Civil Procedure Commons^™

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

Property Owners Look Out: The Train Is Coming, Natalie Crane

Seattle University Law Review

Over 4 million people currently live in the Puget Sound area in Washington state, and about 6 million people are expected to reside in the area by 2050. Additionally, Seattle renters faced a 71.2% increase in rent prices from 2010 to 2019. This data supports the need for much of the congested Seattle population to move outward and commute into the city for work. The implementation of a 116-mile system and other efforts to increase public transportation makes this need achievable and affordable.

This Comment focuses on the issue of just compensation in eminent domain; specifically, unique questions of compensation …

Willner V. South County Hospital, 222 A.3d 1251 (R.I. 2020), Samantha Christina Ferrucci

Roger Williams University Law Review

No abstract provided.

Reimagining Civil Case Management, Paula Hannaford-Agor

Faculty Publications

Court rules are necessary, but insufficient by themselves to address problems of cost and delay. Instead, state courts today are embracing a considerably broader view of civil case management, one that encompasses the total constellation of court rules, business practices, culture and governance, and staffing and technology infrastructure. Effective case management now recognizes the importance of five core components that are necessary to achieve timely, cost-effective, and procedurally fair justice: (1) triage to ensure that cases receive attention proportional to their needs; (2) process simplification to remove procedural barriers that unnecessarily complicate litigation; (3) stakeholder engagement to ensure clear communication …

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

Scholarly Works

No abstract provided.

Toward A More Democratic America, Thomas Kleven

Seattle Journal for Social Justice

No abstract provided.

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Emergency Removals Without A Court Order: Using The Language Of Emergency To Duck Due Process, Jane Brennan

Journal of Law and Policy

For a brief moment during the recent September democratic presidential debate, the ugly underbelly of the child welfare system unexpectedly took center stage. When asked about what responsibility Americans need to take to repair the legacy of slavery, the former vice president responded by propagating a myth that Black parents do not know how to parent. Former Vice President Joe Biden said “[w]e bring social workers into homes and parents to help them deal with how to raise their children. It’s not that they don’t want to help. They don’t—they don’t know quite what to do.” What exactly is it …

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

Waiving Removal, Waiving Remand–The Hidden And Unequal Dangers Of Participating In Litigation, Joan Steinman

Florida Law Review

The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of …

A New Approach To Plaintiff Incentive Fees In Class Action Lawsuits, Jason Jarvis

Northwestern University Law Review

Because modern litigation is time-intensive and expensive, a consumer has no monetary incentive to sue over a low-value claim—even when the defendant has clearly violated that consumer’s legal rights. But the defendant may have harmed many consumers in the same way, causing significant cumulative damage. By permitting the aggregation of numerous small claims, class action lawsuits provide a monetary incentive for lawyers and plaintiffs to pursue otherwise low-value suits. Often, an important part of this incentive is the “incentive fee,” an additional payment awarded to the named plaintiffs as compensation for the time they spend and risks they assume in …

A Louisiana Theory Of Juridical Acts, Nikolaos A. Davrados

Louisiana Law Review

The article examines the concept of juridical act from both a comparative and Louisiana law perspective to establish the validity of the general theory of juridical acts and to determine the useful components drawn from each system.

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Okafor V Nweke [2007] 10 Nwlr (Pt. 1043) 521, Oluwakemi A. Dowodu-Sipe

SAIPAR Case Review

No abstract provided.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Michigan Law Review

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Preservation Requests And The Fourth Amendment, Armin Tadayon

Seattle University Law Review

Every day, Facebook, Twitter, Google, Amazon, ridesharing companies, and numerous other service providers copy users’ account information upon receiving a preservation request from the government. These requests are authorized under a relatively obscure subsection of the Stored Communications Act (SCA). The SCA is the federal statute that governs the disclosure of communications stored by third party service providers. Section 2703(f) of this statute authorizes the use of “f” or “preservation” letters, which enable the government to request that a service provider “take all necessary steps to preserve records and other evidence in its possession” while investigators seek valid legal process. …

Targeting The Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments To A Most Consequential Law, Amy Bresnen, Lisa Kaufman, Steve Bresnen

St. Mary's Law Journal

Few Texas laws enacted in recent decades have had a greater impact on civil litigation or been more litigated than the Texas Citizen’s Participation Act (“TCPA”) passed in 2011. Despite its stated purpose of protecting First Amendment rights, as written, the TCPA’s seemingly limitless application confounded judges and litigants alike, causing the 86th Legislature in 2019 to pass sweeping changes to that law. The Article describes the original statute’s problematic nature, the caselaw interpreting it, and the recent changes’ legislative history and substance. The authors highlight contributions of key legislators and stakeholders. The Article’s extensive treatment of changes to key …

Litigating Welfare Rights: Medicaid, Snap, And The Legacy Of The New Property, Andrew Hammond

Northwestern University Law Review

In 2017, the Republican-controlled Congress was poised to make deep cuts to the nation’s two largest anti-poverty programs: Medicaid and the Supplemental Nutrition Assistance Program (SNAP), commonly known as “food stamps.” Yet, despite a unified, GOP-led federal government for the first time in over a decade, those efforts failed. Meanwhile, the Trump Administration and its allies in state government continue to pursue different strategies to roll back entitlements to medical and food assistance. As public interest lawyers challenge these agency actions in federal court, roughly five million Americans’ health insurance and food assistance hang in the balance. This Article asks …

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

An Unbroken Thread: African American Exclusion From Jury Service, Past And Present, Alexis Hoag

Faculty Scholarship

No abstract provided.

Erie Slapp Back, Jack B. Harrison

Washington Law Review

Dozens of states have enacted anti-Strategic Lawsuits Against Public Participation (SLAPP) laws to counter SLAPP suits, or lawsuits filed to silence a defendant who has spoken out against a plaintiff. The primary goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant from exercising their right to free speech by threatening excessively expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, discovery limitations, and fee shifting, all designed to allow a defendant to expeditiously dispose of the SLAPP suit before engaging in costly discovery.

This Article discusses the development of …

Rethinking Standards Of Appellate Review, Adam Steinman

Indiana Law Journal

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Rethinking Standards Of Appellate Review, Adam N. Steinman

Faculty Scholarship

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

Federal Magistrate Court Of Appeals: Whether Magistrate Judge Disposition Of Section 2255 Motions Under Consent Jurisdiction Is Statutorily And Constitutionally Permissible, Corey J. Hauser

Washington and Lee Law Review

For decades the Supreme Court has balanced the tension between judicial efficiency and adherence to our constitutional system of separation of powers. As more cases were filed in federal courts, Congress increased the responsibilities and power given to magistrate judges. The result is magistrate judges wielding as much power as district judges. With post-conviction relief under § 2255, magistrate judges take on a whole new role— appellate judge—reviewing and potentially overturning sentences imposed by district judges.

This practice raises two concerns. First, did Congress intend to statutorily give magistrate judges this power? The prevailing interpretation is that § 2255 motions …

Professor Aaron-Andrew Bruhl: Reflections On The Fall 2020 Semester, Aaron-Andrew P. Bruhl

Law School Personal Reflections on COVID-19

No abstract provided.