Civil Procedure | Open Access Articles | Digital Commons Network™

Cleaning Up Jurisdiction: Divining Congressional Intent Of Clean Air Act Section 307(B), Kevin O. Leske

Faculty Scholarship

No abstract provided.

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The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

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The Issue Class, Joseph Seiner

Faculty Publications

In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment …

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Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with …

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The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in …

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Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

The amici curiae are law professors who teach and write on civil procedure and/or patent law and policy. As such, amici are interested in the effective functioning of the courts and the patent system in general. Amici believe that this Court’s rigid rule restricting personal jurisdiction in patent declaratory judgment actions both flouts Supreme Court precedent and frustrates the public policy of clearing invalid patents. Although amici hold different views on other aspects of modern patent law and policy, they are united in their professional opinion that this Court should overturn its inflexible jurisdictional rule.

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Constraining Minnesota's Hip-Pocket Regime: Too Much Or Not Enough? (Or Both?) (Or Neither?), Joe Muchlinski

William Mitchell Law Review

No abstract provided.

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Diverging Paths: The Minnesota Supreme Court’S Decision To Reject The “Plausibility” Pleading Standard In Walsh V. U.S. Bank, Michael Sheran

William Mitchell Law Review

No abstract provided.

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The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

Faculty Articles

For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common …

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Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

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More Uncertainty After Daimler Ag V. Bauman: A Response To Professors Cornett And Hoffheimer, Deborah Challener

Journal Articles

In Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, Professors Judy M. Cornett and Michael H. Hoffheimer identify a number of legal issues that will become the focus of litigation after Daimler. This Response identifies an additional, perhaps surprising issue that is currently being litigated in the wake of Daimler AG v. Bauman. In the lower federal courts, defendants who have litigated cases on the merits without raising lack of personal jurisdiction as a defense are filing motions to dismiss and arguing that they are not subject to general jurisdiction in the forum under Daimler’s “at home” …

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The Award Of E-Discovery Costs To The Prevailing Party: An Analog Solution In A Digital World, Steven Baicker-Mckee

Cleveland State Law Review

Against this backdrop of the spiraling cost and burden of the discovery process, an issue is percolating through the lower and intermediate courts—the recoverability of e-discovery expenses as a component of the costs awarded to the successful party under Rule 54(d). Two divergent approaches have emerged in the judicial opinions and in the limited scholarship addressing the application of Rule 54(d) to e-discovery costs. The first contingent contends that Rule 54(d) is only intended to reimburse the prevailing party for a small subset of the total costs that the party has incurred. These jurists and scholars reason that Congressional intent …

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Who Wins Residential Property Tax Appeals?, Randall K. Johnson

Faculty Works

This article explains who wins residential property tax appeals in Cook County, Illinois. It does so by collecting and combining public sector data, which has been recently released by the Cook County Assessor. The article then uses this data to compute three statistics. Lastly, it contextualizes each statistic in order to determine if some townships, or groups of townships, win more appeals than expected.

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Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …

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Halliburton Ii: A Loser's History, Adam C. Pritchard

Articles

The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …

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Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan

Faculty Scholarship

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

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Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Articles

This Article proceeds as follows: Part II locates MDJD suits within the broader context of the IP troll debate. It explains why attempts to define copyright trolls in terms of status—i.e., in terms of the plaintiff’s relationship to the underlying IP—are ultimately flawed and suggests a conduct-focused approach based on identifying systematic opportunism. Part II explains why MDJD lawsuits have all of the hallmarks of copyright trolling, and it explores the basic economics of MDJD litigation. It then presents empirical data documenting the astonishing rise of MDJD lawsuits over the past decade. Part III explores the role of statutory damages …

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Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …

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Fairly Pricing Guilty Pleas, Anne R. Traum

Scholarly Works

Building on Professor Andrew Taslitz’s work, this article explores how Fair Price Theory can help us analyze the fairness of guilty pleas. In Judging Jena’s D.A., Professor Taslitz used Fair Price Theory to explore how prosecutors could strive to achieve fairness and reduce the perception of racial stigma. He used Fair Price Theory to propose a system of prosecutorial ethics that takes into account racial stigma. This article considers how Fair Price Theory challenges courts to analyze guilty pleas differently, by focusing on price without relying on the agency of prosecutors. Under current doctrine, a court examines whether the …

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Deselecting Biased Juries, Scott W. Howe

Utah Law Review

Critics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted …

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Standards Of Review In Montana Appellate Courts - Documents, Jeffrey T. Renz

Faculty Journal Articles & Other Writings

This document and the three additional files set out the standards of review applicable to various cases and issues before the Montana Supreme Court. These documents explain what the various standards mean and how the appellate attorney should consider them. They also point out those few occasions when the Court has been imprecise or inconsistent in articulating the standards so that both lawyers and judges may avoid those statements. Three additional files are attached to this document. The first addresses the standards applicable to issues on appeal in civil cases. The second sets out the standards that apply to issues …

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Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter

Faculty Articles

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a …

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The Fifth Circuit In Texas V. United States Chose And Advocated The Term “Illegal Alien”, Maritza I. Reyes

Journal Publications

No abstract provided.

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Supplemental Standing For Severability, Erik R. Zimmerman

Northwestern University Law Review

The Supreme Court has recently insisted that plaintiffs must have standing for every claim that they raise. But this claim-specific approach to standing is at odds with established practice in several contexts, including rulings on the severability of statutes. Courts often permit plaintiffs to claim that statutory provisions should be invalidated pursuant to severability doctrine, without requiring that they have standing for those claims. This Article argues that existing practice for severability is a form of “supplemental standing.” Supplemental standing is analogous to supplemental jurisdiction. It allows a plaintiff with standing for one claim to raise related claims, even if …

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Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …

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Saving Charitable Settlements, Christine P. Bartholomew

Journal Articles

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …

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Does The Presumption Of Validity Matter? An Experimental Assessment, Jeremy W. Brock

University of Richmond Law Review

No abstract provided.

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The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Akron Law Faculty Publications

In the Supreme Court’s recent general jurisdiction cases, it narrowed general jurisdiction in accord with a “reasonableness” approach to jurisdiction that is consistent with International Shoe’s so-called “forward-looking” face. In the Court’s most recent specific jurisdiction case, Walden v. Fiore, the Court took steps toward assessing specific jurisdiction under a reasonableness analysis, but it ultimately reunited the antagonistic “reasonableness” and territorial power theories to impose artificial limits on specific jurisdiction. The newly narrowed general jurisdiction will not often be available as a “safety valve” to provide jurisdiction in some cases in which jurisdiction would be reasonable under the circumstances. This …

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Tort Reform And Jury Instructions, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

This article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil OUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.

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Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs

Scholarly Works

This Article unites two disparate subjects of profound interest to legal scholars. One is fraud-on-the-market, reaffirmed late last term in Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton II). Probably the most important claim in the securities litigation universe, fraud-on-the-market is the sine qua non of almost every securities class action that is filed. The other subject consists of the work of Judges Frank Easterbrook and Richard Posner, the “superstars” of the current federal appellate bench.

My purpose is several-fold: first, to show that fraud-on-the-market’s evolution, up through and culminating in Halliburton II, has been driven in significant measure …

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Full-Text Articles in Civil Procedure

Cleaning Up Jurisdiction: Divining Congressional Intent Of Clean Air Act Section 307(B), Kevin O. Leske

Faculty Scholarship

The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards

Faculty Scholarship

The Issue Class, Joseph Seiner

Faculty Publications

Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

Constraining Minnesota's Hip-Pocket Regime: Too Much Or Not Enough? (Or Both?) (Or Neither?), Joe Muchlinski

William Mitchell Law Review

Diverging Paths: The Minnesota Supreme Court’S Decision To Reject The “Plausibility” Pleading Standard In Walsh V. U.S. Bank, Michael Sheran

William Mitchell Law Review

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

Faculty Articles

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

More Uncertainty After Daimler Ag V. Bauman: A Response To Professors Cornett And Hoffheimer, Deborah Challener

Journal Articles

The Award Of E-Discovery Costs To The Prevailing Party: An Analog Solution In A Digital World, Steven Baicker-Mckee

Cleveland State Law Review

Who Wins Residential Property Tax Appeals?, Randall K. Johnson

Faculty Works

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

Halliburton Ii: A Loser's History, Adam C. Pritchard

Articles

Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan

Faculty Scholarship

Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Articles

Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

Fairly Pricing Guilty Pleas, Anne R. Traum

Scholarly Works

Deselecting Biased Juries, Scott W. Howe

Utah Law Review

Standards Of Review In Montana Appellate Courts - Documents, Jeffrey T. Renz

Faculty Journal Articles & Other Writings

Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter

Faculty Articles

The Fifth Circuit In Texas V. United States Chose And Advocated The Term “Illegal Alien”, Maritza I. Reyes

Journal Publications

Supplemental Standing For Severability, Erik R. Zimmerman

Northwestern University Law Review

Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

Saving Charitable Settlements, Christine P. Bartholomew

Journal Articles

Does The Presumption Of Validity Matter? An Experimental Assessment, Jeremy W. Brock

University of Richmond Law Review

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Akron Law Faculty Publications

Tort Reform And Jury Instructions, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs

Scholarly Works