Civil Procedure Commons^™

"Sense Of Access To Justice" As A Framework For Civil Procedure Justice Reform: An Empirical Assessment Of Judicial Settlement Conferences In Quebec (Canada), Jean-François Roberge

Cardozo Journal of Conflict Resolution

An emerging worldwide civil procedure justice reform trend takes the user's point of view into account in order to promote access-tojustice and support for the rule of law. In the Canadian context, the Quebec civil law province has taken the lead to renew its legal culture towards a participatory justice, rooted in fair-minded processes that encourage the persons involved to play an active role. In an effort to monitor such ambitions, carried by the civil procedure code reforms of 2003 and 2014, our paper offers an empirical evaluation through the lens of litigant's "Sense of Access to Justice" ("SA"). We …

Protecting Delaware Corporate Law: Section 115 And Its Underlying Ramifications, Andrew Holt

American University Business Law Review

No abstract provided.

Recent Development: A Guy Named Moe, Llc V. Chipotle Mexican Grill Of Colo., Llc: A Foreign Limited Liability Company Lacking Compliance With State Registration Requirements May Maintain Suit After Infirmity Is Cured; The Company Must Also Meet The "Person Aggrieved" Requirement Of Standing., Alicia M. Kuhns

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a foreign limited liability company, though unregistered at the time of filing, could resolve its lack of compliance and maintain its action for judicial review. A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colo., LLC, 447 Md. 425, 447, 135 A.3d 492, 505 (2016). The court further held that one does not have standing as a “person aggrieved” based solely on the desire to eliminate business competition. Id. at 453, 135 A.3d at 508.

Internal Disciplinary Procedures – Internet And Social Media. Dilemmas Of Bilateral Relations, Adrian Berski

Reports

Nowadays, Social Media and the Internet are useful and powerful tools within society. It provides great convenience to conduct activities within the job market such as: free web advertising, talent hunting or collecting precious marketing data. However, in some cases, Social Media and the Internet can be a “bone of contention” between the employer and employee relationship.

The main purpose of this essay is to demonstrate bilateral relations between internal disciplinary procedures between Companies and the Internet – Social Media, in light of the Unfair Dismissals Acts 1977-2007. It will be presented in relation to the following determinants[1]: …

A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest, Nina A. Vershuta

Brooklyn Law Review

In civil litigation, the big business of retaining experts has raised concerns about the integrity of the adversarial process and undermined the role that expert testimony plays at trial. Due to a rising demand for expert testimony, it is common for the same expert to testify for opposing clients. When a client hires an expert who has been previously retained by that client’s adversary, a conflict of interest arises. Such experts may share confidential information with their new client to the detriment of the former client—triggering the expert disqualification test for conflicts of interest. Most state and federal courts do …

Psychological Harm And Constitutional Standing, Rachel Bayefsky

Brooklyn Law Review

When do psychological or emotional harms count as “injury-in-fact” for the purposes of satisfying Article III standing requirements, and when should they? Courts have wrestled with whether to grant standing, for example, to family members of a man killed by the police who argued that as relatives of the deceased, they had suffered emotional pain; members of an animal-welfare organization who claimed they had undergone “sleeplessness, depression, and anger” when they were unable to visit an elephant at the zoo; and members of a Catholic organization who challenged a city resolution criticizing the Catholic Church’s stance on adoption by same-sex …

The Necessary Narrowing Of General Personal Jurisdiction, William Grayson Lambert

Marquette Law Review

General personal jurisdiction allows a court to issue a binding judgment against a defendant in any case, even if the facts giving rise to the case are unrelated to that forum. In the six decades after International Shoe v. Washington, courts held that general jurisdiction existed whenever a defendant had substantial continuous and systemic contacts with the forum. This rule was narrowed significantly in 2011, however, when the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown held that general jurisdiction was properly exercised only when a defendant had sufficient contacts to be “at home” in the forum.

The Class Action As Trust, Sergio J. Campos

Articles

No abstract provided.

A Brief Survey Of The Treatment Of Electronically Stored Information By Federal Agencies, Richard Dauphinais

University of Baltimore Law Review

Discovery involving electronically stored information (ESI) in federal court litigation has been a matter of extensive discussion in the legal community. Somewhat less examined has been the treatment of ESI by federal agencies. This article takes a look at how some agencies have addressed issues related to ESI. By the late 1990s, federal court practitioners and judges had recognized that the increased use of computers was generating enormous amounts of ESI. The increase in ESI, in turn, affected litigation because it "expanded exponentially" the "universe of discoverable material." Prior to 2006, the federal courts dealt with the discovery of electronic …

Friends, Followers, Connections, Lend Me Your Ears: A New Test For Determining The Sufficiency Of Service Of Process Via Social Media, Christopher M. Finke

University of Baltimore Law Review

The emergence of social media as a driving force in modern society has brought it to the forefront of legal discussion in all areas of law. Fields of study such as evidence, ethics, and constitutional law are all currently wrestling with how social media ought to be handled. In particular, courts have attempted to determine whether service of process (or simply “service”) should be satisfied by the use of communication through social media. Since 1950, courts have relied upon the same test, regardless of the method used, to determine the sufficiency of service: the Mullane test. Mullane as currently applied, …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.

Transferred Justice: An Empirical Account Of Federal Transfers In The Wake Of Atlantic Marine, Roger Michalski

Faculty Articles

This Article presents empirical findings on motions to transfer in the wake of the Supreme Court's decision in Atlantic Marine Construction Co. Inc. v. United States District Court for the Western District of Texas. Based on an original dataset of roughly 15,500 federal transfers over three years, it traces the evolving patterns of interdistrict transfers and how doctrinal changes affect the flow of cases between districts. These patterns suggest both beneficial and troubling aspects of the federal transfer system. On the beneficial side, transfers do important work in regulating and directing the massive flow of prisoners' rights and habeas corpus …

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Commonality And The Constitution: A Framework For Federal And State Court Class Actions, Joseph A. Seiner

Indiana Law Journal

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. …

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter

Faculty Articles

No abstract provided.

Calling An End To Culling: Predictive Coding And The New Federal Rules Of Civil Procedure, Stephanie Serhan

Law Student Publications

This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents. Since the new Rules explicitly implement the concept of proportionality and a new set of standards in Rule 26, I argue that applying predictive coding at the outset is more compliant with the Federal Rules of Civil Procedure. Part II will explain the difference in timing between applying predictive coding after keyword culling or prior to it, and discuss the …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Faculty Scholarship

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting …

Cross-Cutting Conflicts: Developments In The Use Of Norwich Orders In Internet Defamation Cases, Robert Currie

Articles, Book Chapters, & Popular Press

The anonymity afforded to those wishing to post commentary on the internet has given rise to a number of procedural issues in Canadian case law. This paper focuses on one such issue: the need for prospective plaintiffs in defamation actions to "unmask" anonymous commentators in order to be able to bring proceedings against them. It tracks the increasing use of the "Norwich order," A.K.A an order for pre-action discovery, as a means of accomplishing this objective, by examining the leading case of Warman v. Fournier and analyzing how this issue has played out in litigation to date. It also considers …

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

Measuring Older Adult Confidence In The Courts And Law Enforcement, Joseph A. Hamm, Lindsey E. Wylie, Eve M. Brank

Department of Psychology: Faculty Publications

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a …

A Servile Copy: Text Reuse And Medium Data In American Civil Procedure, Kellen R. Funk, Lincoln A. Mullen

Faculty Scholarship

At the opening of the first Nevada legislature in 1861, Territorial Governor James W. Nye, a former New York lawyer, warned the assembly that it had the burden to erect a functioning government within a short legislative session. »Happily for us, a neighboring State whose interests are similar to ours, has established a code of laws« that Nye argued could »be made applicable« to Nevada. That neighboring state was California, and the California mining lawyer William Morris Stewart followed Nye’s instructions to the letter. Stewart literally cut and pasted the California Practice Act into the session bill, crossing out state …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Publications

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become, more openly, the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I champion is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true importance.

An Active Learning Approach To Teaching Tough Topics: Personal Jurisdiction As An Example, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Civil Procedure: Statutory Interpretation: Compensating For Ambiguities In The Workers' Compensation Act—Schmitz V. U.S. Steel Corp., Megan L. Odom

Mitchell Hamline Law Review

No abstract provided.