Civil Procedure Commons^™

Is Legality Political?, Frederick Schauer

William & Mary Law Review

No abstract provided.

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier

Law Faculty Scholarship

The transnational class action-a class action in which a portion of the class consists of non-US claimants-is here to stay Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the "home" courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …

Summary Of Francis V. Wynn Las Vegas, Llc, Nev. Adv. Op. No. 60, Amanda Ireland

Nevada Supreme Court Summaries

An appeal from a district court summary judgment in a contract action.

Summary Of Emerson V. Dist. Ct., 127 Nev. Adv. Op. 61, Kendra Kisling

Nevada Supreme Court Summaries

An original petition for a writ of mandamus or prohibition challenging a district court order imposing sanctions on the petitioner, an attorney.

Guide To Non-Traditional Research Resources In Conflict Resolution, Civil Discourse, And Public Deliberation And Dialogue, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Nevada Legal Research Guides / Reference Desk Guides

No abstract provided.

Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …

On Removal Jurisdiction's Unanimous Consent Requirements, Adam R. Prescott

William & Mary Law Review

No abstract provided.

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Faculty Publications

Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …

Should "Twombly" And "Iqbal" Apply To Affirmative Defenses?, Nathan Pysno

Vanderbilt Law Review

In 2007, the U.S. Supreme Court promulgated a new pleading standard in Bell Atlantic Corp. v. Twombly, specifically holding that complaints must state a claim to relief that is "plausible on its face." The Twombly decision retired the well-established and more lenient pleading regime that reigned since the Court's 1957 decision in Conley v. Gibson. Two years after Twombly, the Supreme Court confirmed in Ashcroft v. Iqbal that neither the reach of the new plausibility standard nor the death of Conley was exaggerated. "Labels and conclusions" are now insufficient, as are "naked assertions devoid of further factual enhancement" and "unadorned …

Summary Of Daane V. Dist. Ct., 127 Nev. Adv. Op. 59, Michelle Newman

Nevada Supreme Court Summaries

A writ of prohibition precluding further proceedings by Nevada’s Foreclosure Mediation Program was denied because the petitioner had an adequate remedy in the ordinary course of law.

Electronic Discovery In The Cloud, Alberto G. Araiza

Duke Law & Technology Review

Cloud Computing is poised to offer tremendous benefits to clients, including inexpensive access to seemingly limitless resources that are available instantly, anywhere. To prepare for the shift from computing environments dependent on dedicated hardware to Cloud Computing, the Federal Rules of Discovery should be amended to provide relevant guidelines and exceptions for particular types of shared data. Meanwhile, clients should ensure that service contracts with Cloud providers include safeguards against inadvertent discoveries and mechanisms for complying with the Rules. Without these adaptations, clients will be either reluctant or unprepared to adopt Cloud Computing services, and forgo their benefits.

Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the 33rd Meeting of the German Society for Comparative Law (Gesellschaft für Rechtsvergleichung) in Trier, Germany, on September 16, 2011.

Summary Of Otak Nevada, Llc V. Dist. Ct., 127 Nev. Adv. Op. No. 53, Jason Wallace

Nevada Supreme Court Summaries

Petition for writ of mandamus challenging the Eighth Judicial District Court’s orders that pleadings alleging nonresidential construction malpractice, initially filed without attorney affidavits and expert reports, were valid under NRS 11.258.

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Michigan Journal of Race and Law

Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …

Tangible "Intangibles" And Other Mysteries: A Critique Of The D.C. Circuit's Expansion Of Work Product Doctrine In United States V. Deloitte Llp, Brian L. Blaylock

Nevada Law Journal

No abstract provided.

Shielding Hippocrates: Nevada's Expanded Pleading Standard For Medical Malpractice Actions And The Need For Legislative Reform, Justin Shiroff

Nevada Law Journal

No abstract provided.

Younger Abstention And Its Aftermath: An Empricial Perspective, Joshua G. Urquhart

Nevada Law Journal

No abstract provided.

13th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2011, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Summary Of Lvmpd V. Coregis Insurance Co., 127 Nev. Adv. Op. No. 47, Charles Gianelloni

Nevada Supreme Court Summaries

Consolidated appeals from a district court summary judgment in an insurance action and from a post-judgment order denying an NRCP 60(b) motion.

Summary Of Hawkins V. State, 127 Nev. Adv. Op. No. 50, Christopher Scott Connell

Nevada Supreme Court Summaries

Appeal from a District Court judgment of conviction, by way of a jury verdict, of conspiracy to violate the Uniform Controlled Substances Act.

Summary Of Roethlisberger V. Mcnulty, 127 Nev. Adv. Op. No. 48, Michael Roche

Nevada Supreme Court Summaries

Appeal from a district court order denying a motion for a change of venue in a tort action.

Civil Procedure’S Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Working Papers

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 am championing 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 …

Summary Of Costello V. Casler, 127 Nev. Adv. Op. No. 36, Danielle Woodrum

Nevada Supreme Court Summaries

An appeal from a district court summary judgment in a tort action where the defendant was deceased prior to the filing of the complaint and the statute of limitations had run before the decedent’s estate could be added to the complaint.

Summary Of Pasillas V. Hsbc Bank Usa, Et. Al., 127 Nev. Adv. Op. No. 39, Meredith Still

Nevada Supreme Court Summaries

An appeal from a district court order denying a petition for judicial review arising in a foreclosure mediation action.

Live Hearings And Paper Trials, Emily Spottswood

Scholarly Publications

This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

The Repressible Myth Of Shady Grove, Kevin M. Clermont

Cornell Law Faculty Publications

This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Journal Articles

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …

Stolen Art, Looted Antiquities, And The Insurable Interest Requirement, Robert L. Tucker

Akron Law Faculty Publications

Trafficking in stolen art and looted antiquities is a multi-billion dollar enterprise. Stolen art and looted antiquities are ultimately sold to museums or private collectors. Sometimes the purchasers acquire them in good faith. But other times, the purchasers know, suspect, or willfully blind themselves to the possibility that the piece was stolen or illegally excavated and exported up the chain of title.

This problem is compounded by customs and course of dealing in the art and antiquities trade. Dealers generally decline to provide meaningful information to prospective purchasers about the provenance of a piece, and sophisticated purchasers customarily acquiesce in …

Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal

Scholarly Works

This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and …