Civil Procedure Commons^™

Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …

Litigation, Reform, And The Opioid Crisis: From Mdl To Bankruptcy, Abbe R. Gluck

Touro Law Review

Can bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative …

Defining Arbitration, Jill I. Gross

Cardozo Journal of Conflict Resolution

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts’ inconsistent and unpredictable application of the FAA’s regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

Beyond The Bench: Historical Injustices And Future Pathways For Florida’S Family Court, David J. Blum

Honors Undergraduate Theses

This thesis examines systemic inequities in Florida’s family law system, focusing on how legal doctrines, discretionary practices, and enforcement patterns disadvantage unwed and noncustodial fathers. Drawing on statutory analysis, case law, empirical studies, and psychological research, it evaluates several reforms designed to promote fairness while protecting child welfare. These include mandatory paternity testing at birth, a rebuttable presumption of equal custody, stronger enforcement of visitation orders, equitable tax restructuring, and improved training for legal professionals. Current Voluntary Acknowledgment of Paternity (VAP) procedures often create binding obligations without confirming biological parentage, resulting in long-term emotional, legal, and financial consequences. Research shows …

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Rules And Laws For Civil Actions 2026, Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Beleaguered Sovereign: Judicial Restraints On Public Enforcement, Luke P. Norris, Helen Hershkoff

Law Faculty Publications

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well-acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly minted “major questions” doctrine, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Notice Pleading’S Quiet Return, Alexander A. Reinert

Articles

Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” Commentators expressed alarm, predicting that the new standard …

The Jury Does Not Always Need Help From Lay Opinion Witnesses, Taurus Myhand

Scholarly Works

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some …

When The “Attorney Work Product” Is A New Baby: The Case For Parental-Leave Continuance Rules, Michelle Browning Coughlin

Lewis & Clark Law Review

Parental-Leave Continuance Rules (PLCRs) are gender-neutral procedural rules that provide specific frameworks to courts for granting requests for a continuance of a scheduled legal proceeding or deadline if a necessary counsel is unavailable because they or their parenting partner will be experiencing a birth, adoption, or foster placement of a child. Existing laws protecting parental leave in the United States are tied to employment; and since courts are not generally the employers of attorneys appearing before them, they are not obligated to honor an attorney’s parental leave when scheduling a trial or other legal proceeding. While continuances are granted in …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

Across The Aggregation-Entity Divide: Personal Jurisdiction, Standing, And The Nature Of The Class Action, Charles Hill

University of Cincinnati Law Review

No abstract provided.

Challenging The Juridical Link: Standing, Class Actions, And Article Iii's Limitations, Sebastian W. Johnson

University of Cincinnati Law Review

No abstract provided.

The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw

Maine Law Review

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …

Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont

Maine Law Review

In recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a "doctor's workshop," providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today's hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized …

In Defense Of Civil Juries, Peter W. Culley

Maine Law Review

Criticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that "[t]he civil jury system has outlived its usefulness." In support of his basic premise that the civil jury system is merely an historical …

The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon

Maine Law Review

On four separate occasions between December 1981 and February 1982, the Maine Supreme Judicial Court called into question the continued vitality of the common law doctrine of punitive damages. The substantive propriety of punitive damages was not challenged by any of the defendants in those four cases. As a result, the Law Court assumed for the purposes of each opinion that punitive damages could be awarded by a court "in some instances without explicit statutory authorization." Nevertheless, in a footnote to Braley v. Berkshire Mutual Insurance Co., the court challenged this assumption. Noting that the doctrine of punitive damages initially …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Who Should Recover For Loss Of Consortium?, Martin S. Amick

Maine Law Review

For more than three centuries courts have recognized a husband's right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of "spousal" consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably …

Probate Standing, David Horton

Michigan Law Review

Few topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives.

Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in …

Stacked Recovery Under Maine's Uninsured Motorists Statute: Connolly V. Royal Globe Insurance Company, Edward R. Benjamin Jr.

Maine Law Review

Foremost among the problems of automobile travel facing state legislatures may be that of ensuring adequate compensation for injuries and deaths suffered in traffic accidents. Frequently an injured party wins an award of damages against a negligent motorist, only to find the negligent party unable to meet the financial burden which the judgment imposes. The injured party, though innocent of any wrongdoing, may receive little or no compensation for injuries suffered. State legislatures have attempted to prevent such situations by enacting mandatory liability insurance laws, creating victim compensation funds, or requiring uninsured motorist coverage. Inherent weaknesses exist, however, in both …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

The Federal Civil Rules After Half A Century, Maurice Rosenberg

Maine Law Review

The name Gignoux is not exactly a household word among the lay citizens of this country and would not qualify as one even if we count all the varied pronunciations people choose to accord it. Indeed, there are probably quite a few members of the bar who do not recognize the name or know anything about its bearer's works. That is their loss. Edward T. Gignoux has been doing so much for the betterment of justice in this country in so many ways and for so many years that he has clearly earned a place of high honor in the …