Civil Procedure Commons^™

Human-Centered Civil Justice Design, Victor D. Quintanilla

Articles by Maurer Faculty

This Article introduces a novel approach to improving the civil justice system, referred to as human-centered civil justice design. The approach synthesizes insights and practices from two interdisciplinary strands: human-centered design thinking and dispute system design. The approach is rooted in human experiences with the processes, systems, people, and environments that members of the public encounter when navigating the civil justice system and how these experiences interact with the entangled web of hardships and legal adversities they face in the everyday.

Human-centered civil justice designers empathize with the intended beneficiaries and stakeholders of the civil justice system, seeking to deeply …

Three Models Of Adjudicative Representation, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Faculty Scholarship

No abstract provided.

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Scholarly Works

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew I. Hall

Scholarly Works

Three pending lawsuits challenge President Trump's practice of accepting payments and other benefits from foreign governments through his businesses as violative of the Foreign Emoluments Clause. They also allege that the President's practice of accepting payments and benefits from state or federal governmental units violates the Domestic Emoluments Clause. These actions raise interesting questions about the meaning of two little-discussed provisions of the Constitution. But before reaching the merits the courts will first have to grapple with issues of justiciability - in particular, with the question whether plaintiffs have "standing" to bring their claims in federal court. This article explains …

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.

Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have …

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of …

The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari

Fordham Law Review

Both state and federal courts have procedural rules that allow a plaintiff to voluntarily dismiss a claim without prejudice and then to refile it within the applicable statute-of-limitations period. However , a plaintiff’ s right to this procedural avenue is not absolute, and courts maintain broad discretion in deciding whether to dismiss a claim with or without prejudice. If a court allows a plaintiff to voluntarily dismiss a time-barred claim without prejudice, the plaintiff may be able to refile the claim in a jurisdiction with a longer statute of limitations. As a result, the defendant loses the ability to assert …

The Dormant Commerce Clause As A Limit On Personal Jurisdiction, John F. Preis

Law Faculty Publications

For over 70 years, the Due Process Clause has defined the law of personal jurisdiction. This makes sense, because being forced to stand trial in a far-off state will sometimes be fundamentally unfair. What does not make sense, however, is the Dormant Commerce Clause’s apparent irrelevance to personal jurisdiction. The Dormant Commerce Clause addresses state laws affecting interstate commerce, and a plaintiff’s choice of forum is often a commercially driven choice between different state courts. So why isn’t the Dormant Commerce Clause part of personal jurisdiction doctrine?

This Article makes the case for its relevance, and demonstrates how the Dormant …

Civil Practice And Procedure, Christopher S. Dadak

Law Student Publications

Continuing in the rich vein of prior Annual Surveys, this article examines developments in Virginia civil procedure and practice in the past year. The survey includes a discussion of the relevant decisions from the Supreme Court of Virginia, changes to applicable rules of practice or procedure, and new legislation, which will likely affect the practice of a civil practitioner in the Commonwealth of Virginia.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This article examines developments in Virginia civil procedure and practice in the past year. The survey includes a discussion of the relevant decisions from the Supreme Court of Virginia, changes to applicable rules of practice or procedure, and new legislation, which will likely affect the practice of a civil practitioner in the Commonwealth of Virginia.

"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, Teressa E. Ravenell

Villanova Law Review (1956 - )

No abstract provided.

Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr

Florida Law Review

This Comment seeks to explain the strange turn of events leading to these unusual alliances and to suggest that Dart provides an important window into the way the Court manipulates its certiorari jurisdiction to achieve substantive policy ends. It is not surprising that the Court stretched its certiorari jurisdiction (or at least failed to do its due diligence) in granting certiorari in a decision denying federal court access to a class action. The Court has gone out of its way in recent years to expand federal jurisdiction over class actions while simultaneously trying to defang the class action device. Although …

Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg

Florida Law Review

Part I of this Comment briefly summarizes the pertinent facts of Huff. Part II surveys the current circuit split on intervention in Tax Court proceedings. Part III analyzes the proper standard for review of the USVI’s motion to intervene under FRCP 24(a)(2), as well as the proper standard regarding all appellate review of Tax Court procedural decisions—a discussion that is largely absent from both scholarly works and court opinions. This Comment concludes in Part III with a critique of the Huff court’s FRCP 24(a)(2) analysis.

Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler

St. John's Law Review

(Excerpt)

This Note argues that the circuit courts should adopt a loose narrow interpretation of § 1920(4), like the Federal Circuit did in CBT Flint Partners, LLC v. Return Path, Inc., and tax only a limited number of the electronic discovery services rendered in document production. Part I of this Note examines § 1920(4)’s statutory history and its application in federal court. Part II discusses the varying approaches taken by each side of the circuit split. Finally, Part III argues for implementation of a loose narrow interpretation because it more appropriately comports with other provisions of the Federal Rules …

Private Solutions To Global Crises, Gregory R. Day

St. John's Law Review

(Excerpt)

The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers …

One Percent Procedure, Brooke D. Coleman

Washington Law Review

Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while …

Fiat Lux: Tracing A Standard Of Review For Class-Certification Orders, Curtis E.A. Karnow

The Journal of Appellate Practice and Process

No abstract provided.

One Percent Procedure, Brooke D. Coleman

Washington Law Review

Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while …

Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

In many states, legislatures have mandated juryless fact-finding in common law–based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to the nature …

Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, Tanya Monestier

Law Faculty Scholarship

It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court's jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard …

Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl

Northwestern University Law Review

Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit’s recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine …

The Failed Superiority Experiment, Christine P. Bartholomew

Journal Articles

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh

Journal Articles

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.

Parliament enacted fire-courts legislation on eight occasions …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Davidson V. Davidson, 132 Nev. Adv. Op. 71 (Sept. 29, 2016), Hunter Davidson

Nevada Supreme Court Summaries

The Court determined that: (1) the six-year statute of limitations in NRS 11.190(1)(a) applies to claims for enforcement of a property distribution provision in a divorce decree; and (2) the statute of limitations period in an action on a divorce decree commences “from the last transaction or the last item charged or last credit given.”

Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, Ronald Weich

All Faculty Scholarship

Good morning Chairman Franks, Ranking Member Cohen and members of the Subcommittee. My name is Ronald Weich and I am the dean of the University of Baltimore School of Law. Thank you for the opportunity to testify at this hearing entitled “Exploring Federal Diversity Jurisdiction.”

The subject of today’s hearing is technical, complex, little-understood by the general public, and yet fundamental to the administration of justice in this country. Federal diversity jurisdiction touches on profound questions of federalism, state sovereignty and the proper functioning of the federal courts.

Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, Michael Heise, Martin T. Wells

Cornell Law Faculty Publications

Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg’s analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff’s success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff’s decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff’s decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that …