Civil Procedure Commons^™

Licensing Paralegals To Practice Law: A Path Toward Bridging The Justice Gap In Minnesota, Conner Suddick

Departmental Honors Projects

There are few legal avenues for low-income and other marginalized groups in the United States to seek civil justice. A lack of legal assistance in civil issues can be detrimental to a person’s health and wellbeing. Given this reality, the legal profession must broaden its capacity to serve these needs, and one path is to embrace the aid of paralegals. In 2016, the legal community of Minnesota had conversations about whether the state should provide limited licenses to paralegals. To study models from across the country, the Minnesota State Bar Association (MSBA) formed the Alternative Legal Models Task Force. In …

Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main

Scholarly Works

In this essay, Professor Main offers one original observation and poses two new questions about the vanishing civil trial.

Mediation: An Unlikely Villain, Thomas O. Main

Scholarly Works

Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally …

Finding Prejudice From Lost Esi: An Analysis Of Courts’ Standards Under Amended Federal Rule Of Civil Procedure 37(E), Thomas J. Joyce

Oklahoma Law Review

No abstract provided.

Robots Are Coming: A Discussion Of Choice-Of-Law Issues And Outcomes In Telesurgical Malpractice, Megan Cloud

Texas A&M Law Review

New technology frequently emerges that challenges the legal status quo. Early adopters must then grapple with uncertainty over how the law will apply to novel legal quandaries. There is no better example of this than in medicine; however, the health care field is notoriously risk averse. Despite this, the practice of medicine stands to gain tremendously from these technological advancements. One such advancement is the relatively new ability to perform robotic surgery in which the surgeon is remote from the patient. Widespread use of this technology would improve rural access to surgical care, as well as improve access to more …

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

The Convergence Of Adr And Odr Within The Courts: The Impact On Access To Justice, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The complexion of justicewithin many judiciaries has changed dramatically through the influence of twoglobal movements – the modern alternative dispute resolution (ADR) movement andthe more recent development of online dispute resolution (ODR). The former waveled to the creation of multi-door courthouses, court-annexed mediationprogrammes and innovations such as judicial settlement conferences. In the last decade, the rapid growth of ODRhas precipitated more changes in the administration of justice. Online courts have been designed in Englandand Wales (the Online Solutions Court suggested by Lord Briggs) and BritishColumbia (the Civil Resolution Tribunal). This paper discusses theimpact of the ADR and ODR waves on …

Due Process And The Myth Of Sovereignty, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Statute Of Limitations For Child Sexual Abuse Civil Lawsuits In Georgia, Emma Hetherington, Jean Mangan, Chase Lyndale, Michael Nunnally, Wilbanks Child Endangerment And Sexual Exploitation Clinic, University Of Georgia School Of Law

Scholarly Works

Only 29% of child sexual abuse reports result in criminal charges being filed. As a result, most states have enacted civil statutes of limitations to allow survivors to file claims both against abusers and also those who owed them a duty of care and knew or should have known about the abuse. In 2015 the Georgia legislature passed the Hidden Predator Act (HPA) to amend the state’s civil statute of limitations. Under the HPA, survivors of child sexual abuse that occurred prior to July 1, 2015 were given a two-year retroactive window under which to file claims against their abusers. …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

The Parable Of The Forms, Samuel L. Bray

Journal Articles

This is a parable about the forms of action, code pleading, and the "civil action" of the Federal Rules.

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

The Union Of Law And Equity: The United States, 1800-1938, Kellen R. Funk

Faculty Scholarship

David Dudley Field was the architect of the union – or fusion or merger – of equity and law in New York state, and the Field Code was widely adopted in other states. Field’s vision of the union of law and equity has prevailed in the United States, including at the federal level, at least in theory. However, the practise of law and acts of the courts indicate that the reality is rather different. Equity was not sundered by the Field Code or its federal counterpart, the Federal Code of Civil Procedure 1938. Equity continues to operate distinctly in various …

Forum Selling Abroad, Jens Frankenreiter, Stefan Bechtold, Daniel Klerman

Scholarship@WashULaw

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff manipulation of …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

Scholarly Works

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

Scholarly Works

On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

The Future Of Multidistrict Litigation, Jay Tidmarsh, Daniela Peinado Welsh

Journal Articles

The occasion for this Essay is the fiftieth anniversary of the enactment of the multidistrict-litigation statute, 28 U.S.C. § 1407. Multidistrict litigation has quietly become a central feature of federal litigation, sweeping one-third or more of all federal civil cases each year into aggregate proceedings. Recent commentary on multidistrict litigation has been highly critical of the “Wild West” quality of the proceedings, which arguably benefit repeat-player lawyers at the expense of their clients’ interests and autonomy. Reform of the process now seems likely. This Essay begins by describing the features, most historically contingent, that have brought multidistrict litigation to this …

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

Scholarly Works

This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.

The Transformative Potential Of Digital Media & Technology On Class Actions, Caroline Desmond

Lewis & Clark Law Review

In this Note, the author discusses the true potential that digital media and technology hold for class actions beyond effectuating notice to members of a class. Ironically, just as challenges have mounted against the use of the class action device, digital technology has continued to advance in the background to a point where it may be used to break down barriers to class certification now facing would-be class plaintiffs.

However, much of the current discussion across law reviews and blogs as it relates to digital media and class actions pertains to the effect of digital media on notice. Not only …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.