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Articles 451 - 480 of 605
Full-Text Articles in Jurisprudence
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman
Faculty Scholarship
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …
Footnote Online Supplement: State Truancy Law Compilation, Dean H. Rivkin
Footnote Online Supplement: State Truancy Law Compilation, Dean H. Rivkin
College of Law Faculty Scholarship
This compilation of state truancy laws is being provided as a footnote supplement to the forthcoming article No Child Left Behind? Representing Youth and Families in Truancy Matters (2013) by Prof. Dean Hill Rivkin and Brenda McGee, of The Education Law Practicum at the University of Tennessee College of Law. It is an updated version of the laws listed in the Juvenile Law Center’s excellent amicus curiae brief in Bellevue School District v. E.S., Brief of Juvenile Law Center, et al., As Amicus Curiae on Behalf of Respondent, Bellevue Sch. Dist. v. E.S., 257 P.3d 570 (Wash. 2011) …
Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie
Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
Florida Law Review
Part I of this Article chronicles and summarizes the development of the Supreme Court’s punitive damages jurisprudence. Over the past two decades, the Court has increasingly constitutionalized various aspects of punitive damages jurisprudence, using both procedural and substantive due process rationales. A set of three “guideposts” has emerged that courts are to use in determining whether a punitive damages award runs afoul of constitutional guarantees.
Part II outlines the multiple punishments problem that is currently facing courts throughout the country and provides a brief overview of the various failed attempts and current proposals to remedy this problem.
Part III provides …
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
Pepperdine Law Review
World Wide Volkswagen Corporation v. Woodson considers the problem of modifying in personam jurisdiction to comply with the changing nature of the American economy. Several lower courts had adjusted the "minimum contacts" test of International Shoe Co. v. Washington to allow for the differences in modern economic lifestyle, but a uniformity amongst the various approaches was lacking. Rather than synthesize a contemporary test for the assertion of in personam jurisdiction, the World- Wide Court chose to place state sovereignty above modern commercial realities and adhere to a more rigid application of the minimum contacts analysis. The author takes issue with …
The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger
The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger
Pepperdine Law Review
The new Starker decision addresses the issue whether a nonsimultaneous exchange qualifies for section 1031 nonrecognition treatment. The Court of Appeals for the Ninth Circuit, in addressing this issue, also had to determine the appropriateness of the collateral estoppel "separable facts" doctrine under the facts in the case. The author provides an in-depth examination of the court's clarification of collateral estoppel and expansion of section 1031. The author, in agreeing with-the decision, welcomes the added flexibility the case lends to the real estate finance field.
Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger
Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger
Pepperdine Law Review
Recognizing the continually increasing burden placed on the jury in complex litigation cases, the author undertakes an extensive study of the origins of jury trials in the United States and England. Various arguments in favor of eliminating jury trials in complex litigation are discussed, along with a possible constitutional method of limiting the scope of the seventh amendment guarantee. The author also studies the case of Ross v. Bernhardt where the Supreme Court outlined a seldom used three- pronged test to determine whether or not a jury trial is constitutionally appropriate. The comment concludes that the factors in favor of …
Muko And Conex: The Third Circuit Responds To Connell , Robert A. King, Melvin L. Moser
Muko And Conex: The Third Circuit Responds To Connell , Robert A. King, Melvin L. Moser
Pepperdine Law Review
The authors discuss the application of federal antitrust laws to organized labor. The article, written for practitioners, defines the elements necessary to obtain a recovery in labor antitrust actions. The authors analyze the standard of review, burden of proof and the elements which the unions must show in order to be exempted from antitrust law. The focal point of the article is the comparison between the Supreme Court's most recent discussion of the labor exemption in Connell Construction Co. v. Plumbers & Steamfitters Local Union 100 and the Third Circuit's application of that exemption in Larry V. Muko v. Southwestern …
A Reappraisal Of General And Limited Jurisdiction In California , Thomas Kallay
A Reappraisal Of General And Limited Jurisdiction In California , Thomas Kallay
Pepperdine Law Review
The ability of a California court to assert jurisdiction over business enterprises currently depends upon how the court characterizes the nature and extent of the business's activities within the state. If the in-state business activities of a particular concern are extensive, California courts will exercise all-encompassing general jurisdiction over the cause of action, but if the activities are insufficient to warrant the exercise of general jurisdiction, which has been invariably the case, the court will then turn to a consideration of limited jurisdiction, which jurisdiction depends upon the quality and nature of the business's activities in the forum in relation …
Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.
Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.
Pepperdine Law Review
No abstract provided.
Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David G. Carlson
Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David G. Carlson
Articles
In this article, we examine the recent case of Hotel 71 Mezz Lender LLC v. Falor (2010), from the New York Court of Appeals. In this case, New York’s highest court held that LLCs are “present” in New York for jurisdictional purposes when the president of the LLC has submitted to New York jurisdiction in an unrelated law suit against him personally, and where the president came to New York for a deposition in that action. This, we claim, was unconstitutional. In addition, the New York Court of Appeals pronounced itself obliged by the United States Constitution to change the …
Standing To Sue A Carrier's Killers , Davis J. Howard
Standing To Sue A Carrier's Killers , Davis J. Howard
Pepperdine Law Review
No abstract provided.
Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown
Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown
Scholarly Works
It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This …
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
Pepperdine Dispute Resolution Law Journal
There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …
Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick
Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules …
Georgia's New Evidence Code - An Overview, Paul S. Milich
Georgia's New Evidence Code - An Overview, Paul S. Milich
Georgia State University Law Review
On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.
The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.
Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …
California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon
California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon
Pepperdine Dispute Resolution Law Journal
Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.
Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich
Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich
Pepperdine Dispute Resolution Law Journal
In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Pepperdine Dispute Resolution Law Journal
This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …
A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston
A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston
Pepperdine Dispute Resolution Law Journal
In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …
American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich
American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich
Pepperdine Dispute Resolution Law Journal
In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …
American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan
American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan
Pepperdine Dispute Resolution Law Journal
In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …
American Justice At A Crossroads: Opening Remarks, Kenneth Starr
American Justice At A Crossroads: Opening Remarks, Kenneth Starr
Pepperdine Dispute Resolution Law Journal
In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …
An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna
An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna
Pepperdine Dispute Resolution Law Journal
This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Pepperdine Dispute Resolution Law Journal
This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …
(Dis)Service Of Process: The Need To Amend Rule 4 To Comply With Modern Usage Of Technology, 45 J. Marshall L. Rev. 459 (2012), Svetlana Gitman
(Dis)Service Of Process: The Need To Amend Rule 4 To Comply With Modern Usage Of Technology, 45 J. Marshall L. Rev. 459 (2012), Svetlana Gitman
UIC Law Review
No abstract provided.
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera
Faculty Scholarship
No abstract provided.
The Meaning Of Mcintyre, Adam N. Steinman
The Meaning Of Mcintyre, Adam N. Steinman
Faculty Scholarship
When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.
This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …