Civil Procedure Commons^™

Summary Of Frei V. Goodsell, 129 Nev. Adv. Op. 43, David Rothenberg

Nevada Supreme Court Summaries

Appeal from a district court judgment on a jury verdict in a legal malpractice action claiming issue preclusion and offering extrinsic evidence of intent regarding obligations of a trust. The Court made clear the requirements for issue preclusion and also concluded that a party cannot introduce extrinsic evidence of a testator's intent to create ambiguity or otherwise alter the plain language of the trust. The Court affirmed the district court's judgment.

Summary Of County Of Clark V. Howard Hughes Co., Llc, 129 Nev. Adv. Op. 44, David H. Rigdon

Nevada Supreme Court Summaries

Appeal from a district court order denying a motion for change of venue for a petition for judicial review of a State Board of Equalization decision regarding a property tax valuation.

Summary Of Mountain View Recreation, Inc. V. Imperial Commercial Cooking Equipment Co., 129 Nev. Adv. Op. 45, Benjamin Reitz

Nevada Supreme Court Summaries

Appeal from a district court order granting respondents’ motion to transfer venue from Nye County to Clark County. The Court reversed the district court order, concluding that the district court abused its discretion because it (1) lacked sufficient evidence in the record to support transfer under the doctrine of forum non conveniens; (2) failed to properly analyze the issues under NRS 3.100(2) and past precedent requiring Nevada counties to provide adequate courtroom facilities; and (3) failed to consider the docket congestion in Clark County before reaching its decision.

Conformity In Confusion: Applying A Common Analysis To Wikipedia-Based Jury Misconduct, Matthew Fredrickson

Washington Journal of Law, Technology & Arts

In 2012, the United States Court of Appeals for the Fourth Circuit decided United States v. Lawson, a case of first impression about a juror’s use of Wikipedia during deliberations. Had this case been decided in the 1950s, the juror’s contact with the extra-record material during deliberations would have given rise to a presumption of prejudice in favor of the party claiming he was denied a fair trial. However, in the 1980s and 1990s, the United States Supreme Court seemed to eliminate that presumption and place the burden of proving prejudice on the party seeking a new trial. As …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew J.B. Lawrence

Faculty Scholarly Works

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

Civil Procedure In Cross-Cultural Dialogue: Eurasia Context, Dmitry Maleshin, Janet Walker, Et. Al.

Conference Papers

The Idea of the book is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Culture is one of the main factors that makes civil procedure of these countries different. Therefore it …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

This year saw the United States Court of Appeals for the Eleventh Circuit set the ground rules for collateral attacks on class settlements and elaborate on the predominance requirements for class certification. The court also considered the enforceability of a, variety of arbitration provisions in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion and examined standing issues common in data security breach class actions.

Kryptonite For Cafa?, Adam N. Steinman

Faculty Scholarship

This essay — for the Review of Litigation’s symposium issue on the Class Action Fairness Act (CAFA) and accompanying panel at the 2013 annual meeting of the Association of American Law Schools — explores the tension between CAFA and the Erie doctrine. CAFA was designed to expand federal diversity jurisdiction over high-stakes state-law class actions and, thereby, allow federal judges to decide class certification pursuant to federal law. The Erie doctrine, by contrast, aims to discourage vertical forum shopping by requiring federal courts hearing state-law claims to follow state law. Put the two together, and the result could be that …

Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …

With Apologies To Paxton Blair, Peter B. Rutledge

Scholarly Works

Much has been written on the forum non conveniens doctrine, yet I nonetheless believe that recent developments in related areas still enable scholars to offer an original perspective on the subject. In this brief essay, I advance the following thesis: the forum non conveniens doctrine developed in response to a specific set of doctrines and specific social phenomena. The waning of some of those doctrines have diminished though not altogether eliminated the need for forum non conveniens, which always has had a suspect status following Erie’s declaration that there is “no federal general common law.” While it is most certainly …

Erie's International Effect: A Reply, Donald Earl Childress Iii

NULR Online

No abstract provided.

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

The Odd State Of Twiqbal Plausibility In Pleading Affirmative Defenses , William M. Janssen

Washington and Lee Law Review

No abstract provided.

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

Summary Of Brown V. Mhc Stagecoach, Llc, 129 Nev. Adv. Op. 37, Katelyn M. Franklin

Nevada Supreme Court Summaries

The Court considered Brown’s appeal from a district court’s order statistically closing her employment discrimination case against MHC Stagecoach LLC (MHC). The Court held that a form order statistically closing a case is not an appealable judgment under Nevada Rule of Appellate Procedure 3A(b)(1).

Summary Of Chapman V. Deutsche Bank Nat'l Trust Co., 129 Nev. Adv. Op. 34, Timothy A. Wiseman

Nevada Supreme Court Summaries

The Court considered whether a quiet title action was characterized as in personam, in rem, or quasi in rem. The Court also considered whether an action for unlawful detainer was characterized as in personam, in rem, or quasi in rem.

Book Review: Errol Morris, “A Wilderness Of Error”: Provocative But Unpersuasive, Richard C. Cahn

Touro Law Review

No abstract provided.

A Barrier To Child Welfare Reform: The Supreme Court’S Flexible Approach To Federal Rule Of Civil Procedure 60(B)(5) And Granting Relief To States In Institutional Reform Litigation, Rachel Dunnington

Seattle University Law Review

In a recent decision, Horne v. Flores, the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation’s most vulnerable citizens. This Note will discuss Horne’s impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as …

The Scope Of Discovery Of Legal Ethics In Class Action Litigation, Bernard W. Freedman

Pepperdine Law Review

No abstract provided.

Book Reviews, James D. Mcgoldrick, Charles I. Nelson

Pepperdine Law Review

No abstract provided.

Summary Of Sylver V. Regents Bank, N.A., 129 Nev. Adv. Op. 30, Kelli Michelle Devaney

Nevada Supreme Court Summaries

Consolidated appeals from a district court order confirming an arbitration award and an amended judgment and order of sale, in which the Court considered two issues: (1) whether an arbitration awards was obtained through undue means and (2) whether the arbitrator’s refusal to void a loan in the underlying dispute constituted a manifest disregard for the law.

Marco V. Doherty: Forcing An Agency To Play By Its Own Rules: Administrative Res Judicata, Matt Bove

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

When Dicta Attacks: Elliott V. Commodity Futures Trading Commission, Joanna E. Barnes

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Adjudications By Administrative Law Judges Pursuant To The Social Security Act Are Adjudications Pursuant To The Administrative Procedure Act , Robin J. Arzt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Parental Kidnapping Prevention Act: Thirty Years Later And Of No Effect? Where Can The Unwed Father Turn?, Rebecca Miller

Pepperdine Law Review

In 1980, the federal government passed the Parental Kidnapping Prevention Act (PKPA), designed to prevent parents from attempting to “forum shop” to gain an advantage in custody disputes. A recent Utah Supreme Court decision held that jurisdiction challenges under the PKPA are waived if not raised in the lower court. This Article argues that this decision runs counter to the purpose behind the PKPA and sets a dangerous precedent. It calls for the Supreme Court to interpret the ambiguous provisions of the PKPA to resolve inconsistent rulings and protect the rights of unwed fathers.

The Damage Is Done: Ordering A New Trial Based Only On Damages, Katherine Kubale, Richard Bales

Pepperdine Law Review

Federal Rule of Civil Procedure 59(a) allows trial courts to grant new trials to any or all of the parties, on any or all of the issues, including damages. However, the federal circuits are split on how to handle new trials based solely on damages. One croup of circuits grants partial new trials on damages alone only if the erroneous damage amount did not in any way affect the determination of any other issue. Under this standard, a new trial on damages is allowed when the second jury can evaluate the first damage award without also re-examining other issues, such …