Civil Procedure Commons^™

Erie And Constitutional Structure: An Intellectual History, Craig Green

Akron Law Review

Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term "constitutional" itself. Erie's cultural significance dropped as the legal process school faded. But it has resurfaced among twenty-first-century conservatives as a pillar of federalism (the "old myth") as well as separation of powers (the "new myth"). Especially given Erie's profound reputation as an iconic precedent, the legal community must …

The Erie Doctrine: A Flowchart, Michael S. Green

Akron Law Review

The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.

Erie As A Way Of Life, Ernest A. Young

Akron Law Review

This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just, right, and true. …

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.

Are Interlocutory Qualified Immunity Appeals Lawful?, Michael E. Solimine

Notre Dame Law Review Reflection

For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the …

The Haves Of Procedure, Ion Meyn

William & Mary Law Review

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s path, were futile.

Apparently, There Are Places Like Home: A Path To Propriety For Consent-By-Registration Jurisdiction In The Third Circuit, Brett E. Broczowski

Villanova Law Review (1956 - )

No abstract provided.

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

Legislative Reform Or Legalized Theft?: Why Civil Asset Forfeiture Must Be Outlawed In Ohio, Alex Haller

Cleveland State Law Review

Civil asset forfeiture is a legal method for law enforcement to deprive United States citizens of their personal property with little hope for its return. With varying degrees of legal protection at the state level, Ohio legislators must encourage national policy reform by outlawing civil asset forfeiture in Ohio. Ohio Revised Code Section 2981.05 should be amended to outlaw civil asset forfeiture by requiring a criminal conviction prior to allowing the seizure of an individual’s property. This Note proposes two plans of action that will restore Ohio resident’s property rights back to those originally afforded in the United States Constitution.

The Silliness Of Magical Realism, Kevin M. Clermont

Cornell Law Faculty Publications

Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.

Yet Professors Allen …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Drummond Financial Serivces, Llc Et Al., Order On Summary Judgment Motions, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Equitrade International, Inc. Et Al., Final Order Granting Defendant's Motion For Summary Judgment And Closing Case, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

John Souza Et Al., Order On Defendants' Motions For Summary Judgment, Elizabeth E. Long

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Felon Jurors In Vacationland, James M. Binnall

Maine Law Review

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility. Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance. From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders. Still, to date, no research has focused on jury service as a …

Samaca, Llc, Amended Order On Defendants' Motion For Attorneys' Fees And Expenses And Plaintiff Samaca, Llc's Cross Motion To Compel Arbitration Of Defendants' Motion For Legal Expenses, Alice D. Bonner

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Gush. Small Et Al., Order On Defendant Lankford's Motion To Compel Discovery And Plaintiffs' Motion For Protective Order, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Frances B. Bunzl Et Al., Order On Plaintiffs' Motion For Determination Of Admlssibility Of Documents, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

The Past And The Present: Stare Decisis In Wisconsin Law, Daniel R. Suhr, Kevin Leroy

Marquette Law Review

None

What Do You Know? Discovering Document Compilations In 39(B)(6) Depositions, Sara Leonetti

Washington Law Review

The work product doctrine emerged as a judicially created, practical solution to resolve problems inherent in the Federal Rules of Civil Procedure (FRCP). While the FRCP famously sought to broaden discovery and increase parties’ access to information, the rules infamously failed to prevent attorneys from discovering each other’s work product. For policy reasons—primarily to keep some semblance of the adversarial system—the U.S. Supreme Court created work product qualified immunity to prevent attorneys from discovering their opponents’ work, mental impressions, and legal strategies. At the end of the twentieth century, courts significantly extended the work product doctrine when they began to …

Forum Clauses At The Margin, James P. George

Faculty Scholarship

This article will first dispel the historical account and demonstrate an enforcement history that was reasoned and fairly consistent in England, but erratic in the United States, yielding to an ever-increasing contract-autonomy view after Bremen. The history concludes with concerns about what is now the Bremen/Atlantic Marine presumption (referred to under either case name depending on the context and time frame), including its encouragement of summary analysis and enforcement. To illustrate this extreme, the last section focuses on a Fifth Circuit decision that, with its cursory analysis and extreme favoring of enforcement, leaves significant questions unanswered—a result the law should …

Samaca, Llc, Order On Defendants' Motion For Attorneys' Fees And Expenses And Plaintiff Samaca, Llc's Cross Motion To Compel Arbitration Of Defendant's Motion For Legal Expenses, Alice D. Bonner

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Nancy Johnson Et Al., Order On Discovery Dispute, Kelly Lee Ellerbee

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, James M. Mcclure

William & Mary Business Law Review

The Case of Swart v. Pawar involved a novel question of law: can a president of a corporation claim authority on behalf of that corporation to consent to federal removal in a suit against a co-equal shareholder co-director even though that president lacks board approval or explicit authority from the business’s bylaws or charter? To address this question, the parties in Swart analogized removal to suit initiation and defense. Since the federal courts hearing the case did not assess the validity of these analogical arguments or a president’s removal authority generally, this Note evaluates the analogies as well as several …

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent …

The Discrimination Presumption, Joseph A. Seiner

Notre Dame Law Review

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in …