Civil Procedure Commons^™

Summary Of Costello V. Casler, 127 Nev. Adv. Op. No. 36, Danielle Woodrum

Nevada Supreme Court Summaries

An appeal from a district court summary judgment in a tort action where the defendant was deceased prior to the filing of the complaint and the statute of limitations had run before the decedent’s estate could be added to the complaint.

Summary Of Pasillas V. Hsbc Bank Usa, Et. Al., 127 Nev. Adv. Op. No. 39, Meredith Still

Nevada Supreme Court Summaries

An appeal from a district court order denying a petition for judicial review arising in a foreclosure mediation action.

Live Hearings And Paper Trials, Emily Spottswood

Scholarly Publications

This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

The Repressible Myth Of Shady Grove, Kevin M. Clermont

Cornell Law Faculty Publications

This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Journal Articles

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …

Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal

Scholarly Works

This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and …

Stolen Art, Looted Antiquities, And The Insurable Interest Requirement, Robert L. Tucker

Akron Law Faculty Publications

Trafficking in stolen art and looted antiquities is a multi-billion dollar enterprise. Stolen art and looted antiquities are ultimately sold to museums or private collectors. Sometimes the purchasers acquire them in good faith. But other times, the purchasers know, suspect, or willfully blind themselves to the possibility that the piece was stolen or illegally excavated and exported up the chain of title.

This problem is compounded by customs and course of dealing in the art and antiquities trade. Dealers generally decline to provide meaningful information to prospective purchasers about the provenance of a piece, and sophisticated purchasers customarily acquiesce in …

Federal Register 2.0: Public Participation In The Twenty-First Century, Lauren R. Dudley

Legislation and Policy Brief

On July 26, 2010, the Office of the Federal Register and the Government Printing Office (GPO) launched “Federal Register 2.0,” a web version of the daily Federal Register.  As of now, the site is only a prototype; therefore, “Federal Register 2.0” is not yet an official legal edition of the Federal Register, and it will not become official until the Administrative Committee of the Federal Register (ACFR) issues a regulation granting “Federal Register 2.0” official legal status.  Once “Federal Register 2.0” becomes official, the website will allow the public to receive notice of proposed agency regulations, link to a separate …

Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin

Seattle University Law Review

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …

Members Only: The Need For Reform In U.S. Intercountry Adoption Policy, Colin Joseph Troy

Seattle University Law Review

In the last five years, Americans have adopted nearly seventy thousand children from foreign countries. The trend of intercountry adoption, “the process by which a married couple or single individual of one country adopts a child from another country,” is representative of the new globalized world, where families are formed and dissolved beyond the bounds of national borders. Although intercountry adoption has enabled many adoptive parents to form loving families and provide caring living environments for countless children, intercountry adoption is not without its share of problems. Corruption and abuse, such as child trafficking, have in many cases marred the …

Summary Of Lund V. Dist. Ct., 127 Nev. Adv. Op. No. 28, Ryan Johnson

Nevada Supreme Court Summaries

A petition for a writ of mandamus directing the district court to vacate its order dismissing petitioner’s counterclaims that added new parties to the action and to reinstate those counterclaims.

Summary Of Arguello V. Sunset Station, Inc., 127 Nev. Adv. Op. No. 29, Charles Gianelloni

Nevada Supreme Court Summaries

Appeal from a district court summary judgment in a tort action.

Asymmetrical Jurisdiction, Matthew I. Hall

Scholarly Works

Most people — and most lawyers — would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap — a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction.

In an effort to address this problem, …

The Limits Of Procedural Private Ordering, Jaime L. Dodge

Scholarly Works

Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs – most commonly, forum selection and choice of law provisions. I argue that these terms are mere instantiations of a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified by contract. Parties are no longer merely selecting between publicly-created procedural regimes but customizing the rules of procedure to be applied by the court – from statutes of limitations, discovery obligations and the admissibility of …

Summary Of Sparks V. Alpha Tau Omega, 127 Nev. Adv. Op. No. 23, Cristen Thayer

Nevada Supreme Court Summaries

Appeal from two district court orders granting summary judgment in favor of multiple defendants in a tort action.

Responding To The Loss Of An En Banc Quorum (Update: Prawfsblawg Gets Results!?), Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Summary Of Ruiz V. City Of North Las Vegas, 127 Nev. Adv. Op. No. 20, Christian Balducci

Nevada Supreme Court Summaries

An appeal from the District Court’s dismissal of a petition to vacate an arbitration decision because the petitioner lacked standing.

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Did The Supreme Court Recently Exercise A Power That Had Lain Dormant For Decades?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Summary Of Valley Health System V. District Court, 127 Nev. Adv. Op. No. 15, Ryan Johnson

Nevada Supreme Court Summaries

The Court hears a motion for a writ of mandamus to vacate a district court order. The district court order adopted a discovery commission report compelling production of requested documents.

At&T'S Long Game On Unconscionability, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

A Moral Rights Theory Of Private Law, Andrew S. Gold

William & Mary Law Review

Private law—the law of torts, contracts, and property—is at an interpretive impasse. The two leading conceptual theories of private law—corrective justice and civil recourse theories—both suffer from significant weaknesses. Given these concerns, private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand private law. I will argue that private law is best understood as a means for individuals to exercise their moral enforcement rights.

Moral enforcement rights exist when an individual may legitimately use coercion to force another individual to comply with his or her moral duties. Not all interpersonal …

Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam

BYU Law Review

No abstract provided.

Reaping The Benefits Of Class Cerification: How And When Should "Significant Proof" Be Required Post-Dukes?, Julie Slater

BYU Law Review

No abstract provided.

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

Scholarly Works

Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse preferences …

Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender

Seattle University Law Review

This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil- commitment proceedings. This Comment clarifies the existing law governing the determination of a party’s right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard …

Summary Of Bmw V. Roth, 127 Nev. Adv. No. 11, Danielle Woodrum

Nevada Supreme Court Summaries

Consolidated appeals from the Eighth Judicial District Court order granting a new trial in a tort action and from post-judgment orders regarding an award of attorney fees and costs.