Civil Procedure Commons^™

Not Dead Yet, Richard L. Marcus

Oklahoma Law Review

No abstract provided.

Making Effective Rules: The Need For Procedure Theory, Robert G. Bone

Oklahoma Law Review

No abstract provided.

Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler

Oklahoma Law Review

No abstract provided.

Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav

Faculty Articles and Papers

This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for …

Remand And Appellate Review When A District Court Declines To Exercise Supplemental Jurisdiction Under 28 U.S.C. § 1367(C): Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii

Journal Articles

Under 28 U.S.C. § 1447(c) and (d), as well as Supreme Court precedent, remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction. Until recently, all appellate courts that had addressed the issue had concluded that a district court’s discretionary decision to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) and remand the supplemental claims does not constitute a remand for lack of subject matter jurisdiction and therefore is reviewable on appeal.

Default Judgment In Montana: The Costs Of Inexcusable Neglect Or The Death Of Trial On The Merits?, Sara F. Tappen

Montana Law Review

Default Judgment

Empowering The Active Jury: A Genuine Tort Reform, Valerie P. Hans

Cornell Law Faculty Publications

The rallying cry of "tort reform" is frequently associated with changes to the civil justice system that restrict the civil jury or avoid it altogether. Tort reformers have praised United States Supreme Court rulings that have led to greater judicial control over the evidence, especially scientific evidence, which juries hear. Other reformers advocate bifurcation of trials to avoid the possibility of jurors being so negatively influenced by testimony about damages that it affects their liability judgments.

The tort system aims to compensate fairly and equitably those who are injured by others, and to do so in an efficient manner. Concerns …

Bellwether Trials, Alexandra Lahav

Faculty Articles and Papers

At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates group typical justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative …

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

Combating Terrorism: Will Civil Penalties Help Win The War On Terror? , Matthew T. Glavin

Public Interest Law Reporter

No abstract provided.

Automobile Emissions And Climate Change Impacts: Employing Public Nuisance Doctrine As Part Of A "Global Warming Solution" In California, Randall S. Abate

Journal Publications

The battle against climate change and its impacts in the United States must be waged on many fronts and requires many weapons. Until the federal government provides a comprehensive and mandatory legislative response to the climate change problem, gap-filling efforts such as regional, state, and local legislative initiatives and climate change litigation will be essential to achieve some progress in the ongoing challenge to combat the causes and effects of climate change. This Article focuses on one of those gap-filling efforts: public nuisance suits against power companies and automobile manufacturers for the climate change impacts caused by emissions from those …

The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves

Georgia Law Review

In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …

Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor

University of Richmond Law Review

No abstract provided.

Boundary Waters Treaty Of 1909 As A Model For Interjurisdictional Water Governance, Robert H. Abrams

Journal Publications

In an age of increasing interjurisdictional water conflict and water management concern, the list of accomplishments of the Boundary Water Treaty of 1909 (BWT), reached in a harmonious manner, raises the possibility that, perhaps, the management mechanisms of the BWT might beneficially be used in other contexts. This Article will take up that possibility in the context of three contemporary American interstate water allocation disputes. These disputes are (1) a relatively simple cross-border complaint by a downstream state, South Carolina, that North Carolina cities are using too much water of the Catawba River; (2) the basin-wide dispute regarding water use …

Jung V. Skadden, Arps, Slate, Meagher & Flom, Zachary Kerner

NYLS Law Review

No abstract provided.

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

In Re Davis, Adam Schlusselberg

NYLS Law Review

No abstract provided.

The Case For Oral Argument In The Supreme Court Of Oklahoma, Andrew Coats, Joseph Thai

Faculty Articles

No abstract provided.

Great (And Reasonable) Expectations: Fourth Amendment Protection For Attorney-Client Communications, Teri J. Dobbins

Seattle University Law Review

Most motor vehicle crashes are traceable to “some failure of judgment that fully reveals its dangers only when it is too late. That is precisely why they are accidents.” For example, speeding is one of the most prevalent factors contributing to vehicular crashes. Although especially deadly when combined with driver intoxication, speeding is a significant contributing factor in fatal crashes involving sober drivers. Part II of this Article briefly discusses the development of accident insurance. It examines courts' struggles in determining whether an insured's death was an accident for purposes of awarding accidental death benefits, and approaches to resolving this …

The Enigma Of Standing Doctrine In Texas Courts, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

This Article examines federal and Texas standing doctrine and makes recommendations for the principled application of the traditional non-jurisdictional approach of the procedural defense of standing under Texas law for common law claims and statutory rights of action and for the concomitant restriction of the jurisdictional aspects of standing to litigation brought by private persons and governmental units to enforce public rights or compel the performance of public duties. This Article also explains how the concepts of standing and capacity can be reconciled and harmonized.

God, Gaia, The Taxpayer, And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court considered standing in two high-profile cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. Both were 5-4 decisions in which the Court decided along traditional, ideological lines, and both decisions may provide an indication of the future direction of the Supreme Court.

In Hein, a five-Justice majority denied taxpayer standing to challenge the Bush Administration's so-called "faith-based initiatives" as a violation of the First Amendment's Establishment Clause. In Massachusetts, the Court broke new ground as it took several steps in a decidedly "liberal" direction. The five Justice …

In Search Of Removal Jurisdiction, Scott Dodson

Faculty Publications

The ubiquitous and somewhat careless use of the term “jurisdictional” by courts has spawned confusion over what is and is not jurisdictional in a variety of contexts, including removal. The issue has critical implications for litigants. Yet it lacks scholarly coverage and is the subject of deep divisions in the lower courts. In this article, I develop an initial framework for tackling the jurisdictional/procedural characterization issues of the removal statute. I build upon the groundwork laid by prior precedent and modify it to account for the quasi-jurisdictional nature of removal and its impact on the federal-state balance of power. I …

The Challenge Of Comparative Civil Procedure, Scott Dodson

Faculty Publications

This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman

Faculty Articles

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden …

Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Haas V. Lockheed Martin Corp.: Making The Case For Incorporation Of The Discovery Rule Into The Limitations Statute Governing Discriminatory Discharge Claims, Kerry T. Cooperman

Maryland Law Review

No abstract provided.

Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh

Faculty Scholarship

This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …

A Closer Look At Veil Piercing In Federal District Courts, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

In this project, we utilize six years of original federal district court data to identify the first representative sample of corporate veil piercing litigation. This study will provide a more nuanced understanding of the process of litigation of piercing claims than previous studies, which have been modeled on Robert Thompson's (1991) groundbreaking work on this topic. Our method first identifies veil piercing litigation through Westlaw's trial pleadings database, and proceeds to code each case through detailed examination of PACER records.

We identify and model the differing types of success plaintiffs achieve when they seek to pierce the veil, including those …

E-Discovery Beyond The Federal Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.