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Articles 1 - 30 of 56
Full-Text Articles in Civil Procedure
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Public Land & Resources Law Review
In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …
Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux
Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux
Publications
No abstract provided.
Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll
Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll
Articles
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …
The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor
The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor
Chicago-Kent Law Review
No abstract provided.
The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux
The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux
Publications
No abstract provided.
Who Is Responsible For The Stealth Assault On Civil Rights?, Samuel R. Bagenstos
Who Is Responsible For The Stealth Assault On Civil Rights?, Samuel R. Bagenstos
Michigan Law Review
Staszak’s book does a great service in demonstrating the extent of the stealth assault on civil-rights litigation. As Staszak shows, procedural and remedial decisions fly under the public’s radar, but they have exceptionally important consequences. Indeed, one can draw a clear line between judicial decisions on such obscure topics as standing and qualified immunity and the persistent acts of police misconduct that have aroused great public concern in recent months. Any effort to ensure that civil-rights protections make a concrete difference in people’s lives must attend to the procedural and remedial issues Staszak discusses.
Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger
Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger
Indiana Law Journal
The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie …
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
Articles
On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
Publications
No abstract provided.
Allison Orr Larsen On Intensely Empirical Amicus Briefs And Amicus Opportunism At The Supreme Court, Allison Orr Larsen
Allison Orr Larsen On Intensely Empirical Amicus Briefs And Amicus Opportunism At The Supreme Court, Allison Orr Larsen
Popular Media
No abstract provided.
A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux
A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux
Publications
No abstract provided.
Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone
Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone
University of Michigan Journal of Law Reform
Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …
The Future Of Classwide Punitive Damages, Catherine M. Sharkey
The Future Of Classwide Punitive Damages, Catherine M. Sharkey
University of Michigan Journal of Law Reform
Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
University of Michigan Journal of Law Reform
The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …
Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin
Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin
University of Michigan Journal of Law Reform
In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
University of Michigan Journal of Law Reform
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …
Merrill Lynch, Pierce, Fenner & Smith, Inc. V. Curran: Establishing An Implied Private Right Of Action Under The Commodity Exchange Act, Howard E. Hamann
Merrill Lynch, Pierce, Fenner & Smith, Inc. V. Curran: Establishing An Implied Private Right Of Action Under The Commodity Exchange Act, Howard E. Hamann
Pepperdine Law Review
In the case of Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, the United States Supreme Court held that there is an implied private right of action under the Commodity Exchange Act, as amended. As a result of this holding, a private party may maintain an action for damages caused by a violation of the Commodity Exchange Act. In this article, the author examines the Supreme Court's analysis and explores the future impact of the decision in light of the role the judiciary has in legislative matters.
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Pepperdine Law Review
Although traditionally it has been recognized that the President is absolutely immune from personal damage liability for his official acts, there is no precedent for this rule in constitutional text or case law. However, in the case of Nixon v. Fitzgerald, the Supreme Court overruled lower federal courts in establishing a clear precedent for the President's absolute immunity from personal liability for civil damages. The author examines this decision in light of traditional principles of official immunity and analyzes the Court's holding from the standpoint of whether the President is indeed placed "above the law."
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
Pepperdine Law Review
After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …
Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor
Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor
Pepperdine Law Review
In numerous federal environmental statutes, Congress gave plaintiffs the right to recover attorneys' fees when the court finds them "appropriate." In Ruckleshaus v. Sierra Club, the United States Supreme Court held that it was only "appropriate" to grant attorneys' fees when the plaintiff had at least partially prevailed on the merits. The decision ignored both the important role environmental groups play in the interpretation and development of regulatory programs through litigation and the ability of the lower courts to determine when attorneys' fees were "appropriate." The Court, instead, focused on the adversarial nature of such groups and the traditional American …
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
University of Michigan Journal of Law Reform
Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux
Publications
No abstract provided.
Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii
Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii
Pepperdine Law Review
No abstract provided.
Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry
Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry
Pepperdine Law Review
This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …
Cruises, Class Actions, And The Court, David Korn, David Rosenberg
Cruises, Class Actions, And The Court, David Korn, David Rosenberg
University of Michigan Journal of Law Reform Caveat
As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
University of Michigan Journal of Law Reform Caveat
This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …
Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux
Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux
Publications
No abstract provided.
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Michigan Journal of Race and Law
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Michigan Law Review
Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Publications
No abstract provided.