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Articles 3151 - 3180 of 6649

Full-Text Articles in Civil Procedure

Should New York Courts Hear Certified Questions From The Securities And Exchange Commission?, Verity Winship Apr 2009

Should New York Courts Hear Certified Questions From The Securities And Exchange Commission?, Verity Winship

Pace Law Review

No abstract provided.

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The Partially Prudential Doctrine Of Mootness, Matthew I. Hall Apr 2009

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Scholarly Works

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …

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Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah J. Challener, John B. Howell Iii Mar 2009

Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah J. Challener, John B. Howell Iii

NULR Online

No abstract provided.

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Substantive Due Process Rediscovered: The Rise And Fall Of Liberty Of Contract, David N. Mayer Mar 2009

Substantive Due Process Rediscovered: The Rise And Fall Of Liberty Of Contract, David N. Mayer

Mercer Law Review

Perhaps no aspect of modem American constitutional law is as misunderstood as so-called substantive due process, and no period in American constitutional history is as misunderstood as the early twentieth century, when the United States Supreme Court applied the Due Process Clauses of the Constitution substantively to protect a right known as "liberty of contract." For a forty-year period known as the "Lochner Era" for its best-known Supreme Court decision, the Court declared unconstitutional a variety of state and federal laws that abridged a fundamental right of "liberty of contract" protected under the Due Process Clauses of the Fifth …

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What Is Specific About Specific Restitution, Colleen P. Murphy Mar 2009

What Is Specific About Specific Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

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Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. 6, Daniel M. Ryan Feb 2009

Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. 6, Daniel M. Ryan

Nevada Supreme Court Summaries

This case pertained to a contracts action. Appellants appealed the district court’s decision to strike the appellants’ pleadings and enter a default judgment against them as a discovery sanction, as well as the district court’s decision to award compensatory damages and attorney and special master fees to the appellees

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Electronically Stored Information: Balancing Free Discovery With Limits On Abuse, Patricia Groot Feb 2009

Electronically Stored Information: Balancing Free Discovery With Limits On Abuse, Patricia Groot

Duke Law & Technology Review

The Federal Rules of Civil Procedure (the Rules) have long sought to limit abuses that developed under the traditional presumption favoring free discovery. The 2006 amendments to the Rules are specifically aimed at curbing abuses associated with electronically stored information (ESI), which has become the basic medium of business communications and has provided businesses with overall productivity benefits. The 2006 amendments introduce a new category of electronic evidence that is "not reasonably accessible" and allow a court to shift the related costs of discovery to the party requesting the information. Cost-shifting, however, creates an incentive for businesses to shelter sensitive …

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Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer Jan 2009

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Scholarly Articles

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states. This limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …

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Understanding Pleading Doctrine, A. Benjamin Spencer Jan 2009

Understanding Pleading Doctrine, A. Benjamin Spencer

Scholarly Articles

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has been illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

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Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Jan 2009

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Cornell Law Faculty Publications

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.

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Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala Jan 2009

Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

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The Death Of The American Trial, Robert P. Burns Jan 2009

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

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Personal Jurisdiction As A Defense To The Enforcement Of Foreign Arbitral Awards, Ronald R. Darbee Jan 2009

Personal Jurisdiction As A Defense To The Enforcement Of Foreign Arbitral Awards, Ronald R. Darbee

McGeorge Law Review

No abstract provided.

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Lessons From The Special Court For Sierra Leone On The Prosecution Of Gender-Based Crimes, Valerie Oosterveld Jan 2009

Lessons From The Special Court For Sierra Leone On The Prosecution Of Gender-Based Crimes, Valerie Oosterveld

Law Publications

No abstract provided.

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When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano Jan 2009

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

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Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi Jan 2009

Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi

UIC Law Review

No abstract provided.

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Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes Jan 2009

Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes

Cleveland State Law Review

This Note will demonstrate that a modified Federal Rule is the best rule for voluntary dismissal. First, this Note will survey the history of voluntary dismissal and the progression from the common law in England to the current Federal Rule. Second, this Note will discuss the abuses of the rule in Ohio and the need for change. Third, this Note will dissect the Ohio Rule and compare it alongside the Federal Rule. Fourth, this Note will examine possible alternatives. Finally, this Note will propose why a modification of the Federal Rule is the most practical answer to the abuses of …

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Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein Jan 2009

Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein

Faculty Scholarship

Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge …

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Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe Jan 2009

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery …

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Civil Procedure In Idaho: An Examination Of Significant Differences Between The Rules Of Procedure Of The Idaho State And Federal Courts, Katie Ball Jan 2009

Civil Procedure In Idaho: An Examination Of Significant Differences Between The Rules Of Procedure Of The Idaho State And Federal Courts, Katie Ball

Articles

The University of Idaho College of Law celebrates its centennial this year. The rules of civil procedure do not have that lengthy a history, but they are still a critical part of current legal education and any civil practice. Civil practitioners choosing an Idaho forum have two court system options for many types of cases-the federal courts or the state courts. The goal of this article is to point out the significant differences in the state and federal civil procedural rules for Idaho practitioners. It is meant to particularly address those Idaho attorneys who have practiced primarily or exclusively in …

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It's (Not) Bad, It's (Not) Bad, You Know It: The Growing Acceptance Of The Fake Bad Scale, Stephen R. Chuk Jan 2009

It's (Not) Bad, It's (Not) Bad, You Know It: The Growing Acceptance Of The Fake Bad Scale, Stephen R. Chuk

Villanova Law Review (1956 - )

No abstract provided.

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En Defensa De La Solidaridad: Comentarios Sobre La Propuesta Eliminacion De La Responsabilidad Solidaria En La Relacion Extraconctracual, 78 Rev. Jur. U.P.R. 745 (2009), Alberto Bernabe, Jose Julian Alvarez Gonzalez Jan 2009

En Defensa De La Solidaridad: Comentarios Sobre La Propuesta Eliminacion De La Responsabilidad Solidaria En La Relacion Extraconctracual, 78 Rev. Jur. U.P.R. 745 (2009), Alberto Bernabe, Jose Julian Alvarez Gonzalez

UIC Law Open Access Faculty Scholarship

No abstract provided.

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The Moral Plausibility Of Contract: Using The Covenant Of Good Faith To Prevent Resident Physician Fatigue-Related Medical Errors, 48 U. Louisville L. Rev. 265 (2009), Samuel Vincent Jones Jan 2009

The Moral Plausibility Of Contract: Using The Covenant Of Good Faith To Prevent Resident Physician Fatigue-Related Medical Errors, 48 U. Louisville L. Rev. 265 (2009), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

No abstract provided.

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Bull’S-Eye View Of Cooperation In Discovery, Steven S. Gensler Jan 2009

Bull’S-Eye View Of Cooperation In Discovery, Steven S. Gensler

Faculty Articles

No abstract provided.

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Assuring Consistency And Uniformity Of Precedent And Legal Doctrine In The Areas Of Subject Matter Jurisdiction Entrusted Exclusively To The U.S. Court Of Appeals For The Federal Circuit: A View From The Top A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Foreword, Paul R. Michel Jan 2009

Assuring Consistency And Uniformity Of Precedent And Legal Doctrine In The Areas Of Subject Matter Jurisdiction Entrusted Exclusively To The U.S. Court Of Appeals For The Federal Circuit: A View From The Top A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Foreword, Paul R. Michel

American University Law Review

No abstract provided.

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State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker Jan 2009

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker

Georgia Law Review

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a "class-of-one"equal protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This Article proposes another basis on …

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Statutory Standing And The Tyranny Of Labels, Radha A. Pathak Jan 2009

Statutory Standing And The Tyranny Of Labels, Radha A. Pathak

Oklahoma Law Review

Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …

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Upping The Ante: Collective Litigation In Latin America, Ángel Oquendo Jan 2009

Upping The Ante: Collective Litigation In Latin America, Ángel Oquendo

Faculty Articles and Papers

This work contends that Latin America has launched a true revolution on collective rights: moving beyond the paradigm of group entitlements, which concern a determinate — though potentially enormous — collectivity, to that of diffuse entitlements, which generally pertain to society as a whole. Latin American jurisdictions have created innovative procedural mechanisms in this area: the collective writ of protection for the realization of group rights, the popular action for the civic vindication of diffuse entitlements, and the public civil action for the official enforcement of both kinds of rights. The U.S. legal order has much to learn from a …

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Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii Jan 2009

Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii

Journal Articles

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio. We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims. Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them. After establishing that Cohill remands are not subject-matter jurisdictional and …

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Personal Jurisdiction On Internet Activities: Oldfield V. Pueblo De Bahia Lora, S.A.—The Eleventh Circuit Finally Discusses Zippo But Leaves Lower Courts Needing More Guidance, Judy Ann Clausen Jan 2009

Personal Jurisdiction On Internet Activities: Oldfield V. Pueblo De Bahia Lora, S.A.—The Eleventh Circuit Finally Discusses Zippo But Leaves Lower Courts Needing More Guidance, Judy Ann Clausen

UF Law Faculty Publications

More than a decade ago, the most widely embraced test for determining whether a nonresident defendant's Internet presence satisfied the minimum contacts requirement of due process emerged in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. After Zippo, the nation's courts have largely used the Zippo sliding scale to determine whether a nonresident defendant's Internet conduct subjects the defendant to personal jurisdiction in the forum where a plaintiff encounters the Internet activities. Until Oldfield v. Pueblo De Bahia Lora, S.A. in 2009, the United States Court of Appeals for the Eleventh Circuit had not directly addressed Internet presence …

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