Civil Procedure Commons^™

Exiting Litigation, Jay Tidmarsh

Journal Articles

The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.

Disputing Limited Liability, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

This project presents six years of hand-collected federal district court data to analyze the first representative sample of veil piercing litigation. Our method identifies veil piercing complaints through Westlaw's trial pleadings database and codes each case through a detailed examination of PACER records. We test a variety of hypotheses to understand how such litigations are resolved. We find that plaintiffs succeed quite often in veil piercing litigation, if success is defined as winning on motions that do not terminate a case. A variety of legal and extra-legal factors predict such interstitial veil piercing successes. Voluntary creditor causes of action promote …

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss

Publications

Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes--which, unlike trials, occur in most cases. The growth of computer data--e-mails, lingering deleted files, and so forth--increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars and economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality's flaws but rejects the consensus blaming bad …

Switzerland, Samuel P. Baumgartner

Akron Law Faculty Publications

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.

Should Summary Judgment Be Granted?, Bradley Scott Shannon

American University Law Review

This article discusses (and criticizes) the recent change from "shall" to "should" in Federal Rule of Civil Procedure 56 to describe the standard by which a federal district court is to decide a "properly made and supported" motion for summary judgment. The article concludes that the text of Rule 56, which formally provided that such a motion "shall" be granted, cannot plausibly be construed as meaning "should"; that this change was not supported by those authorities cited by the Federal Civil Rules Advisory Committee; and that, as a normative matter, "should" is an inappropriate standard in this context. Federal district …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

A Closer Look At Veil Piercing In Federal District Courts, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

In this project, we utilize six years of original federal district court data to identify the first representative sample of corporate veil piercing litigation. This study will provide a more nuanced understanding of the process of litigation of piercing claims than previous studies, which have been modeled on Robert Thompson's (1991) groundbreaking work on this topic. Our method first identifies veil piercing litigation through Westlaw's trial pleadings database, and proceeds to code each case through detailed examination of PACER records.

We identify and model the differing types of success plaintiffs achieve when they seek to pierce the veil, including those …

National Juries For National Cases: Preserving Citizen Participation In Large-Scale Litigation, Laura Dooley

Scholarly Works

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use …

The Executive-Internalization Approach To High-Risk Corporate Behavior: Establishing Individual Criminal Liability For The Intentional Or Reckless Introduction Of Excessively Dangerous Products Or Services Into The Stream Of Commerce, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

Scholarly Works

It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

Scholarly Works

A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

The Growth Of Cost-Shifting In Response To The Rising Cost And Importance Of Computerized Data In Litigation, Ross Chaffin

Oklahoma Law Review

No abstract provided.

The Information Black Hole: Managing The Issues Arising From The Increase In Electronic Data Discovery In Litigation, Tracey L. Boyd

Vanderbilt Journal of Entertainment & Technology Law

This Note explores the problems that the increase in electronic data discovery has created in litigation. In particular, this Note centers on the issue of cost-allocation involved when discovery includes electronically stored information. Part II of this Note contains a background discussion of the technical and legal aspects of the discovery of electronic information. It examines the different types of electronically stored data, the innate differences between traditional discovery and electronic discovery, and analyzes the Federal Rules of Civil Procedure as they apply to the discovery of electronically stored information. Next, this Note discusses several early cases in which courts …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

6th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2004, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

Publications

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman

Articles, Book Chapters, & Popular Press

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Diligent Prosecution Bar To Citizen Suits: The Search For Adequate Representation, Peter A. Appel

Scholarly Works

To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not …

International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris

Librarians' Articles

Last fall a Symposium at Chicago-Kent College of Law entitled "Constructing International Intellectual Property Law: The Role of National Courts," held on October 18-19, 2001, brought together scholars interested in a group of problems related to the relationship between harmonized rules of international civil procedure and diverse nationally-based rules of intellectual property. Subsequently, extensive discussions between the authors developed this Article into its present form.

Adrift On The Sea Of Indeterminacy, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

Today's conflicts scholars no doubt consider themselves a diverse bunch, with widely differing views about how law should be chosen in multistate disputes. But from the trenches, most of them look alike. Each waxes eloquent about the search for the perfect solution-the most intellectually and morally satisfying choice of law for each dispute-and each ends the theorizing by embracing some proposition that will prove wholly indeterminate in practice.

The Theory Of Fee Regulation In Class Action Settlements , Bruce L. Hay

American University Law Review

No abstract provided.

What Happens When Parties Fail To Prove Foreign Law?, William L. Reynolds

Faculty Scholarship

No abstract provided.

Pro's And Con's Of Proposed Rule 23 Amendments , Susan J. Becker

Law Faculty Articles and Essays

This article investigates whether the proposed amendments to Rule 23 (recently approved for publication and comment by the U.S. Judicial Conference's Standing Committee on Rules of Practice and Procedure) are a modest first step toward necessary class action reforms, or "a presciption for class action abuse."

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

Scholarly Works

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

In-Kind Class Action Settlements, Scott R. Peppet

Publications

No abstract provided.

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

Scholarly Works

The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …