Civil Procedure Commons^™

States Escape Liability For Copyright Infringement?, Michelle V. Francis

Pepperdine Law Review

No abstract provided.

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

An Illusion Of Sacrifice: The Incompatibility Of Binding Stipulations In Cafa Cases , Ryan S. Killian

Pepperdine Law Review

Ever since the enactment of the Class Action Fairness Act of 2005 (“CAFA”), plaintiffs attorneys have sought to circumvent it. Because class certification is more difficult to obtain in federal court than it is in certain state courts, plaintiffs typically prefer to litigate in state court. One method of avoiding CAFA’s removal provision is to limit damages to less than $5 million, thus rendering the action too small to be subjected to the statute. And plaintiffs attorneys have proven willing to stipulate to such diminished damages even where the action is far more valuable. This Note examines whether such stipulations …

Electronically Stored Information: What Hath God Wrought?, Roger S. Haydock

Journal of Law and Practice

No abstract provided.

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann

Faculty Scholarship

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with …

Jurisdictional Sequencing, Alan M. Trammell

Scholarly Articles

Jurisdictional sequencing taps into fundamental questions about the nature and role of subject matter jurisdiction and what, if anything, a court may do before it has established jurisdiction. Because the Supreme Court has not rooted the doctrine in a clear theory, jurisdictional sequencing has engendered confusion among judges and scholars, who have been at a loss to explain it. Although a number of courts have embraced the leeway that the doctrine offers—the ability to dismiss a case on easier grounds before taking up harder jurisdictional questions—most scholars have criticized it as illegitimate or incoherent. This Article is the first to …

Evolutionary Pull, Practical Difficulties, And Ethical Boundaries: Using Facebook To Serve Process On International Defendants, Hans Van Horn

Global Business & Development Law Journal

No abstract provided.

Goodyear And Hertz: Reconciling Two Recent Supreme Court Decisions, Lindsey D. Blanchard

McGeorge Law Review

No abstract provided.

State V. Worthen: Demonstrating Utah's Need For An Expanded, Absolute Victim-Counselor Testimonial Privilege, Barry G. Stratford

Utah OnLaw: The Utah Law Review Online Supplement

Evidentiary privileges have generated disagreement since they were first recognized in the law. These privileges exist to prevent a witness from being compelled to disclose certain information. Such protections acknowledge that certain relationships or communications are so important in society that they warrant heightened confidentiality. A number of privileges are designed to protect communications made during professional relationships. These include the relationship between attorney and client, physician and patient, psychotherapist and patient, and clergyman and penitent. In practice, these privileges require “some sacrifice of availability of evidence relevant to the administration of justice.” When parties seek communications and records arising …

Bridging The Stream Of Commerce: Recommendations For Living In The Post-Nicastro Era, Amanda Iler

McGeorge Law Review

No abstract provided.

Some Thoughts On The Pilot Program For Simultaneous Disclosure Of Expert Witnesses In Cook County, 46 J. Marshall L. Rev. 1181 (2013), Margaret Connery

UIC Law Review

No abstract provided.

Run Through The Wringer: How Cleaning Industry Franchisors Exploit Franchisees' Hope For An American Dream, 47 J. Marshall L. Rev. 827 (2013), John Dunne

UIC Law Review

No abstract provided.

Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane

University of Michigan Journal of Law Reform

Ed Cooper's twenty-year service as the Chief Reporter for the Civil Rules Advisory Committee deserves special recognition and tribute not only because of its longevity-which is remarkable in and of itself-but more particularly, because of the scope and depth of the rule changes he has helped to shepherd into law.

Trial Jurors And Variables Influencing Why They Return The Verdicts They Do - A Guide For Practicing And Future Trial Attorneys, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Using The Scientific Method In The Law: Examining State Interlocutory Appeals Procedures That Would Improve Uniformity, Efficiency, And Fairness In The Federal Appellate System, Hannah M. Smith

Cleveland State Law Review

[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success …

In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew Popper

Scholarly Articles in Law Reviews & Journals

The focus of this article is on the difficulty of securing in personam jurisdiction over foreign entities who steal information technology and intellectual property (IT and IP). The value of stolen IT and IP is somewhere in the range of a trillion dollars over the last decade. Given the current inability to prevent those losses or deter meaningfully those engaged in the misconduct, the article explores the core of the problem: the difficulty of satisfying the minimum contact/fairness requirements of Article III courts. The article addresses several alternative approaches that might allow for more efficient protection of IT and IP. …

Reversing Course: A Critique Of The Court Of Appeals New Rules For Unjust Enrichment And Criminal Legal Malpractice Actions, Jay C. Carlisle Ii

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments by the New York Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder and Dombrowski v. Bulson.

Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu

Michigan Telecommunications & Technology Law Review

When the America Invents Act ("AIA ") was signed in September 2011, many feared the law might benefit larger corporations at the expense of small businesses. This Note examines how one portion of the AIA, governing joinder in patent cases, might actually benefit small businesses by reducing patent assertions from non-practicing entities ("NPEs"). NPE assertions disproportionately affect small businesses, both because NPEs target small businesses more frequently and because patent assertions have a greater impact on individual companies. Prior to the AIA, joining multiple defendants in a single lawsuit offered important advantages for patent holders and allowed NPEs to achieve …

Voir Dire In The #Lol Society: Jury Selection Needs Drastic Updates To Remain Relevant In The Digital Age, 47 J. Marshall L. Rev. 459 (2013), Zachary Mesenbourg

UIC Law Review

No abstract provided.

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica

University of Michigan Journal of Law Reform

This introduction to the essays in this Symposium illuminates Professor Ed Cooper's years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper's many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees' work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over …

Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler

University of Michigan Journal of Law Reform

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp."4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity …

Edward Cooper As Curator Of The Civil Rules, Goeffrey C. Hazard Jr.

University of Michigan Journal of Law Reform

Ed Cooper has had a salient role in maintaining the Rules Committee process as a highly competent and stable element of lawmaking in this country. He is a consummate master of civil procedure and acutely understands the constitutional and political milieu in which the Rules process functions. Along with other similarly competent and observant Reporters, including the senior serving Reporter, Dan Coquillette, he has helped keep the Rules process and product as evenhanded as can be expected in our complicated legal system.

Iron Man Of The Rules, Patrick E. Higginbotham

University of Michigan Journal of Law Reform

To grasp Professor Cooper's contribution to rulemaking, it is helpful to review issues that the Advisory Committee confronted during his tenure. I will focus on the first four of his twenty years of service.

Some Very Personal Reflections On The Rules, Rulemaking, And Reporters, Arthur R. Miller

University of Michigan Journal of Law Reform

My entry into the world of federal rulemaking was one of those unpredictable but welcome fortuities of life. In early 1961, more than a half century ago, I was a happy and progressing associate in a prominent medium-sized, Wall Street, New York City law firm. Columbia Law School approached me to be the Associate Director of its newly formed Project on International Procedure. They dangled several attractive incentives: I could try my hand at teaching some civil procedure; hobnob with the giants of the Columbia faculty, like Herb Wechsler, Walter Gellhorn, Maury Rosenberg, and Jack Weinstein; and take my first …

The Reappearing Judge, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …

The Costs Of Consistency: Precedent In Investment Treaty Arbitration, Irene M. Ten Cate

Faculty Scholarship

No abstract provided.