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Civil Procedure Commons™

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2015

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Institution
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Articles 241 - 259 of 259

Full-Text Articles in Civil Procedure

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga Jan 2015

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

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Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton Jan 2015

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

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A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux Jan 2015

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

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The Law's Clock, Frederic Bloom Jan 2015

The Law's Clock, Frederic Bloom

Publications

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …

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Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer Jan 2015

Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer

Faculty Publications

A movement is afoot to revise the longstanding presumption that in civil litigation the producing party bears the cost of production in response to discovery requests. An amendment to Rule 26( c )-which took effect in December 2015-makes explicit courts' authority to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next-an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated by probusiness interest groups and advocates before the Advisory Committee …

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“Touching The Concerns” Of Kiobel: Corporate Liability And Jurisdictional Remedies In Response To Kiobel Vs. Royal Dutch Petroleum, Chinyere Kimberly Ikegbunam Jan 2015

“Touching The Concerns” Of Kiobel: Corporate Liability And Jurisdictional Remedies In Response To Kiobel Vs. Royal Dutch Petroleum, Chinyere Kimberly Ikegbunam

American Indian Law Review

No abstract provided.

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Civil-Izing Federalism, Brooke Coleman Jan 2015

Civil-Izing Federalism, Brooke Coleman

Faculty Articles

When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the …

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The Efficiency Norm, Brooke Coleman Jan 2015

The Efficiency Norm, Brooke Coleman

Faculty Articles

Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that …

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Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman Jan 2015

Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman

Faculty Articles

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change …

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Pragmatism Rules, Elizabeth G. Porter Jan 2015

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

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Civil Justice Initiative: The Landscape Of Civil Litigation In State Courts, Paula Hannaford-Agor, Scott Graves, Shelley Spacek Miller Jan 2015

Civil Justice Initiative: The Landscape Of Civil Litigation In State Courts, Paula Hannaford-Agor, Scott Graves, Shelley Spacek Miller

Faculty Publications

This study was undertaken to inform the deliberations of the Conference of Chief Justices (CCJ) Civil Justice Improvements Committee as it developed recommendations based on evidence-based practices to improve civil case processing in state courts. Much of the debate concerning the American justice system focuses on procedural issues that add complexity to civil litigation, resulting in additional cost and delay and undermining access to justice. Many commentators are alarmed by the increasing privatization of the civil justice system and particularly by the dramatic decline in the rates of civil bench and jury trials. In addition, substantially reduced budgetary resources since …

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A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez Jan 2015

A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez

Faculty Publications

This article, which is based on the research conducted for the General Report ‘Relief in Small and Simple Matters in an Age of Austerity’ presented at the XV World Congress of Procedural Law, provides a contextualised and broad overview of these phenomena in the United States. After describing the general features of the federal and state judiciaries, including its adversarial model of judging, and the importance of the jury system, the article turns its attention to discuss the factors that affect the cost of litigation in the United States, the different models of litigation funding, the available legal aid mechanisms, …

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Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper Jan 2015

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …

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Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs Jan 2015

Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs

Scholarly Works

This Article unites two disparate subjects of profound interest to legal scholars. One is fraud-on-the-market, reaffirmed late last term in Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton II). Probably the most important claim in the securities litigation universe, fraud-on-the-market is the sine qua non of almost every securities class action that is filed. The other subject consists of the work of Judges Frank Easterbrook and Richard Posner, the “superstars” of the current federal appellate bench.

My purpose is several-fold: first, to show that fraud-on-the-market’s evolution, up through and culminating in Halliburton II, has been driven in significant measure …

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The Jury's Constitutional Judgment, Nathan Chapman Jan 2015

The Jury's Constitutional Judgment, Nathan Chapman

Scholarly Works

Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …

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The Mdl Vortex Revisited, Thomas B. Metzloff Jan 2015

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

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Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla Jan 2015

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …

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Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr. Jan 2015

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

Scholarly Works

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

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Five Questions After Atlantic Marine, Stephen E. Sachs Jan 2015

Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …

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