Civil Procedure Commons^™

How The Law Court Uses Duty To Limit The Scope Of Negligence Liability, Paul F. Macri

Maine Law Review

The element of duty is the least understood and most amorphous element of negligence. One reason that duty is not well understood is that duty analysis combines consideration of fact-specific issues of foreseeability of harm, relationship between the parties, and seriousness of injury with analysis of the public policy implications of finding a duty in the specific case, including the burden that will be placed on defendants by imposing a duty. This is a delicate balancing act for most courts. Over the last eleven years, the Maine Supreme Judicial Court, sitting as the Law Court, has employed duty analysis in …

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Northwestern University Law Review

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated …

Castillo V. United Fed. Credit Union, 134 Nev. Adv. Op. 3 (Feb. 1, 2018), Jocelyn Murphy

Nevada Supreme Court Summaries

The Court determined that (1) in a class action suit parties may not aggregate putative class member claims to reach the statutorily required jurisdictional amount for subject matter jurisdiction; (2) NRS § 104.9625(3)(b) permits an individual to combine the amount of sought statutory damages with the proposed deficiency amount in consumer transactions to obtain the jurisdictional amount for subject matter jurisdiction; and (3) district courts possess original jurisdiction over all claims for injunctive relief, even those that fail to meet the jurisdictional amount.

California V. United States Bureau Of Land Management, Molly M. Kelly

Public Land & Resources Law Review

After President Trump’s Executive Order No. 13783 encouraging relaxing regulatory burdens on energy production, the Bureau of Land Management reevaluated its 2016 “Waste Prevention Rule” which addressed waste of natural gas from venting, flaring, or other leaks resulting from oil and natural gas production activities. The BLM sought to postpone the Rule’s compliance date to give the agency time to promulgate a new rule—effectively overruling the 2016 Rule. Plaintiffs challenged the agency’s compliance under the Administrative Procedures Act, and the court found the BLM did not properly follow APA requirements.

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley

Journal of Intellectual Property Law

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Hogan Vs. Gawker Ii: A Statutory Solution To Fraudulent Joinder, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article will first review the intersection of federal jurisdiction and litigation strategy by examining the requirements for diversity jurisdiction in federal court as well as the circumstances that must be present to allow a defendant to remove a case from state court to federal court. The Article will then review the history of the court-created doctrine of fraudulent joinder, and will examine the various tests currently in use by the lower federal courts. The Article will then address whether it makes more sense to create a statutory solution, and will examine and analyze the Fraudulent Joinder Prevention Act of …

Patagonia Vs. Trump, Richard Henry Seamon

Articles

No abstract provided.

Discovery Disclosure And Deterrence, Sergio J. Campos, Cheng Li

Articles

Courts, practitioners, and scholars have recently expressed concern over the ex post costs of discovery in civil litigation. In this Article, we develop a game theoretic model of litigant behavior to study an overlooked phenomenon-the ex ante effects of discovery on a defendant's incentive to engage in unlawful conduct. We focus on motions to seal, which limit the disclosure of discovered information to the public, but permit disclosure to the court and parties. Specifically, we examine the effect different rules regarding such motions have in deterring defendants from engaging in unlawful behavior. We show that as a rule becomes more …

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.

Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark

Faculty Articles

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

How To Sue A Robot, Roger Michalski

Faculty Articles

We are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural …

How To Fill A Procedural Loophole: Re-Evaluating The Ragan And Walker Analysis In Light Of Federal Rule Of Civil Procedure 4(M), Holly M. Boggs

Georgia Law Review

Legislatures implement statutes of limitations to
protect defendants from being brought into lawsuits for
incidents long past. However, a proceduralloophole in
the Georgiafederal court system could permit plaintiffs
to disregardstatutes of limitations and wait as long as
they please to notify a defendant of a pending claim.
The loophole exists because federal courts in Georgia
must defer to state law governing the tolling of statutes
of limitations, and that state law is procedurally
incompatible with the federal court's system. In order
to fill the procedural loophole, this Note argues that the
Eleventh Circuit should apply the federal rule-rather
than Georgia's …

The Ballad Of Harry James Tompkins, Brian L. Frye

Law Faculty Scholarly Articles

At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway. Colwell's house was at …

Federal Rule 26(A)(2) Expert Witness Disclosures: Strategies For Composing And Attacking Expert Disclosures, Douglas B. Bates, Chelsea R. Stanley, James L. Burt Iii

Journal of Air Law and Commerce

Federal Rule of Civil Procedure 26(A)(2) governs disclosure of expert testimony. The rule purports to create a clear delineation between experts that must provide a written report and those that do not. The rule then outlines the disclosure requirements that must be satisfied as to each type of expert. This article focuses on the implications of Rule 26(A)(2) in practice, with an emphasis on the field of aviation litigation. The article begins by discussing the general difference between non-retained experts and retained experts and the disclosure requirements associated with each. The article then progresses into a series of practice pointers …

Extending Federal Rule Of Civil Procedure 4 (K) (2): A Way To (Partially) Clean Up The Personal Jurisdiction Mess, Patrick J. Borchers

American University Law Review

No abstract provided.

Extending Federal Rule Of Civil Procedure 4(K)(2): A Way To (Partially) Clean Up The Personal Jurisdiction Mess, Patrick J. Borchers

American University Law Review

No abstract provided.

2017 Patent Law Decisions Of The Federal Circuit, Laura C. Whitworth

American University Law Review

No abstract provided.

Teaching And Learning Personal Jurisdiction After The Stealth Revolution, Deborah Challener

Journal Articles

In this Response [to Professor Michael Hoffheimer’s article The Stealth Revolution in Personal Jurisdiction], Professor Challener points out one additional cost of the stealth revolution: the substantially increased difficulty of teaching and learning the law of personal jurisdiction which, in turn, erodes law students’ confidence in the Supreme Court as an institution.

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Faculty Works

This article is one in a series of papers that sets the record straight about the type, quality and quantity of information that U.S. cities may employ, in order to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago. The goal is to gauge the uniformity, as well as the relative cost-effectiveness, of the parking ticket appeals process. The article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the …

The Decline Of Anglo-American Civil Jury Trial Practice, William V. Dorsaneo Iii

SMU Law Review

This article provides a brief historical explanation of the role that juries have played in Anglo-American civil trial practice. In doing so, the article documents the rise and fall of jury trial practice as a mechanism for resolving civil disputes in both England and America. The article explains how the modern rules of procedure and procedural statutes promote resolving disputes through pretrial litigation procedures at the expense of resolving disputes by jury trial.

The article begins with a description of the use of juries in England at the end of the twelfth century and continues until the near disappearance of …

Florida's Controlling Summary Judgment Rule 1.510(C) Contrasted With The Common Law-Created Rule Grounded On Two Conflicted Federal Cases, H Michael Muñiz

St. Thomas Law Review

Florida litigators, who are familiar with the Florida Rules of Civil Procedure, should not be surprised that the prescribed, controlling procedural rule to be followed as well as for a Florida state trial court to adjudicate a motion for summary judgment ("MSJ") is presumptively set forth within Rule 1.510 of the modem-day Florida Rules of Civil Procedure. The current rule expressly provides, in material part, "the judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled …

Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz

Articles by Maurer Faculty

No abstract provided.

Civil Procedure: Pre-Trial & Trial, Amanda Sotak, Andrew C. Whitaker, Timothy Daniels, Amber D. Reece

SMU Annual Texas Survey

No abstract provided.

The Curious Origin Of Texas Pleading, Justice Jason Boatright

SMU Law Review

For 150 years, judges and legal scholars said that the Texas pleading system came from Spain. They explained that Mexico used a simple Spanish pleading system that English-speaking immigrants to Mexican Texas liked more than the complicated procedure they had known in the United States. After separating from Mexico, the story goes, Texas retained the Spanish system.

But that story is probably wrong. The Republic of Texas enacted its first pleading law in 1836. It does not look like Spanish pleading laws; it looks like an 1824 law written by Stephen F. Austin for his colony’s alcalde courts. Austin’s law …

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances …

More Than 'Revenge Porn' Civil Remedies For The Nonconsensual Distribution Of Intimate Images, Suzie Dunn, Alessia Petricone-Westwood

Articles, Book Chapters, & Popular Press

The non-consensual distribution of intimate images, or “revenge porn” as it is colloquially known, is a growing phenomenon in the digital era that has devastated the lives of countless individuals. Targets of this conduct have suffered both short and long-lasting harms that have had serious repercussions on their mental health, physical well-being, and safety. Once their intimate images have been shared without their consent, they can face damage to their personal and professional reputations. There are reported cases where individuals have lost their jobs, have had to relocate, were stalked and harassed, experienced some form of emotional trauma, and had …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

The Scc's Dilemma: What To Do With Interveners?, Richard Haigh

Articles & Book Chapters

At a conference in 2016, Osgoode Hall Law School Dean Lorne Sossin made the following offhand comment: “I think it is possible to tell the most important Supreme Court of Canada cases by the number of interveners that were involved.” I assume what he meant--and granted, it was somewhat tongue in cheek--that the more interveners there are in a case, the more important the case.

The comment intrigued me. Is it true? It is such a simple proposition. Intuitively, it seems right: more parties would wish to involve themselves in those cases that have larger impacts, or that represent more …