Civil Procedure Commons^™

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

Personal Jurisdiction’S Aberrant Theory Of Consent, Roger Michalski

American University Law Review

Consent has been a pillar of personal jurisdiction doctrine at least since Pennoyer. The Supreme Court recently strengthened this pillar by deeming a corporate registration statute to constitute consent. Consent to submit to a court’s adjudicatory power can now be unintentional, based on inaction, is irrevocable, does not have to be informed, is all-or-nothing, and is blind to power inequalities. Failing to say “no” at the right time in the right way means “yes.”

Such a theory of consent clashes with what consent means elsewhere. In other contexts, we are reminded that “no means no,” the “absence of no does …

Procedural Political Economy, Luke P. Norris

Law Faculty Publications

When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy …

The Hidden Verdict: Measuring Implicit Bias In Juror Decision-Making, Gina Dudley

Psychology | Senior Theses

This experiment examines the influence of implicit bias awareness on juror decision-making in cases involving Hispanic defendants. Explicitly, it tests three hypotheses: (1) bias-educated jurors will demonstrate lower conviction rates for Hispanic defendants, (2) these jurors will report higher confidence in their verdicts, and (3) they will show greater awareness of how their previous experiences influence their decision-making. This experiment uses a mock jury paradigm to investigate whether bias awareness interventions affect verdict decisions and juror confidence levels in cases with Hispanic defendants. Ninety participants were randomly assigned to receive or not receive implicit bias education before reviewing a case …

Court Forms And Court Reforms: Pro Se Litigants And The Limited Success Of Standardized Family Court Forms, Caroline Rogus

University of Michigan Journal of Law Reform

The first step in any civil lawsuit, long before a court will contemplate awarding relief, is initiating the court matter: a plaintiff must always start by effectively pleading their case. The court system rests upon the presumption that an attorney will create and file the requisite court documents—including complaints, answers, and motions—on behalf of their client. The reality, however, is that an extraordinarily high number of litigants do not have legal representation and must therefore proceed pro se and submit these documents on their own. Most jurisdictions offer pro se litigants standardized, fillable court forms. These forms are intended to …

Dispute System Counter-Design, Andrew B. Mamo

FIU Law Review

This article introduces the concept of “counter-design” as a practice of challenging and reimagining dispute resolution systems from the ground up and from the inside out. Counter-design provides a critical response to traditional Dispute System Design (DSD) by positing that designs necessarily privilege certain perspectives and interests over others, even when designers follow best practices and ethical principles. Through practices of counter-design, individuals interact with dispute resolution systems, not merely to seek resolutions within the existing framework, but to actively challenge and reshape these systems from within. This concept underscores the dynamics of power, inclusion, and representation within DSD. Counter-design …

Addressing Opioid Use Disorder In The Middle East And North Africa (Mena) Regions, Alyaa Chace

Touro Law Review

The opioid crisis has devastated communities across the United States, prompting extensive litigation against pharmaceutical companies for their role in fueling addiction. Aggressive pharmaceutical marketing has led to the development of key lawsuits against Purdue Pharmaceuticals, the Sackler family, Johnson & Johnson, and Teva Pharmaceuticals, as well as a landmark $26 billion global settlement involving major distributors. U.S. courts have played a crucial role in corporate accountability, mandating record financial settlements alongside behavioral and policy reforms. By contrast, the opioid crisis in MENA, which stemmed largely from illicit drug trafficking often linked to geopolitical instability, has been more often met …

Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …

Litigation, Reform, And The Opioid Crisis: From Mdl To Bankruptcy, Abbe R. Gluck

Touro Law Review

Can bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative …

Defining Arbitration, Jill I. Gross

Cardozo Journal of Conflict Resolution

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts’ inconsistent and unpredictable application of the FAA’s regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

Beyond The Bench: Historical Injustices And Future Pathways For Florida’S Family Court, David J. Blum

Honors Undergraduate Theses

This thesis examines systemic inequities in Florida’s family law system, focusing on how legal doctrines, discretionary practices, and enforcement patterns disadvantage unwed and noncustodial fathers. Drawing on statutory analysis, case law, empirical studies, and psychological research, it evaluates several reforms designed to promote fairness while protecting child welfare. These include mandatory paternity testing at birth, a rebuttable presumption of equal custody, stronger enforcement of visitation orders, equitable tax restructuring, and improved training for legal professionals. Current Voluntary Acknowledgment of Paternity (VAP) procedures often create binding obligations without confirming biological parentage, resulting in long-term emotional, legal, and financial consequences. Research shows …

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Rules And Laws For Civil Actions 2026, Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Beleaguered Sovereign: Judicial Restraints On Public Enforcement, Luke P. Norris, Helen Hershkoff

Law Faculty Publications

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well-acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly minted “major questions” doctrine, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Notice Pleading’S Quiet Return, Alexander A. Reinert

Articles

Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” Commentators expressed alarm, predicting that the new standard …

The Jury Does Not Always Need Help From Lay Opinion Witnesses, Taurus Myhand

Scholarly Works

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some …

When The “Attorney Work Product” Is A New Baby: The Case For Parental-Leave Continuance Rules, Michelle Browning Coughlin

Lewis & Clark Law Review

Parental-Leave Continuance Rules (PLCRs) are gender-neutral procedural rules that provide specific frameworks to courts for granting requests for a continuance of a scheduled legal proceeding or deadline if a necessary counsel is unavailable because they or their parenting partner will be experiencing a birth, adoption, or foster placement of a child. Existing laws protecting parental leave in the United States are tied to employment; and since courts are not generally the employers of attorneys appearing before them, they are not obligated to honor an attorney’s parental leave when scheduling a trial or other legal proceeding. While continuances are granted in …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.