Civil Procedure Commons^™

Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

Learning From Wal-Mart, Melissa Hart

Publications

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton

Scholarly Works

This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …

Cumulative Supplement To Jurisdiction In Civil Action, Wendy Collins Perdue

Law Faculty Publications

Cumulative supplement to Jurisdiction in Civil Action Third Edition.

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

The Swift, Silent Sword Hiding In The (Defense) Attorney's Arsenal: The Inefficacy Of Georgia's New Offer Of Judgment Statute As Procedural Tort Reform, Merritt E. Mcalister

Georgia Law Review

Offer of judgment provisions, initially creatures of state law but codified in 1938 as Rule 68 of the Federal Rules of Civil Procedure, are neither widely used nor widely understood. Both federal and state offer of judgment rules operate to penalize a plaintiff who fails to accept, in light of the ultimate judgment, a reasonable settlement offer. Scholars have often criticized the federal rule's minimal impact as a tool to encourage settlement, and several states, including Georgia in a recent enactment, have made efforts to create offer of judgment provisions that provide severe penalties-attorney's fees and costs-for an offeree who …

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a …

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise …

The 2000 Amendments To The Discovery Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Revitalizing Frcp 68: Can Offers Of Judgment Provide Adequate Incentives For Fair, Early Settlement Of Fee-Recovery Cases?, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Summary Of Nelson V. Heer, 121 Nev. Adv. Op. 81, Denise Balboni

Nevada Supreme Court Summaries

Motion to support a stay pending an appeal by security other than a supersedeas bond.

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

Civil Practice And Procedure, John R. Walk, Michael R. Spitzer Ii

University of Richmond Law Review

This article will summarize recent developments of interest to practitioners handling civil cases in the courts of the Commonwealth of Virginia. Specifically included are relevant decisions of the Supreme Court of Virginia dating from opinions announced on June 10, 2004 to those announced on April 22, 2005; changes to the Rules of the Supreme Court of Virginia announced during the same time period; and legislation enacted by the Virginia General Assembly at its 2005 Session, effective July 1, 2005.

Overlooked In The Tort Reform Debate: The Growth Of Erroneous Removal, Theodore Eisenberg, Trevor W. Morrison

Cornell Law Faculty Publications

Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties’ resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10 percent to about 8,900 per year. …

Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for …

The Dubious Origins And Dangers Of Clawback And Quick-Peek Agreements: An Argument Against Their Codification In The Federal Rules Of Civil Procedure, Laura Catherine Daniel

William & Mary Law Review

No abstract provided.

Summary Of Wood V. Safeway, Inc., 121 Nev. Adv. Op. 73, Michael Shalmy

Nevada Supreme Court Summaries

A mentally handicapped female working for Safeway Stores, Inc. was sexually assaulted at work by an employee of a company that provided janitorial services for Safeway. The assaults occurred in a storage room and in the parking lot while she was gathering shopping carts. She filed a complaint against Safeway and the janitorial company, Action Cleaning, alleging five causes of action as a result of the sexual assault. The district court granted summary judgment in favor of Safeway, determining that Safeway was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (the “NIIA”). The district court …

Reforming The Federal Sentencing Guidelines Misguided Approach To Real-Offense Sentencing, David Yellen

Articles

No abstract provided.

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Summary Of Whealon V. Sterling, 121 Nev. Adv. Op. 66, Jarrod Rickard

Nevada Supreme Court Summaries

Appellant agent sought review of a summary judgment from the Eighth Judicial District Court, which ruled in favor of respondent entertainer in a contract dispute.

Petition For A Writ Of Certiorari, Scott V. Johanns, No. 05-356 (U.S. Sept. 15, 2005), Scott L. Nelson, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Summary Of Szydel V. Markman, 121 Nev. Adv. Op. 47, Hagar Labouz

Nevada Supreme Court Summaries

Appellant Szydel brought a medical malpractice claim against Dr. Markman after he left a surgical needle inside her breast following a surgical procedure. Szydel and her husband filed a malpractice claim in district court and Dr. Markman moved to dismiss because the complaint was not accompanied by a medical expert’s affidavit, as required by statute. Szydel claimed that her action was filed under Nevada’s res ipsa loquitur statute and thus did not require a medical expert’s affidavit.

Summary Of Kahn V. Morse & Mowbray, 121 Nev. Adv. Op. 48, Hagar Labouz

Nevada Supreme Court Summaries

This action arises out of a business agreement between the Kahns and their son, Eric. The Kahns violated the agreement with Eric by selling their business to their other son, Frank. The Kahns hired Byrd and his firm, Morse & Mowbray, to represent them. Shortly thereafter the parties reached a settlement, and the Kahns reneged on the settlement. Eric filed an action against the Kahns for specific enforcement of the settlement and Byrd and his firm declined to contest Eric’s contentions regarding the settlement. The district court held a hearing for specific enforcement of the settlement and found that all …

7th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2005, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Jurisdiction And Merits, Howard M. Wasserman

Washington Law Review

Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …

Summary Of Lee V. Ball, 121 Nev. Adv. Op. 38, Jared R. Gibb

Nevada Supreme Court Summaries

This case involved an appeal from a district court judgment in a personal injury case, entered pursuant to a jury verdict which initially awarded the plaintiff $1,300 in damages. The plaintiff subsequently requested a new trial or, in the alternative, additur. The district court awarded the plaintiff an additur of $8,200 and prejudgment interest, without offering the defendant a new trial on damages.

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews federal appellate procedure developments in the Eleventh Circuit during the 2004 calendar yea. As is the case each year, perhaps the most important procedural matter the Eleventh Circuit Court of Appeals considered was its own federal subject matter jurisdiction and that of the district courts in the Eleventh Circuit. If a matter is within the subject matter jurisdiction of the federal courts, or the federal appellate jurisdiction of the Eleventh Circuit, then the final order rule, along with the exceptions to the final order rule, dominate the consideration of whether a decision is subject to review. The …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2004 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of evidence, civil procedure, statutory interpretation, jurisdiction, as well as other issues of interest to the trial practitioner.