Courts Commons^™

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

Faculty Publications

No abstract provided.

Contemplating The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuation of the series of essays analyzing and documenting federal civil justice reform, this essay first provides an update on developments in civil justice reform nationally and in the United States District Court of Montana (Montana District). The essay then stresses the continuing work of the Ninth Circuit District Local Rules Review Committee and additional issues relating to case assignments in the Montana District. Finally, the essay takes a glimpse into the future.

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer

Michigan Law Review

The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant - and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule's purpose - what it is intended to accomplish.This paper examines briefly the purposes for which the …

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this.

Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.”

A close reading reveals …

Studying Deck Chairs On The Titanic, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper

Articles

Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Articl e he identifis three potential "big changes" to the Rule. subsantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee's draf4 Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests …

Shopping For A Venue: The Need For More Limits On Choice, Kimberly Jade Norwood

Scholarship@WashULaw

In an earlier article, Professor Norwood questioned the wisdom of the Supreme Court's decision in Ferens v. John Deere Co., which allows plaintiffs to double forum-shop, i.e., to file a lawsuit in one jurisdiction and then, while retaining the advantages of that jurisdiction's laws, to transfer the lawsuit to the geographically preferred jurisdiction. There, Professor Norwood assumed that having choices about where to file lawsuits was a necessary component of America's judicial system. Below, however, Professor Norwood explores that assumption and concludes that parties should not have the unrestricted choices seemingly provided by most venue laws.

In-Kind Class Action Settlements, Scott R. Peppet

Publications

No abstract provided.

The Civil Justice Reform Act Amendment Act Of 1995, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Four members of the Senate Judiciary Committee introduced the Civil Justice Reform Act Amendment Act of 1995 on February 23, 1995 as Congress was considering numerous aspects of the Contract With America, most relevantly the legal reforms in its ninth tenet. Senator Orrin Hatch (R-Utah), Chair of the Senate Judiciary Committee, Senator Charles Grassley (RIowa), Chair of the Subcommittee on Courts and Administrative Practice, Senator Joseph Biden (D-Del.), the ranking minority member of the Senate Judiciary Committee, and Senator Howell Heflin (D-Ala.), former Chair of the Courts and Administrative Practice Subcommittee, sponsored the legislation. Passage of the proposal by the …

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

Scholarly Works

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

The Ali's Complex Litigation Project And Federal-To-State Consolidation: A Due Process Analysis Of Granting To State Courts Nationwide Personal Jurisdiction, Deborah Dunn

BYU Law Review

No abstract provided.

Arthur Miller's Death Of A Doctrine Or Will The Federal Courts Abstain From Abstaining? The Complex Litigation Recommendations' Impact On The Abstention Doctrine, William A. Calhoun Ii

BYU Law Review

No abstract provided.

The Sky Is Falling-The Ali's Efficient Response To Courts In Crisis?, Christine Gail Clark

BYU Law Review

No abstract provided.

The Fragmentation Of Federal Rules, Erwin Chemerinsky, Barry Friedman

Mercer Law Review

In 1938, the Federal Rules of Civil Procedure were adopted. Their adoption represented a triumph of uniformity over localism. The lengthy debate that prefaced the adoption of the rules focused upon the value of a national set of rules, as opposed to the then-governing practice of "conformity," in which local federal practice mirrored that of the state in which the federal courts sat. Although many different arguments were offered in favor of the federal rules, at bottom the rules' proponents carried the day by arguing that procedure ought to be the same across the federal courts and the cases those …

Suggestions For Circuit Court Review Of Local Procedures, Carl Tobias

Washington and Lee Law Review

No abstract provided.

Common Sense And Other Legal Reforms, Carl W. Tobias

Law Faculty Publications

Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.

The bill's enactment, therefore, could additionally complicate the …

Lesnick V. Hollingsworth & Vose Co. - The Pure Stream Of Commerce No Longer Flows Through The Fourth Circuit, Lori Elizabeth Jones

University of Richmond Law Review

Personal jurisdiction over nonresidents in a forum state has been problematic in our federal system for quite some time. Today, in order to establish personal jurisdiction over a nonresident defendant, the nonresident must have minimum contacts with the forum state. While the test may be stated succinctly, determining whether a person or corporation has minimum contacts with the forum state is an extremely complex process, as seen in the line of personal jurisdiction cases following International Shoe Co. v. Washington.

Extending The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

The passage of the Judicial Amendments act of 1994 postponed several key implementation deadlines prescribed by the Civil Justice Reform Act (CJRA) of 1990. Perhaps most significantly, the new legislation extends for one year the mid-1995 date when the RAND Corporation, which is studying ten pilot districts' experimentation with cost and delay reduction procedures, must submit its conclusions to the Judicial Conference of the United States. Numerous compelling arguments supported congressional postponement of this deadline. Most importantly, the RAND Corporation can now capture much additional data, which are critical to assessing accurately the procedures' effectiveness in decreasing expense and delay, …

Re-Evaluating Federal Civil Justice Reform In Montana,, Carl W. Tobias

Law Faculty Publications

Part I of this piece initially affords an update of relevant developments relating to civil justice reform nationally and in the Montana Federal District Court. It emphasizes the congressional decision to extend the deadlines governing analysis of experimentation in the pilot districts and recent developments that led the Montana district to delay the preparation of a written annual assessment. Part II of this paper then glances into the future.

Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel

UF Law Faculty Publications

Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether?

This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide "right answers" to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for …

Perceptions Of Civil Justice: The Litigation Crisis Attitudes Of Civil Jurors, Valerie P. Hans, William S. Lofquist

Cornell Law Faculty Publications

Public perceptions that the civil justice system is in crisis are apparently widespread, but little is known about the causes or correlates of such views. This article analyzes the litigation crisis attitudes of a sample of civil jurors. Like the public, jurors endorsed a number of statements suggesting that there is a litigation crisis. Factor analysis identified two independent components: general concern over excessive litigation, and criticism of the civil jury. Litigation crisis views were found in all demographic and attitudinal subgroups. However, attitudes about the civil justice system were related to the respondent's political efficacy, claims consciousness, belief in …

Improving The 1988 And 1990 Judicial Improvements Acts, Carl W. Tobias

Law Faculty Publications

In this article, Professor Tobias analyzes and attempts to harmonize the conflicting frameworks for civil procedure reform embodied in the Civil Justice Reform Act of 1990 (CJRA) and its immediate predecessor, the Judicial Improvements and Access to Justice Act of 1988 (JIA). Congress intended the JIA to open the national and local rulemaking processes to public scrutiny and to decrease the use of local rules. Yet Professor Tobias finds the 1990 Act at odds with the earlier measure in several ways. By encouraging local experiments aimed at reducing litigation costs and delay, he argues, the CJRA shifted the locus of …

Limitation Of Legal Malpractice Actions: Defining Actual Injury And The Problem Of Simultaneous Litigation, Tyler T. Ochoa, Andrew Wilstrich

Faculty Publications

In this article, we will first review the development of the "actual injury" tolling provision in California, from its judicial adoption in 1971 to its legislative adoption in 1977. Second, we will explore the policies underlying the legal malpractice statute of limitation and the countervailing policies that may make delayed accrual or tolling desirable in situations involving simultaneous litigation. Third, we will examine case law applying the "actual injury" tolling provision to various fact situations and analyze potential legal solutions to the problem of defining "actual injury," including the doctrine of equitable tolling. Finally, we will demonstrate how the doctrine …

Fractured Procedure: The Civil Justice Reform Act Of 1990, Lauren K. Robel

Articles by Maurer Faculty

Federal district courts have viewed the Civil Justice Reform Act of 1990 as a mandate to adopt procedural rules inconsistent with existing law. But in this article, Professor Robel argues that the Act neither compels nor authorizes such local deviations. Citing examples from reforms underway in district courts nationwide, Professor Robel contends that courts' assertions of broad rulemaking authority rest on a misreading of the Act and of the compromise between Congress and the judiciary that led to its passage. Professor Robel cautions that the goal of national uniformity underlying the Federal Rules of Civil Procedure should not be compromised …

28 U.S.C. § 1658: A Limitation Period With Real Limitations, Kimberly Jade Norwood

Scholarship@WashULaw

Several centuries from now, when archaeologists have unearthed a copy of the Federal Reporter and turned it over to legal historians for study and analysis, our descendants will be puzzled to discover that a society in which judicial resources were such a scarce "commodity" expended so much of that "commodity" searching its state codes for "analogous" limitation periods. I doubt very much that, at least in this regard, our priorities will command much admiration.

Fixing the statute of limitation for a particular cause of action is a legislative function. Indeed, it is not a particularly difficult or complex legislative function. …

Jurors' Views Of Civil Lawyers: Implications For Courtroom Communication, Valerie P. Hans, Krista Sweigart

Cornell Law Faculty Publications

In courtroom communication, lawyers play a key role. During presentations of opening statements and closing arguments, and through examination and cross-examination of witnesses, lawyers communicate the merits of the case that the jury is to decide. Yet there is surprisingly little systematic information about how jurors perceive lawyers' communication activities. This Article presents new information based upon an interview study with civil jurors about how jurors view and evaluate attorneys and their courtroom behavior. The results of this study are used to make recommendations about enhancing the effectiveness of lawyers' communications.

A New Antidote For An Opponent's Pretrial Discovery Misconduct: Treating The Misconduct At Trial As An Admission By Conduct Of The Weakness Of The Opponent's Case, Edward J. Imwinkelried

BYU Law Review

No abstract provided.