Civil Procedure Commons^™

In Re Government Attorney-Client Privilege: A Categorical Rule To Settle The Issue, Luke Charette

Washington and Lee Law Review Online

This Note explores the reasoning and factors used by each of the federal circuits in deciding whether or not to uphold attorney-client privilege between the government and the lawyers representing it. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney-client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney-client privilege case law, as well as the policy underpinnings of the privilege itself, dictate that a categorical rule is appropriate.

The Story Of A Class: Uses Of Narrative In Public Interest Class Actions Before Certification, Anne E. Ralph

Washington Law Review

When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification.

For decades, obtaining class certification under Federal Rule of Civil Procedure 23 was not a significant challenge for plaintiffs seeking to litigate as a class. But recent restrictive procedural developments—including heightened standards for class certification—threaten the powerful stories that can be told through public interest class actions.

Missing in the critical analysis of class action jurisprudence is any discussion of …

Berberich V. Bank Of America, 136 Nev. Ad. Op (Mar. 26, 2020), Amelia Mallette

Nevada Supreme Court Summaries

The Supreme Court of Nevada considered whether a quiet title action from a foreclosure sale was barred by NRS 11.080 because Berberich was in possession of the property for five years before commencing the action. The Court held that the limitations period outlined in NRS 11.080 will not run against an owner who is in undisputed possession of the land.

Deciding, ‘What Happened?’ When We Don’T Really Know: Finding Theoretical Grounding For Legitimate Judicial Fact-Finding, Nayha Acharya

Articles, Book Chapters, & Popular Press

The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be …

Putting The Notice Back Into Pleading, Robin Effron

Faculty Scholarship

No abstract provided.

Notice Pleading In Exile, Adam N. Steinman

Faculty Scholarship

According to the conventional wisdom, the Supreme Court's 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article — part of a symposium commemorating the Iqbal decision's tenth anniversary — highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.

Janus-Faced Rulemaking, Brooke Coleman

Cardozo Law Review

No abstract provided.

2020 Mlk Keynote Address: Michelle Alexander Presentation, Center For Social Equity & Inclusion, Michelle Alexander, Rosanne Somerson, Matthew Shenoda

Martin Luther King, Jr. Series

2020 MLK Series Keynote Michelle Alexander brings audiences profoundly necessary and meaningful insights on the practice of mass incarceration that plagues the US justice system, as well as eye-opening conversation on how we can end racial caste in America. Lecture Wednesday, January 22, 2020 at 5:30pm, RISD Auditorium, 17 Canal Walk, Providence, RI.

In her acclaimed bestseller The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Alexander peels back the curtain on systemic racism in the US prison system in a work that the New York Review of Books describes as "striking in the intelligence of her …

Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack

Touro Law Review

No abstract provided.

The Constitutionality Of Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t.

This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of …

Institutional Loyalty And The Design Of Partisan Gerrymandering Adjudication In The Federal Courts, Michael E. Solimine

Faculty Articles and Other Publications

In 2019 the Supreme Court held in Rucho v. Common Cause that challenges in federal court to partisan gerrymandering were nonjusticiable political questions. Writing for the 5-4 majority, Chief Justice John Roberts expressed concern that frequently deciding such cases would politicize the Court itself. Such expressions seem to fit well within the characterization of the Chief Justice as an institutionalist concerned with the legitimacy and reputation of the federal courts. This article addresses how the unique design and procedures of gerrymandering litigation in federal courts ought to inform such institutional loyalty arguments. Those features include that such cases are litigated …

A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson

Faculty Publications

In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.

Registration-based consent to jurisdiction has a long …

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …

Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson

Faculty Scholarship

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …

Rethinking The Conflicts Revolution In Personal Jurisdiction, Jesse M. Cross

Faculty Publications

It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts tests should be grounded in a theory of sovereignty. Instead, the argument goes, it pivoted the field to pragmatic tests that focus on practicality, fairness, and convenience.

As this Article explains, this conventional wisdom is incorrect. It misunderstands the intellectual revolution that remade the field, and it has generated needless confusion …

Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?, Noah Weingarten

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court's decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II) appeared to give corporate defendants a new tool to defeat class certification in the context of securities fraud class action litigation: rebutting the requisite presumption of reliance by showing a lack of "price impact"-a term that Halliburton II used to describe whether the price of an allegedly affected company's stock went up or down. However, based on an empirical study of pre- versus post-Halliburton II class certification decisions, it appears that the outcomes of class certification decisions have become even …

The Commonality Of Causation, Sergio J. Campos

Articles

This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School ofLaw, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is "common, " or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of …

Confidentiality In The Courts: Privacy Protection Or Prior Restraint?, Sergio J. Campos

Articles

In civil litigation courts often deal with information that is subject to a previously imposed restraint on the ability of a court or others to use the information. Such “evidentiary prior restraints” arise most prominently in settlement agreements, which may include nondisclosure provisions that prevent information concerning the settlement from being used by parties to the agreement. But evidentiary prior restraints can also arise from prior court action, as when parties seek information subject to a protective order or sealing order made by a different court. Although evidentiary prior restraints have received great attention given recent controversies concerning sexual harassment, …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

The West Caribbean Conundrum: The United States Versus France On The Availability Of Forum Non Conveniens Under The Montreal Convention Of 1999, David Cluxton

Journal of Air Law and Commerce

No abstract provided.

Deregulation And Private Enforcement, Brian T. Fitzpatrick

Lewis & Clark Law Review

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only …