Litigation Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Discrimination Presumption, Joseph A. Seiner

Notre Dame Law Review

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in …

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is grounded in …

Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main

Scholarly Works

In this essay, Professor Main offers one original observation and poses two new questions about the vanishing civil trial.

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

The Future Of Multidistrict Litigation, Jay Tidmarsh, Daniela Peinado Welsh

Journal Articles

The occasion for this Essay is the fiftieth anniversary of the enactment of the multidistrict-litigation statute, 28 U.S.C. § 1407. Multidistrict litigation has quietly become a central feature of federal litigation, sweeping one-third or more of all federal civil cases each year into aggregate proceedings. Recent commentary on multidistrict litigation has been highly critical of the “Wild West” quality of the proceedings, which arguably benefit repeat-player lawyers at the expense of their clients’ interests and autonomy. Reform of the process now seems likely. This Essay begins by describing the features, most historically contingent, that have brought multidistrict litigation to this …

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Business And Commercial Litigation In Federal Courts (4th Ed.) Edited By Robert L. Haig, James M. Wicks

St. John's Law Review

(Excerpt)

Four years ago, I reviewed Business and Commercial Litigation in Federal Courts (3d ed.), concluding then that notwithstanding the dwindling “brick-and-mortar,” traditional law libraries, this multi-volume treatise is a worthy tool in the arsenal of the business litigator. Well, now nineteen years after its inception, the treatise, Business and Commercial Litigation in Federal Courts (4th ed.) (“BCL”), is in its Fourth Edition, having added twenty-five new chapters leading to three more volumes. Is it still worth the shelf space? Unquestionably, this landmark treatise remains an essential guide for commercial litigators and in-house counsel alike. The addition of the new …

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s presidency …

Asbestos Trust Transparency, Mark A. Behrens

Fordham Law Review

Originally and for many years, the primary defendants in asbestos cases were companies that mined asbestos or manufactured amphibole-containing thermal insulation. Hundreds of thousands of claims were filed against the major asbestos producers, such as Johns-Manville Corp., Owens Corning Corp., and W.R. Grace & Co. By the late 1990s, asbestos litigation had reached such proportions that the U.S. Supreme Court noted the “elephantine mass” of cases and referred to the litigation as a “crisis.” Mass filings pressured “most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation. Following a 2000–2002 …

Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson

Fordham Law Review

The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of reappearing, …

What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler

Fordham Law Review

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and workers. In …

The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt

Fordham Law Review

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article …

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

In November 2014, the Duke Law Judicial Studies Center, which became the Bolch Judicial Institute in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of GUIDELINES AND PRACTICES prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team’s work product, the GUIDELINES AND PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles.

Most of …

A Fox In The Henhouse: Applying California's Delayed Discovery Rule In Federal Court, Samuel Donohue

Loyola of Los Angeles Law Review

No abstract provided.

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

None.

Trial Practice And Procedure, John O'Shea Sullivan, Tala Amirfazli, Adelyn B. Boleman

Mercer Law Review

The 2017 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, statutory interpretation, and federal subject-matter jurisdiction.

Getting Schooled: The United States Court Of Appeals For The Eleventh Circuit Holds That The Federal Government Need Not Show "Good Cause" Before Settling And Dismissing A Pending Qui Tam Action Against College, Laura Leigh Fox

Mercer Law Review

In United States v. Everglades College, Inc., a case of first impression in the United States Court of Appeals for the Eleventh Circuit, the court interpreted the good cause intervention requirement of § 3730(c)(3) of Title 31 of the United States Code (U.S.C.). The court was asked to determine whether the United States needed to show "good cause" for intervening in a qui tam action brought by two private individuals under the False Claims Act (FCA). The government, after originally declining to proceed with the FCA action itself, eventually decided to "intervene" while the action was pending on the …

Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima

Brooklyn Law Review

Third-party funding (TPLF) is when a nonparty, who does not have a direct stake in the litigation, funds a lawsuit. There are varying motivations that drive TPLF arrangements—including investors offering loans to receive a portion of the settlement or public interest groups sponsoring impact litigation. This note discusses a specific mode of TPLF that is motivated by a personal interest in the lawsuit rather than monetary gain, referred to as “malice maintenance.” At common law, maintenance was prohibited to prevent powerful and wealthy individuals form taking advantage of the court system. The majority of states today, however, permit at least …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and all …