Civil Procedure Commons^™

An Exploration Of "Noneconomic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

William & Mary Law Review

No abstract provided.

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

Summary Of Gunderson V. D.R. Horton, Inc., 130 Nev. Adv. Op. 9, Michael Bowman

Nevada Supreme Court Summaries

The Court determined three issues, whether the district court abused its discretion by: (1) denying a motion for a new trial due to claims of attorney misconduct; (2) not granting sanctions under NCRP 68 and NRS 17.115 ; and/or (3) not considering apportioning sanctions.

Recent Reforms In Eu Law: Recognition And Enforcement Of Judgments, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, …

Summary Of Recontrust Co. V. Zhang, 130 Nev. Adv. Op. 1, Patrick Opdyke

Nevada Supreme Court Summaries

The Court determined whether a district court may consider an equitable subrogation claim upon remand when the district court previously resolved the case on other, later-reversed grounds, and the Supreme Court panel’s orders for remand were silent on the matter.

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Judges suffer from the same cognitive biases that afflict the rest of us. Judges use shortcuts to help them deal with the uncertainty and time pressure inherent in the judicial process. Judges should be aware of the conditions when those shortcuts lead to systemic biases in decision-making, and adjust legal standards in order to reduce or avoid such bias altogether.

One important bias that has been identified by economists and psychologists is the lock-in effect. The lock-in effect causes a decision-maker who must revisit an earlier decision to be locked-in to the earlier decision. The effect is particularly pronounced where …

Transactionalism Costs, Alan M. Trammell

Scholarly Articles

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) …

Chapter 519: Fortifying California’S Reporters’ Shield, Devina Douglas

McGeorge Law Review

No abstract provided.

Chapter 623: Giving The Wrongfully Convicted A Better Chance At Review, Natasha Machado

McGeorge Law Review

No abstract provided.

J. Mcintyre And The Global Stream Of Commerce, Frank Deale

Publications and Research

No abstract provided.

In Our Own Backyard: Why California Should Care About Habeas Corpus, Theresa Hsu Schriever

McGeorge Law Review

No abstract provided.

Waving Goodbye To Non-Waivability: The Case For Permitting Waiver Of Statutory Subject-Matter Jurisdiction Defects, Jessica Berch

McGeorge Law Review

No abstract provided.

Toil And Trouble: How The Erie Doctrine Became Structurally Incoherent (And How Congress Can Fix It), Alan M. Trammell

Scholarly Articles

The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.

This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp …

In Re Mstg And The Shifting Role Of Litigation-Related Patent Licenses In Reasonable Royalty Rate Determinations, Whitney Levandusky

Journal of Business & Technology Law

No abstract provided.

Class Actions And Justiciability, Sergio J. Campos

Articles

A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative?

This Article argues that the answer should be none of the above-it should be the class attorney. This Article first shows that the function of the class action is to assign dispositive control of, and a partial beneficial interest in, the class members' claims to the class attorney. Put …

Class Actions A Thing Of The Past … Or Are They? A Look At The Circuit Courts' Application Of Comcast V. Behrend, 48 J. Marshall L. Rev. 335 (2014), Christine Frymire

UIC Law Review

This Comment addresses recent developments in the law of class action waivers and certification. Specifically, it looks at three cases—Comcast, Concepcion, and Wal-Mart—in which the Supreme Court limited class action litigation and class arbitration. This Comment also addresses how the circuit courts are hesitant to follow the Supreme Court’s precedent.

The Professor And The Judge: Introducing First Year Students To The Law In Context, Michael B. Mushlin, Lisa Margaret Smith

Elisabeth Haub School of Law Faculty Publications

For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of …

Aggregating Defendants, Greg Reilly

Faculty Scholarship

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and Bit- Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem …

Around The World Of Securities Fraud In Eighty Motions To Dismiss, Wendy Gerwick Couture

Articles

No abstract provided.

Discovery Of Medical Records In Oklahoma State Courts, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal …

Resoling International Shoe, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman sharply restricted general jurisdiction over corporations, limiting it to a corporation’s (1) state of incorporation, (2) state of principal place of business, or (3) another state where the corporation is “essentially at home.” The Court analogized the first two categories to an individual’s domicile. The Court made clear that the third category is very small, leading Justice Sotomayor, in her opinion concurring in the judgment, to charge that the Court had made many corporations “too big for general jurisdiction.” It is noteworthy that although the Court used the …

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Tethered To The Statute: How The Third Circuit’S Narrow Interpretation Of 28 U.S.C. § 1920(4) Will Shape The Future Of Cost-Shifting And E-Discovery For The Better, Jason L. Callaway

Oklahoma Law Review

No abstract provided.

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane

Faculty Articles and Papers

No abstract provided.

Prosecutors’ Disclosure Obligations In The U.S., Bruce A. Green, Peter A. Joy

Faculty Scholarship

The article offers information on the prosecutor's discovery disclosure obligation in the U.S. Topics discussed include efforts of defense attorney in the prosecutor's disclosure obligation, efforts beyond the professional discipline, and legal enforcement to promote and support the approach of prosecutor's disclosure obligation, and collection of material used as evidence in the civil or criminal litigation.

Seeking Justice In The Empire State: Court Of Appeals Broadens The Reach Of Long Arm Jurisdiction And Clarifies The Statutory Guidelines For Application Of Cplr Section 302(A)(1), Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss developments in long-arm jurisdiction under CPLR section 302(a)(1)1 and analyze the recent New York State Court of Appeals‘s thoughtful and instructive decision in Licci ex rel. Licci v. Lebanese Canadian Bank, SAL. Licci decided the question of whether a non-domiciliary‘s maintenance of a bank account in New York constituted a “transaction of business” out of which the plaintiff‘s claims arose under the state‘s long-arm statute. The Licci plaintiffs had alleged that the defendant funded a terrorist organization responsible for the injuries and deaths of certain plaintiffs and decedents they represented. The Licci opinion did not decide …

Updating Ohio's Class Action Rules After More Than Forty Years, Geoffrey J. Ritts

Cleveland State Law Review

In 1970, the Ohio Rules of Civil Procedure made their debut. The new set of rules included Civil Rule 23, governing procedure in class actions. Like most of the new Ohio civil rules, Rule 23 closely tracked its federal counterpart, Federal Rule of Civil Procedure 23, which itself was then relatively new, having been adopted in 1966. Since 1970, Ohio’s Rule 23 has sat untouched. In the meantime, the Ohio Supreme Court has amended other civil rules more than thirty times. During the more than forty years since Ohio Rule 23 was adopted, there have been significant changes in class-action …

Civil Procedure—Reassessing Personal Jurisdiction In Arkansas And The Eighth Circuit After Goodyear Dunlop Tires Operations V. Brown, 131 S. Ct. 2846 (2011) And J. Mcintyre Machinery, Ltd. V. Nicastro, 131 S. Ct. 2780 (2011)., Kathy Mccarroll

University of Arkansas at Little Rock Law Review

No abstract provided.