Supreme Court of Georgia (GASC), as well as one Russian court, the Supreme Arbitrazh (Commercial) Court of the Russian Federation (SACRF).

Ibeto Petrochemical Industries Ltd V. M/T Beffen, 475 F. 3d 56 - Court Of Appeals, 2nd Circuit 2007, Roger J. Miner '56

Circuit Court Opinions

Plaintiff-Counter-Defendant-Appellant Ibeto Petrochemical Industries Limited ("Ibeto") appeals from an Order entered in the United States District Court for the Southern District of New York (Scheindlin, J.) in an action arising out of the contamination by seawater of a shipment of oil being carried by motor tanker. The Order granted the motions of Defendant-Appellee M/T Beffen, Her Engines, Tackles, Boiler, etc. (in rem) ("the Beffen") and Defendant-Counter-Claimant-Appellee Bryggen Shipping and Trading A/S (in personam) ("Bryggen") (collectively "defendants") to stay this action, to compel arbitration, and to enjoin an action pending in Nigeria. The Order also denied Ibeto's motion for voluntary …

Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts 1938-2006, Seymour Moskowitz

Law Faculty Publications

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where "private attorneys general" may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This …

Reliability Lost, False Confessions Discovered, Mark A. Godsey

Faculty Articles and Other Publications

The advent of post-conviction DNA testing in the past twenty years has spawned an Innocence Revolution, in which hundreds of Americans imprisoned or on death row for serious crimes like murder and rape have been conclusively proven innocent and released. From studying the cases of wrongful convictions, we now know that eyewitness identification is not nearly as reliable as once believed. We also know that hundreds of innocent people have been convicted through the use of junk science, such as bite mark analysis or microscopic hair comparison, which DNA testing has proven to be wildly inaccurate. Most importantly for my …

Summary Judgment In Florida: The Road Less Traveled, Leonard D. Pertnoy

St. Thomas Law Review

This article will first explore the origins of summary judgment in the Florida courts. Next, the Holl v. Talcot standard (the "Holl standard") shall be discussed. The discussion then turns to arguments in favor of maintaining the Holl standard, including the great costs which arise by the application of the standard, and ultimately, a discussion debunking those arguments. Finally, partial summary judgment shall be discussed, introducing its potential to assist the practitioner in achieving, in part, progress towards a more predictable and useful summary judgment process. The overriding conclusions of this project are as follows: 1) the Florida Supreme Court …

Loud Rules, Wendy Gerwick Couture

Articles

No abstract provided.

Quantum Meruit And The Restatement (Third) Of Restitution And Unjust Enrichment, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Thirty years ago, Professor Graham Douthwaite said that restitution can "arise in a bedazzling variety of situations."' He also said that practitioners usually are not aware of "the restitutionary implications or potential" of their clients' problems. Over 50 years ago, Professor John Dawson said that "[i]t is doubtful even now whether most lawyers have an adequate conception of the range and resources of the remedy." About twenty years ago, I said of Professor Dawson's statement, "It is doubtful whether the situation has much improved in the last thirty years." Unfortunately, I can still repeat that concern.

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah Challener

Journal Articles

This Article argues that a federal court does not abdicate its duty to exercise its jurisdiction when it certifies a question in a diversity case; instead, the court merely postpones the exercise of its jurisdiction. Thus, federal courts need not limit certification in diversity cases to exceptional circumstances.

The Executive-Internalization Approach To High-Risk Corporate Behavior: Establishing Individual Criminal Liability For The Intentional Or Reckless Introduction Of Excessively Dangerous Products Or Services Into The Stream Of Commerce, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.