Civil Procedure Commons^™

Six Decrees Of Separation: Settlement Agreements And Consent Orders In Federal Civil Litigation, Anthony Disarro

American University Law Review

No abstract provided.

Piped In: The Tenth Circuit Weighs In On Extending American Pipe Tolling In State Farm Mutual Automobile Insurance Co. V. Boellstorff, Caleb Brown

Oklahoma Law Review

No abstract provided.

Pleading In Ohio After Bell Atlantic V. Twombly And Ashcroft V. Iqbal: Why Ohio Shouldn't Notice A Change, Alana C. Jochum

Cleveland State Law Review

Ohio has only briefly addressed the entrance of Bell Atlantic onto the pleading stage, and, thus far, Ohio state courts have mostly retained the Conley standard for determining pleadings. However, multiple pleading standards are emerging, making the issue ripe for a determination by the Supreme Court of Ohio as to what the true pleading standard is for Ohio. This Note will explain why Ohio should preserve Conley, even if doing so diverges from the original intent of federal-state uniformity embodied by the Federal Rules of Civil Procedure.

Colon Santos V. Cooperativa De Seguros Multiples Y El Aparente Conflicto Entre Las Doctrinas De La Solidaridad Y La Inmunidad, 79 Rev. Jur. U.P.R. 1091 (2010), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Plaintiff's Motion To Remand Denied: Arguing For Pre-Service Removal Under The Plain Language Of The Forum-Defendant Rule, Matthew Curry

Cleveland State Law Review

This Note will examine all sides of the district court split and ultimately argue in favor of the plain language of the forum-defendant rule to permit pre-service removal.

'Canada' In Electronic Evidence, Steve Coughlan

Articles, Book Chapters, & Popular Press

Canada is a bilingual and bi-jurisdictional country. Most provinces and territories are mainly English speaking and have common law as the basis for their legal system. The exception is the province of Quebec which is governed by civil law and where the majority speaks French. However, it must be noted that Quebec civil law has been substantially affected by common law, in particular with respect to discovery rules. The latter are closer to common law discovery rules than they are from, for instance, French civil law. Another important factor for the review of the management of digital evidence in Canada …

The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin

Faculty Scholarship

In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to …

The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur

Faculty Articles

We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …

Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav

Faculty Articles and Papers

This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. …

The Poor As A Suspect Class Under The Equal Protection Clause: An Open Constitutional Question, Henry Rose

Faculty Publications & Other Works

Both judges and legal scholars assert that the United States Supreme Court has held that the poor are neither a quasi-suspect nor a suspect class under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They further assert that this issue was decided by the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It is the thesis of this article that the Supreme Court has not yet decided whether the poor are a quasi-suspect or a suspect class under Equal Protection. In fact, the majority in San Antonio Independent School …

Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky

Faculty Scholarship

Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie …

Reform In California's Immigration Enforcement And Immigration Court, Nelson E. Gil

CMC Senior Theses

According to the Department of Homeland Security, Office of Immigration Statistic, California accounts for approximately 2,600,000 illegal immigrants in 2009. This number represents about 25 percent of the entire estimated illegal immigrant population in the United States, which is roughly 10.8 million. Between 2003 and 2008, the U.S. government removed 1,446,338 noncitizens from the United States. This rise in deportation is a result o the changes that have been enacted by the federal government over the years that transformed the nature of immigration enforcement. This thesis explores the California Immigration Enforcement system from the programs established to apprehend illegal aliens …

Setting Foot On Enemy Ground: Cease-And-Desist Letters, Dmca Notifications And Personal Jurisdiction In Declaratory Judgment Actions, Marketa Trimble

Scholarly Works

In declaratory judgment actions brought by alleged infringers against rights holders, such as actions for declaration of invalidity or non-infringement of intellectual property rights, U.S. courts have long maintained that sending a cease-and-desist letter alone, absent other acts in an alleged infringer's forum, is not a sufficient basis for personal jurisdiction over the rights holder who mailed them to the alleged infringer's forum. Notwithstanding the similarities between cease-and-desist letters and notifications under the Digital Millennium Copyright Act (DMCA), the Tenth Circuit Court of Appeals recently decided that sending a notification alone does establish a basis for personal jurisdiction over the …

The Procedural Foundation Of Substantive Law, Thomas O. Main

Scholarly Works

The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible-leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about …

Estate Of Pew V. Cardarelli, Natallia Krauchuk

NYLS Law Review

No abstract provided.

12th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2010, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

Close Enough For Government Work: The Committee Rulemaking Game, Paul Stancil

Faculty Scholarship

Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game - advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court - are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress …

Civil Gideon: The Poor Man's Fight, Lee Shevell

Public Interest Law Reporter

No abstract provided.

United States Ex Rel. Drc, Inc. V. Custer Battles, Llc: A Brutal Battle Foreshadowing The Future Of False Claims Act Litigation, Kathleen H. Harne

Maryland Law Review Online

No abstract provided.

Civil Procedure Reform In Switzerland And The Role Of Legal Transplants, Samuel P. Baumgartner

Akron Law Faculty Publications

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide.

First, the new Swiss code of civil procedure includes a number of features that may look like …

Facilitating Wage Theft: How Court Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

Scholarly Works

In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability …

Kesalahan-Kesalahan Matrimoni Dalam Kes Perceraian Di Luar Mahkamah Dan Tanpa Kebenaran Mahkamah : Kajian Di Mahkamah Syariah Negeri Selangor Darul Ehsan., Mazlan Abd Manan

Student Works (2010-2019)

There is no specific nas (justification) provided in the Al-Quran and the Al-Sunnah with regards to divorce outside the Court without due permission. However, over the years this ongoing problem has led the scholars to view their justifications on the matter. In view of this, the purpose of this dissertation is to feature the study on divorce cases outside Court and without the Court’s permission and its implementation to Malaysian law specifically in reference to cases from the Syariah Courts in Selangor. The Selangor Islamic Family Law Enactment 1984 for instance, as proposed by the Syariah Court has come up …

Ashcroft V. Iqbal: How The Supreme Court Rewrote Rule 8 To Immunize High-Level Executive Officials From Post-9/11 Liability (A Plausible Interpretation), Cara Shepley

Maryland Law Review Online

No abstract provided.

Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …

Does Cercla Preempt New York State Law Claims For Cost Recovery And Contribution?, Kristi Weiner

NYLS Law Review

No abstract provided.

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

Issue Preclusion In Complex Litigation, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether" cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This Article identifies and analyzes significant issues that arise in the …

The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …