Civil Procedure Commons^™

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …

General Jurisdiction 2.0: The Updating And Uprooting Of The Corporate Presence Doctrine, Edward D. Cavanagh

Faculty Publications

(Excerpt)

For well over a century, state courts have exercised personal jurisdiction over foreign corporations if they engage in commerce within the state “not occasionally or casually, but with a fair measure of permanence and continuity.” This assertion of judicial power, referred to as general jurisdiction and also as the corporate presence doctrine, permitted courts to entertain claims that had no nexus with the forum state against foreign companies “doing business” within that state. The United States Supreme Court, however, sent this line of cases “careening into the abyss” in Daimler AG v. Bauman, wherein the Court held that …

The Complicated Economics Of Prison Reform, John F. Pfaff

Faculty Scholarship

No abstract provided.

Judgment Without Notice: The Unconstitutionality Of Constructive Notice Following Citizens United, Carliss N. Chatman

Kentucky Law Journal

Citizens United v. Federal Election Commission positions a corporation as an entity entitled to constitutional rights equal to the rights of natural persons. In many situations, this holding may be the impetus for reform and reconsideration of state restrictions on corporate rights that were problematic before the decision. The operation of corporate statutes on corporations chartered in one state but doing business in another state as a foreign corporation is an area in need of this Citizens United-inspired review. Although most corporations operate as foreign corporations outside of their state of incorporation, neither the constitutional validity of corporate withdrawal …

Making Sense Of Legislative Standing, Matthew I. Hall

Scholarly Works

Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Scholarly Works

When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t …

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

Saving The Public Interest Class Action By Unpacking Theory And Doctrinal Functionality, Suzette M. Malveaux

Publications

No abstract provided.

Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky

Publications

No abstract provided.

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

Heightened Procedure, Jessica Erickson

Law Faculty Publications

When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for identical procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure”—additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the …

Virginia Practice Series: Jury Instructions, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

Virginia Practice Series-Jury Instructions is a continuation and update of previous editions, which won widespread approval among the bench and bar for almost 40 years.

As in the past, this book is primarily confined to the most common areas of jury trial work, torts and criminal law. Where possible, the language of the instructions is taken directly from reported cases or case records. Where this is not possible, we have set out instructions that should meet both the general rules regarding the form of instructions and the specific substantive legal rules. In the latter cases, close attention has been paid …

Meeting The Challenges Of High-Volume Civil Dockets, Hannah E. M. Lieberman, Paula Hannaford-Agor

Faculty Publications

Consumer-debt-collection, landlord/tenant, small-claims, and contract cases involving relatively small amounts comprise almost 80 percent of civil caseloads. This essay examines the challenges associated with high-volume civil dockets and summarizes recommendations to address these challenges and strengthen the integrity of the civil justice system.

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

Georgia Law Review

This Article analyzes the proportionality standard in discovery. Many believe the renewed emphasis on this standard contained in the 2015 Amendments to the Federal Rules of Civil Procedure has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in …

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

Scholarly Works

This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.

The Future Of Oral Arguments, Jay Tidmarsh

Journal Articles

The civil-justice literature is replete with discussions of two phenomena: case management and the vanishing trial. These two phenomena are not unrelated. One commonly state goal of case management is to find ways, other than trial, to resolve civil disputes that find their way into court. Some observers find the movements toward case management and away from trial to be salutary; others find them disquieting. Regardless of the merits of this debate, the delivery of civil justice is undeniably evolving.

This evolution affects and changes many of the traditional attributes of American-style civil justice. The Essay examines one of these …

Diagnosis And Treatment Of The "Superiority Problem", Jay Tidmarsh

Journal Articles

Christine Bartholomew has provided a brilliant diagnosis of the "superiority problem" in class-action law, although I am not convinced that her plan to treat the will cure the patient. If superiority is to be eliminated, predominance must also be abandoned. Some new formula must replace Rule 23(b)(3) in its entirety. The problem of Rule 23(b)(3) is that the factors (especially superiority) give too much power to courts to get the results they want. Unless the ills that Professor Bartholomew documents are to be repeated in a new form, any replacement for Rule 23(b)(3) must be far more specific and concrete …

Civil Procedure Rules For European Courts, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Georgia Law Review

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia's superior courts is not as demanding as the preliminary injunction standard in Georgia's federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia's courts; the moving party need not prove all four of …

Measuring Older Adult Confidence In The Courts And Law Enforcement, Joseph A. Hamm, Lindsey E. Wylie, Eve M. Brank

Department of Psychology: Faculty Publications

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a …

A Servile Copy: Text Reuse And Medium Data In American Civil Procedure, Kellen R. Funk, Lincoln A. Mullen

Faculty Scholarship

At the opening of the first Nevada legislature in 1861, Territorial Governor James W. Nye, a former New York lawyer, warned the assembly that it had the burden to erect a functioning government within a short legislative session. »Happily for us, a neighboring State whose interests are similar to ours, has established a code of laws« that Nye argued could »be made applicable« to Nevada. That neighboring state was California, and the California mining lawyer William Morris Stewart followed Nye’s instructions to the letter. Stewart literally cut and pasted the California Practice Act into the session bill, crossing out state …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …