Courts Commons^™

Standing Still In The Roberts Court, Jonathan H. Adler

Faculty Publications

In 2007, The New York Times reported "limiting the ability of plaintiffs to bring or appeal lawsuits" had emerged as an early "theme" of the Roberts Court. The Wall Street Journal concurred, reporting "the biggest change under Chief Justice Roberts might not involve who wins on the merits" but "who gets through the courthouse door in the first place." An early consensus is emerging... that one effect of the Roberts Court is to make it more difficult for prospective plaintiffs to have their day in federal court.

Because standing decisions are more insulated from legislative revision than other sorts of …

Sunshine In Litigation Act Of 2009: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., June 4, 2009 (Statement Of Sherman L. Cohn, Prof. Of Law, Geo. U. L. Center), Sherman L. Cohn

Testimony Before Congress

I urge that the issue before the Congress in the proposed “Sunshine in Litigation Act of 2009” is really one of social values and a choice to be made among various values and that that is a substantive matter rather than a mere matter of procedure. It is a choice among values that Congress, the legislative arm of the federal government, is charged with making and in this case should make.

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

Pace Law Review

No abstract provided.

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.

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.

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.

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

Faculty Articles

No abstract provided.

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 …

A Response To The Sounds Of Silence, Andrew King-Ries

Faculty Law Review Articles

In his article, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, Tom Lininger attempts to "facilitate the effective prosecution of domestic violence cases, particularly domestic homicide, while complying with the new requirements announced [for forfeiture by wrongdoing] by the Supreme Court in Giles [v. California]."' In doing so, Lininger tackles a wide array of topics, including analyzing the "theoretical underpinnings" of forfeiture by wrongdoing; explicating the Giles decision, criticizing Justice Scalia's originalist approach for its "selective historical research . . . conflation of evidentiary and constitutional forfeiture theories, and . . . vacillation between objective and subjective …

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Articles & Chapters

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment-along with each of the present tests-encourages jurisdictional abuses by forcing the federal courts to …

Some Thoughts On The Lawyer’S E-Volving Duties In Discovery, Steven S. Gensler

Faculty Articles

No abstract provided.

Teamsters Local 445 Freight Division Pension Fund V. Dynex Capital Inc., Erica E. Bonnett

NYLS Law Review

No abstract provided.

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Jurisdiction's Noble Lie, Frederic M. Bloom

Publications

This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would.

To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction's foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid …

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

An Ounce Of Prevention: Solving Some Unforeseen Problems With The Proposed Amendments To Rule 56 And The Federal Summary Judgment Process, Adam N. Steinman

Faculty Scholarship

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the …

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

The Verdict On Juries, Valerie P. Hans, Neil Vidmar

Cornell Law Faculty Publications

In reviewing debates and research evidence about jury trials for our book, American Juries: The Verdict (Prometheus Books, 2007), we have had the chance to reflect on the status of the jury system in the United States. High profile jury trials put the spotlight on the American practice of using its citizens as decision makers. When jury verdicts are at odds with public opinion, criticisms of the institution are common. The civil jury has been a lightning rod for those who want tort reform. This article draws together some of our reflections about the health of the jury system …

Plausibility Pleading, A. Benjamin Spencer

Faculty Publications

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a) (2), which requires a "short and plain" statement of a plaintiffs claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the …

Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler

Faculty Articles

No abstract provided.

What Do We Have Against Parents?: An Assessment Of Judicial Bypass Procedures And Parental Involvement In Abortions By Minors, Wade Schueneman

Georgia Law Review

It is the established law of the land that minors enjoy a limited right to terminate unwanted pregnancies. States may restrain the exercise of this right by requiring parental consent or notification, but they must allow minors an opportunity to bypass consent requirements. This Note examines the history and present state of judicial and nonjudicial bypass mechanisms. It details the constraints and requirements imposed by state and federal constitutions, assesses the current landscape of parental involvement statutes, and provides prescriptive analysis as to how states might choose to refine and improve their bypass mechanisms to better protect parental rights.

The Revolution Of 1938 And Its Discontents, Rex R. Perschbacher, Deborah Bassett

Oklahoma Law Review

No abstract provided.

Not Dead Yet, Richard L. Marcus

Oklahoma Law Review

No abstract provided.

Making Effective Rules: The Need For Procedure Theory, Robert G. Bone

Oklahoma Law Review

No abstract provided.

Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler

Oklahoma Law Review

No abstract provided.

National Juries For National Cases: Preserving Citizen Participation In Large-Scale Litigation, Laura Dooley

Scholarly Works

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use …

Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor

University of Richmond Law Review

No abstract provided.

Empowering The Active Jury: A Genuine Tort Reform, Valerie P. Hans

Cornell Law Faculty Publications

The rallying cry of "tort reform" is frequently associated with changes to the civil justice system that restrict the civil jury or avoid it altogether. Tort reformers have praised United States Supreme Court rulings that have led to greater judicial control over the evidence, especially scientific evidence, which juries hear. Other reformers advocate bifurcation of trials to avoid the possibility of jurors being so negatively influenced by testimony about damages that it affects their liability judgments.

The tort system aims to compensate fairly and equitably those who are injured by others, and to do so in an efficient manner. Concerns …