Civil Procedure Commons^™

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

Measuring The Impact Of Access To Justice Programs: An Assessment Tool For Funders And Policymakers, Thomas M. Clarke, Paula Hannaford-Agor

Faculty Publications

Across the fifty states and the nation, many organizations have implemented a variety of programs to reduce the access-to-justice gap. The result is a widely varying patchwork of capabilities that provide different services and solutions in very different amounts that do not necessarily or even usually align with the problems that the target populations face. This paper proposes more of an “engineering” approach by introducing an analytical tool for organizations working on closing the access gap to estimate the potential impact of proposed solutions.

The tool can be used to: 1) assess the magnitude of an access problem that could …

Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in …

Pills, Public Nuisance, And Parens Patriae: Questioning The Propriety Of The Posture Of The Opioid Litigation, Michelle L. Richards

University of Richmond Law Review

The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The …

Toll V. Dist. Ct. (Gilman), 135 Nev., Advanced Opinion 58 (December 5, 2019), Gabrielle Boliou

Nevada Supreme Court Summaries

A blogger claimed that his sources are protected under NRS 49.275. The court held that digital media is protected, but did not address whether a blogger is protected. The district court did not err in allowing discovery to determine whether the blogger acted with actual malice.

Fraudulent Joinder, Federalism, And The Twombly/Iqbal Problem, Charles W. Oldfield

Kentucky Law Journal

No abstract provided.

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

How Covid-19 Rekindled The Spirit Of Teaching, Nayha Acharya

Articles, Book Chapters, & Popular Press

The abrupt end to our classes in the middle of March 2020 due to the Covid-19 situation reignited in me the real sense of what it means to be a teacher. It brought me out of the superficial notion, where being a law professor just means being someone who has students who will listen to me talk about the law, and into the deeper sense - that being a teacher involves a very special human relationship. This transition arose in me, I believe, because the Covid-19 situation forced me to slow down and sit still for a while, and that …

Proof At The Salem Witch Trials, Leonard M. Niehoff

Articles

As of the writing of this article, President Donald Trump's tweets have included roughly 400 references to "witch hunts." In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase "witch hunt" serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination.

Still, most practicing litigators probably …

Preventing Whack-A-Mole Management Of Consumer Debt Cases: A Proposal For A Coherent And Comprehensive Approach For State Courts, Paula Hannaford-Agor, Brittany Kauffman

Faculty Publications

The debt burden is growing, and there is a strong likelihood that state courts will see corresponding increases in debt collection caseloads. To meet the challenge, state courts need to implement policies, rules, procedures, and business practices to manage consumer debt collection cases in a more consistent and coherent manner. As part of the Civil Justice Institute Implementation Plan, the National Center for State Courts and Institute for the Advancement of the American Legal System conducted preliminary research to document the impact of rules enacted in New York State on consumer debt litigation. The project also included an exploratory survey …

Experiments With Suppression: The Evolution Of Repressive Legality In Britain In The Revolutionary Period, Christopher M. Roberts

Loyola of Los Angeles International and Comparative Law Review

This article is concerned with the structure of repressive governance, and how it has evolved historically. It examines this theme through an exploration of the manner which repressive laws and institutions evolved in Britain over the course of the late eighteenth century. In particular, it reviews the various measures that British authorities utilized and relied upon in order to confront a growing wave of calls for social and political reforms. These included a policy of aggressive prosecutions of dissidents; the creation of new institutions such as the Home Office designed to enhance the powers of the central authorities; extralegal measures …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

In Re Application Of Finley, Nevada Ct. App., No. 76715-Coa (July 25, 2019), Ben Coonan

Nevada Supreme Court Summaries

The court found that the lower court had erroneously applied the incorrect statute in determining the requisite waiting period to file an application to seal records, and reversed and remanded with instructions for the lower court to apply the updated statute. The court found Finley’s argument – that a later court is prohibited from considering that conviction in an application to seal further records once record of a conviction has been sealed – without merit because statutory language expressly permits courts to consider sealed records in future applications.

Better By The Dozen: Bringing Back The Twelve-Person Civil Jury, Steven Gensler, Lee Rosenthal, Patrick Higginbotham

Other Faculty Publications

A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was …

The Shadow Judiciary, Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker

Scholarly Works

Magistrate judges function as a shadow judiciary, assisting U.S. district court judges-and sometimes standing in their shoes-in managing caseloads, resolving disputes, making law, and choosing winners and losers. Yet we lack basic knowledge about magistrates themselves, the rules that govern their activity, and the ways in which they execute their duties. To fill those gaps, this Article offers a detailed typology of the district-level local rules and standing orders that govern magistrate operations in civil cases. It also describes a case study of ten years of magistrate practice in a single federal district court, the U.S. District Court for the …

An Empirical Evaluation Of Proposed Civil Rules For Multidistrict Litigation, Margaret S. Williams, Jason A. Cantone

Georgia Law Review

The Civil Rules Committee of the Judicial Conference of the
United States recently began considering the need for specific
rules regarding multidistrict litigation (MDL) proceedings. The
possibility of creating rules specifically for MDL originates with
recently proposed legislation prompted by groups typically tied
to the defense bar. One area the Civil Rules Committee is
considering concerns the use of fact sheets in MDL proceedings.
These party-negotiated questionnaires—directed at both
parties to the case—inform judges and attorneys about the
scope of the proceeding. Understanding whether these case
management tools are currently being used and how they work
with other tools, such …

How Civil Procedure Fails (And Why Administrative Justice Is Better), Allan C. Hutchinson

Articles & Book Chapters

The demand for more and better procedural fairness is a rallying-cry that receives almost universal support. All participants in the legal process – litigants, judges, legislators and lawyers – maintain that the justice of any outcome can be both affected by the quality of the procedures relied upon and offset by the failure to provide access to appropriate and balanced procedural opportunities. Indeed, unless losing litigants or applicants think that they are getting a fair shake when it comes to the procedures used, there will be even greater dissatisfaction with losing than otherwise might be the case. However, while good …

Going Bare In The Law Of Assignments: When Is An Assignment Champertous?, Anthony J. Sebok

Articles

The article critiques the legal distinction between champerty and assignment, arguing that the focus should be on the assignor's motives rather than the assignee's identity. It challenges Dr. David Capper's approach to defining "bare assignments" and proposes that assignments should not be prohibited based solely on the assignee's identity unless they facilitate abus

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard M. Wasserman

Lewis & Clark Law Review

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles: 1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself; 2) the remedy when a law is constitutionally invalid is for the court to halt enforcement; 3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

The Procedural Foundations Of Intellectual Property Information Regulation, Ira Steven Nathenson

Lewis & Clark Law Review

In the academy, legal scholarship on intellectual property, or “IP,” abounds, most of it focusing on the substance of IP. Far less, however, is written about the procedural aspects of IP. This Article focuses on the often-ignored proce- dural foundations of IP and suggests—at a minimum—that procedure so thoroughly pervades IP that IP’s true foundations might be in procedure rather than substance. Considering “IP as procedure” may further allow us to recog- nize that IP procedures may need to be reconceptualized within a broader field of information regulation procedures.

I. II.

Rule 43(A): Remote Witness Testimony And A Judiciary Resistant To Change, Christopher Fobes

Lewis & Clark Law Review

Technology has improved our lives in countless ways. In 1996, it made its way into our federal courtrooms and the Federal Rules of Civil Procedure when the Congress codified Rule 43(a). Rule 43(a) permits a witness to testify remotely via telephone or video transmission upon a showing of good cause. Despite this large step into the modern era, some courts are pressed to exclude a witness’s remote testimony because of Rule 43(a)’s burdensome good-cause standard and the risks implicated by such testimony. The judiciary has struggled to find cohesion in determining when remote witness testimony is permissible. This Note critiques …

Foreword, Robert Klonoff

Lewis & Clark Law Review

This Symposium is entitled, “Class Actions, Mass Torts, and MDLs: The Next 50 Years.” It consists of a collection of articles by leading scholars and practitioners. All of the articles were presented at a live conference—co-sponsored by the Pound Civil Justice Institute—held at Lewis & Clark Law School on November 1 and 2, 2019.

Texas Mdl, D. Theodore Rave, Zachary D. Clopton

Lewis & Clark Law Review

Federal multidistrict litigation (MDL) gets all the attention. This mechanism for consolidating cases filed around the country in a single federal district court for pretrial proceedings has become the dominant mode of resolving mass torts in U.S. courts. But not all mass adjudications find their way into federal court. Texas, like about half of the states, has developed an MDL mechanism to coordinate proceedings within its own courts. In this Essay, we examine the history, doctrine, and data of Texas MDL. Although Texas modeled its approach on the federal MDL statute, the Texas MDL system differs in important ways from …

Layers Of Lawyers: Parsing The Complexities Of Claimant Representation In Mass Tort Mdls, Lynn A. Baker, Stephen J. Herman

Lewis & Clark Law Review

The individual plaintiff in an MDL is subject to the efforts and decisions of numerous different attorneys, including many whom the plaintiff did not choose but who stand to share in any fees resulting from the plaintiff’s case. Which lawyers effectively represent the MDL plaintiff, at what point(s) in time, for what purpose(s), and with what obligations and potential liability to that plaintiff? What obligations and potential liability do the MDL leadership attorneys have to their own individually retained clients and other litigants in the MDL, and how should these attorneys handle any perceived conflicts in their obligations to the …

Procedural Self-Inflicted Wounds?, Joshua P. Davis, Brian J. Devine

Lewis & Clark Law Review

A proposal has recently come before the Federal Civil Rules Advisory Commit- tee to expand the ability of parties in multidistrict litigation to seek immediate interlocutory appellate review. This Essay suggests that the proposal is unwise as a matter of policy. It would make MDL litigation more expensive and less efficient. Counterintuitively, it may even harm the very large corporations who are championing the change. This Essay explains why that might occur—why large corporate defendants may pursue legal innovations that harm them—a possibility with implications well beyond interlocutory appellate review.

Multidistrict Litigation And Common Law Procedure, Alexandra D. Lahav

Lewis & Clark Law Review

On the 50th anniversary of the Multidistrict Litigation Act, the Act has gotten more attention than ever. One area that has led to significant controversy is the use of judicial discretion to craft procedures to manage MDLs. It is generally agreed that judges exercise discretion to create innovative procedures to resolve large-scale aggregate litigation transferred to their courts and that judges learn from approaches in previous MDLs that they think were successful in crafting these procedures. The controversy is that some think that this procedural approach is both exceptional and lawless. This Essay argues against this view, showing how the …

In Defense Of The Cy-Pres-Only Class Action, Robert G. Bone

Lewis & Clark Law Review

Cy pres is frequently used to dispose of class action settlement funds, yet it is one of the most controversial aspects of class action practice. Perhaps the most contested use of cy pres is what I call the “cy-pres-only class action”: a settlement class action in which the judge certifies a class and approves a settlement that expressly provides for a third-party charity to receive all the settlement funds. In these cases, the judge exercises her judicial power to enable a lawsuit that compensates a third party who does not have legal rights at stake and does so without providing …

Symposium Interview On Aggregate Litigation, Arthur R. Miller, Robert Klonoff

Lewis & Clark Law Review

Professor Arthur R. Miller joined Professor Robert Klonoff for a Q&A session at Lewis & Clark Law School.

Multidistrict Litigation And Personal Jurisdiction, Zachary T. Nelson

Lewis & Clark Law Review

Under the Fourteenth Amendment’s Due Process Clause, a court cannot lawfully adjudicate a party’s rights or obligations unless, among other things, that court possesses sufficient personal jurisdiction over the party. The means by which a court may obtain such jurisdiction have grown increasingly narrow in recent years. Parallel to that trend has been the meteoric rise of multidistrict litigation (MDL), in which the Judicial Panel on Multidistrict Litigation transfers and consolidates numerous civil cases in a single federal court that, in many instances, lacks personal jurisdiction over one or more parties. Although MDL is statutorily limited to “pretrial proceedings,” 97% …

The Importance Of Cy Pres In Modern Class Action Jurisprudence And Myths Concerning Its Use, Gerson H. Smoger

Lewis & Clark Law Review

When class actions resolve, it is common for some or even all funds paid to the class to remain undistributed. All U.S. circuits, 40 states, and the Class Action Fairness Act have permitted undistributed funds to be distributed as cy pres. Recently, a few commentators have voiced constitutional objections to cy pres, based upon standing pursuant to Article III, the Rules Enabling Act, and the First Amendment. However, these analyses generally ignore the congressional mandate found within Rule 23 and the power of the courts to supervise cy pres distribution. Finally, the following recommendations are made: such awards should not …