Civil Procedure Commons^™

Book Review. Justin Vaisse, Neoconservatism: The Biography Of A Movement, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

"Arise Out Of" Or "Related To": Textualism And Understanding Precedent Through Interpretatio Objectificata, "Objectified Interpretation"—A Four Step Process To Resolve Jurisdiction Questions Utilizing The Third Circuit Test In O’Connor As A Uniform Standard, Victor N. Metallo

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Self-Interest, Public Interest, And The Interests Of The Absent Client: Legal Ethics And Class Action Praxis, Jasminka Kalajdzic

Osgoode Hall Law Journal

Are existing ethical norms adequate to address the realities of class proceedings? In this article, the author explores the premise that current rules of professional conduct are effective when applied to class action praxis. In Part I, she discusses the peculiar features of class proceedings and how they create unique challenges to the ethical conduct of litigation. In Part II, the author confronts a fundamental (and often overlooked) question: Who is the client in a class proceeding to whom ethical duties are owed? Having identified the range of judicial and academic views on the unique dimensions of class actions, she …

Plausibility Pleading Employment Discrimination, Charles A. Sullivan

William & Mary Law Review

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules of Civil Procedure, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. In addition, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been …

Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Cornell Law Faculty Publications

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, the judge gets to choose the decisional sequence in light of those various interests.

The law sees fit to put few limits on the judge's power to sequence. The few limits are, in fact, quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Faculty Publications

The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC, Judge Shira A. Scheindlin-of the Zubulake v. UBS Warburg LLC2 e-discovery casespenned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches …

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

Procedure, Substance, And Erie, Jay Tidmarsh

Journal Articles

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal courts …

Revising The Analysis Of Personal Jurisdiction To Accommodate Internet-Based Personal Contacts, Matthew L. Perdoni

University of the District of Columbia Law Review

From online banking, to cyber-shopping, to the growth of social-networking websites, the Internet is a medium for human interaction as much as it is a part of modern commerce and business, and now encompasses nearly every facet of American life. By all indications, use will become more widespread and complex over time. The Internet now facilitates the modern functional equivalent of human interaction, and provides worldwide access to users with the mere click of a button. For these reasons, examining the role of the Internet in the law is critical. Particularly, it is necessary to consider whether and to what …

Summary Of City Of Reno V. Building & Construction Trades Council Of Northern Nevada, 127 Nev. Adv. Op. No. 10, Marissa Pensabene

Nevada Supreme Court Summaries

An appeal from district court order granting judicial review in a prevailing wage action.

Law Day Oral Argument Session 5th District Court Of Appeal, 2011, Honorable Kerry I. Evander, Presiding Judge, Honorable Jay P. Cohen, Honorable Bruce W. Jacobus

Law Day Presentations

As part of the fifth annual Law Day event, a three judge panel from the Florida Fifth District Court of Appeal is hearing appellate oral arguments in the FAMU College of Law Ceremonial Moot Courtroom. The first arguments are regarding evidence and jury instruction issues; the second case involves real property, mortgages and liens, as well as jurisdiction issues; the final arguments are regarding juror non-disclosure. A question-and-answer session follows each set of arguments during which the justices and attorneys entertain questions about the appellate process and organization of the court.

Summary Of J.E. Dunn Northwest, Inc. V. Corus Construction Venture, Llc., 127 Nev. Adv. Op. No. 10, Christopher Scott Connell

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order granting summary judgment in a mechanic’s lien priority action.

Summary Of Simmons Self-Storage Partners, Llc V. Rib Roof, Inc., 127 Nev. Adv. Op. No. 6, Nevada Law Journal

Nevada Supreme Court Summaries

An appeal from mechanic’s lien action where the district court determined the lienable amounts, but failed to order the sale of the properties to satisfy the amount due under the lien.

Deadly Silence: An Assessment Of Emergency Alert Systems For Lincoln County, Georgia, Gretchen B. Keneson,

Georgia Journal of Public Policy

Rural counties have a predisposition to sustaining catastrophic losses during natural emergencies. These counties tend to have poorer economic conditions that exacerbate attempts at hazard mitigation.  Emergency Alerts Systems (EAS) are the most efficient and effective ways to provide information of impending danger.  This study will compare and contrast different EAS to determine which would accommodate the needs of a community. The most successful way for most counties to alert citizens is through the use of a combination of redundant systems. For pastoral Lincoln County, Georgia the optimal systems are an alert siren and auto call capabilities.  Both of these …

The Attorney–Client Privilege And Discovery Of Electronically-Stored Information, Adjoa Linzy

Duke Law & Technology Review

The attorney-client privilege is the most sacred and important privilege in our legal system. Despite being at the center of daily practice, the privilege still remains a mystery for many lawyers. This is primarily because the privilege is not absolute, and there are certain actions or non-actions that may waive it. The application of the privilege is further complicated by electronic discovery, which has both benefits and drawbacks. On one hand, it has made the practice of law more efficient. On the other hand, it has made it easier to inadvertently waive the attorney-client privilege in response to a discovery …

Global Civil Procedure Trends In The Twenty-First Century, Scott Dodson

Faculty Publications

Recent scholarship in comparative civil procedure has identified
“American exceptionalism” as a way to describe practices which set the
United States apart from most of the world, particularly the civil law world.
This Article focuses on two areas of “exceptionalism”: pleading standards
and the role of judges. Specifically, pleading requirements are considerably
less strict in the United States compared to other countries. Additionally,
U.S. judges are less active in conducting litigation than their counterparts
elsewhere, especially judges in the civil law tradition. This Article traces
some modern trends toward convergence between the United States and
the rest of the world. …

The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore

Faculty Scholarship

There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …

Group Consensus, Individual Consent, Elizabeth Chamblee Burch

Scholarly Works

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make …

The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to …

The Deep Seabed: The Laws Of Nature And Nature’S Manganese Nodules, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

Law Faculty Scholarship

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Finding Access To The Federal Courts: How The Inconsistent Application Of Federal Jurisdiction In Cases With Significant Foreign Relations Implications Affects Mining And Agriculture Industries, Rebecca C. Griffin

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield

Sturm College of Law: Faculty Scholarship

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.

"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion--But Should Not Have, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article discusses the effect Shady Grove is likely to have on vertical choice-of-law in cases involving Federal Rule of Civil Procedure 23.

Suicide Causation Experts In Teen Wrongful Death Claims: Will They Assist The Trier Of Fact?, 45 J. Marshall L. Rev. 51 (2011), Andrea Maciver

UIC Law Review

No abstract provided.

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

Internet Contracting And E-Commerce Disputes: International And U. S. Personal Jurisdiction , Anne Mccafferty

Global Business Law Review

In cases involving international defendants, a variety of bases have been deemed appropriate for a U.S. court to assert personal jurisdiction, including nationality, domicile, “purposeful availment,” and a number of federal statutes. With the explosion of the Internet and the resulting expansion of international business transactions via the Web, courts have struggled to adapt traditional modes of adjudication consistent with established common, statutory and international law. Internet transactions—now known as e-commerce—involve the “practice of buying and selling goods and services through online consumer services on the Internet.” In a sphere of commerce apparently limitless in its reach, this article explores …

The Emerging Federal Class Actions Brand , John C. Massaro

Cleveland State Law Review

Class actions raise a fundamental question about our judicial system. Is the purpose first and foremost to achieve a societally-desired level of law enforcement and deterrence, or is the primary goal to foster citizen participation in the resolution of private disputes? This Article provides the first extended analysis of this question in light of five recent Supreme Court decisions regarding class actions, the evolution of legislative initiatives in the area, and the docket activity in sixteen of the largest recent federal securities class actions. A single conclusion follows: we are witnessing the emergence of a new national “brand” of class …

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …