Civil Procedure Commons^™

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

Publications

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

Recent Developments In Oklahoma Class Action Law, Jim T. Priest, Michael R. Pacewicz

Oklahoma Law Review

No abstract provided.

Expert Witness Fees As A Recoverable Item Of Costs: Recent Litigation Trends, Paul M. Kolker

Oklahoma Law Review

No abstract provided.

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

As Seen On Tv: The Normative Influence Of Syndi-Court On Contemporary Litigiousness, Kimberlianne Podlas

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

Faculty Scholarship

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson

Faculty Scholarship

It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether …

Typology Of Aggregate Settlements, A , Howard M. Erichson

Faculty Scholarship

It is odd, considering how often lawyers engage in aggregate settlements, that no one seems able to explain what "aggregate settlement" means. It is one of the most important yet least defined terms in complex litigation. Lawyers and judges talk about aggregate settlements as though it were obvious what the term signifies and as though it describes a single thing. In fact, group settlements in multiparty litigation vary significantly. And they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Beyond Zippo's Sliding Scale - The Third Circuit Clarifies Internet-Based Personal Jurisdiction Analysis, David M. Fritch

Villanova Law Review (1956 - )

No abstract provided.

Summary Of Health Plan Of Nev., Inc. V. Rainbow Medical, Llc, Matt Wagner

Nevada Supreme Court Summaries

This case was an appeal and cross-appeal dealing with Nevada’s Uniform Arbitration Act and the scope of judicial review of an arbitration award.

Summary Of Rickard V. Montgomery Ward & Co., 120 Nev. Ad. Op. 54, Amanda Yen

Nevada Supreme Court Summaries

On January 23, 1993, appellant David Rickard was involved in an incident at the Montgomery Ward store. On April 20, 1993, he filed a complaint in the Clark County District Court alleging various claims against the store. Approximately four years after the complaint was filed in court, Ward filed a chapter 11 bankruptcy proceeding with the United States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy law, Rickard’s action in the Nevada district court was stayed. On August 25, 1998, Rickard filed a motion for relief from stay in order to further his action against Ward. …

Summary Of State, Div. Child & Family Servs. V. Dist. Ct., 120 Nev. Adv. Rep. 50, Shane Jasmine Young

Nevada Supreme Court Summaries

The State sought a writ of mandamus or prohibition challenging the district court’s oral contempt order and sanctions.

More Proposals To Simplify Modern Federal Procedure, Carl W. Tobias

Law Faculty Publications

Response to Edward H. Cooper, Simplified Rules of Federal Procedure1, 100 Mich. L. Rev. 1794 (2002)

The Ethics Of Delaying Persecution, Lisa A. Dolak

American University Law Review

No abstract provided.

Child Custody Disputes: Bridging The Gap Between Psychologists And Family Court, Kate Pratsides

Theses : Honours

The number of divorce cases that come before judges and registrars within the Family Court system is steadily increasing, and so is the use of psychologists as expert witnesses. However, little is known about what the judges and registrars think of the psychologist's use of psychometric test results when writing their forensic report, this study attempts to answer that. This thesis is presented in two sections. The first is a literature review of guidelines that are available to psychologists when writing a forensic report. These guidelines include (1) broad guidelines provided by professional associations, such as the American Psychological Association; …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

The Integration Of Law And Fact In An Uncharted Parallel Procedural Universe, Thomas O. Main

Scholarly Works

No abstract provided.

Special Needs And Special Deference: Suspicionless Civil Searches In The Modern Regulatory State, Fabio Arcila

Scholarly Works

This Article examines the Supreme Court’s application of the "special needs" principle, which is part of its Fourth Amendment search and seizure jurisprudence, with an emphasis on suspicionless searches. It argues that both courts and commentators have insufficiently acknowledged the tension between the modern regulatory state, which is significantly dependent upon such searches, and adequately protecting liberty interests. The commentators who criticize the Court’s deference ignore that a deferential approach can be justified. Suspicionless civil searches, for example, are not necessarily incompatible with original intent. Moreover, the many proposals for reforming suspicionless civil search jurisprudence, such as reinvigorating the individualized …

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Only Yesterday: Reflections On Rulemaking Responses To E-Discovery, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Doctrine Of Judicial Estoppel, Steve R. Johnson

Scholarly Publications

The doctrine of judicial estoppel is not on some lawyers’ radar screens. That’s regrettable. Not anticipating application of the rule, a person may make a claim that can hurt him or her in the long run. Or, unaware of the rule, a party may fail to assert a potentially successful defense. Or, having only a very general awareness of the rule, an attorney may miss subtleties or forum variations that are the difference between winning and losing.

This article has three parts. Part I describes the doctrine of judicial estoppel, emphasizing its purposes. Part II explores the recent judicial estoppel …

Introduction To The Online Colorado Litigator's Handbook, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

The Litigator's Handbook includes surveys of district court judges throughout the state with detailed questions of each judge's preferences and proscriptions for practice and procedure; answers to some questions that attorneys want to know but may be afraid to ask; and commentary that indicates the court's general level of receptiveness to particular types of requests.

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might …

Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny

Washington Law Review

In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include …

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

For Owen M. Fiss: Some Reflections On The Triumph And The Death Of Adjudication, Judith Resnik

University of Miami Law Review

No abstract provided.

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.