Litigation Commons^™

What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jones et. al. v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). The author predicted that the case would require the court to determine the appropriate statute of limitations to apply in a class action race-discrimination lawsuit filed under 42 U.S.C. § 1981.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

No Free Lunch: How Settlement Can Reduce The Legal System's Ability To Induce Efficient Behavior, Abraham Lee Wickelgren

ExpressO

While there is widespread agreement that it is better for cases to settle than go to trial, the arguments in favor of settlement have typically overlooked how settlement affects one of the most important functions of the legal system: influencing the behavior that gives rise to lawsuits. This essay argues that, in some cases, settlement can impair the ability of the legal system to deter harmful behavior without chilling desirable behavior. Where it exists, this effect is a fundamental property of settlement in that there is no way to change other legal rules to eliminate it. Because settlements also have …

Opening Statement -- Making It Stick, Ronald L. Carlson, Michael S. Carlson

Popular Media

Every lawyer who sits down to plan her opening remarks for a coming trial has the same question: How far can I go in arguing my case during the opening statement? Can I mention the law? What about drawing a diagram of the accident on a blackboard? Will my opponent be able to stop me from displaying a couple of my dramatic exhibits to the jury?

Making one's theory of the case "stick" from the very start of the trial depends mightly on how far the lawyer can go in opening statement. Where the defense is primarily a legal or …

Applications For Certificates Of Appealability And The Supreme Court's "Obligatory" Jurisdiction, Brent E. Newton

The Journal of Appellate Practice and Process

No abstract provided.

Advocacy Before The United States Supreme Court, Robert H. Jackson

The Journal of Appellate Practice and Process

No abstract provided.

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

Does Lewis V. Casey Spell The End To Court-Ordered Improvement Of Prison Law Libraries?, Joseph L. Gerken

Law Librarian Journal Articles

The Supreme Court's decision in Lewis v. Casey raises the bar for advocates seeking court-ordered improvements in prison law libraries. Whether it dooms all such efforts to failure may well depend on the willingness of trial courts to take into account the realities of prisoners' pro se litigation.

Into The Abyss: How Party Autonomy Supports Overreaching Through The Exercise Of Unequal Bargaining Power, 36 J. Marshall L. Rev. 421 (2003), Pamela Edwards

UIC Law Review

No abstract provided.

Mandamus As A Weapon Of "Class Warfare" In Sixth Amendment Jurisprudence: A Case Comment On United States V. Santos, 36 J. Marshall L. Rev. 733 (2003), John F. Costello Jr.

UIC Law Review

No abstract provided.

Forum Selection Clauses In Diversity Actions, 36 J. Marshall L. Rev. 941 (2003), Kendra Johnson Panek

UIC Law Review

No abstract provided.

Agreeing To Disagree: A Balanced Solution To Whether Parties May Contract For Expanded Judicial Review Beyond The Faa, 36 J. Marshall L. Rev. 1005 (2003), Anthony J. Longo

UIC Law Review

No abstract provided.

The Reliability Of The Administrative Office Of The U.S. Courts Database: An Initial Empirical Analysis, Theodore Eisenberg, Margo Schlanger

Articles

Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve nonspecialized federal appellate courts. Much research using the AO data spans subject matter areas, and includes articles on appeals, caseloads and case-processing times, case outcomes, the relation between demographics and case outcomes, class actions, diversity jurisdiction, and litigation generally. Other research using the AO data covers particular subject matter areas, such as inmate cases, contract cases, corporate litigation, …

Helping The Pro Se Litigant: A Changing Landscape, Paula Hannaford-Agor

Faculty Publications

This article describes how the influx of self-represented litigants has forced many within the court and legal communities to reconsider some of the fundamental premises on which the civil justice system is based and to respond in new and creative ways to changing litigant demands on existing court and legal resources. It focuses on changes to the delivery of legal services to low- and moderate-income people, especially the emergence of “unbundled” legal services, and addresses the practical implications related to the distinction between legal information and legal advice. Finally, it describes how judges and court staff are rethinking the conceptual …

Research On Self-Represented Litigation: Preliminary Results And Methodological Considerations, Paula Hannaford-Agor, Nicole Mott

Faculty Publications

As various programs for self-represented litigants proliferate and costs increase, fund­ing agencies are beginning to demand that programs demonstrate their effectiveness through empirical evaluation. This article recounts some of the lessons learned from a National Center for State Courts' research project on improving access to justice for self-represented litigants. First, the article briefly describes the problems faced by courts as a result of the influx of self-represented litigants. The article then describes automated case-level data and litigant self-reported data from five jurisdictions and some preliminary findings. We conclude with a discussion of problems that we encoun­tered in analyzing those data.

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Cornell Law Faculty Publications

During jury selection, many courts adopt a minimal approach to voir dire questions, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. This Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.

Thermal Imaging And The Fourth Amendment: The Role Of The Katz Test In The Aftermath Of Kyllo V. United States, Gregory Gomez

NYLS Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

The Role Of Workplace Culture Evidence In Hostile Workplace Environment Sexual Harassment Litigation: Does Title Vii Mean New Management Or Just Business As Usual?, Christopher Massaro

NYLS Law Review

No abstract provided.

How Employment-Discrimination Plaintiffs Fare In The Federal Courts Of Appeals, Kevin M. Clermont, Theodore Eisenberg, Stewart J. Schwab

Cornell Law Faculty Publications

Employment-discrimination plaintiffs swim against the tide. Compared to the typical plaintiff, they win a lower proportion of cases during pretrial and after trial. Then, many of their successful cases are appealed. On appeal, they have a harder time in upholding their successes, as well in reversing adverse outcome.

This tough story does not describe some tiny corner of the litigation world. Employment-discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent.

In this article, we use official government data to describe the appellate phase of this …

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.

Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.

An Argument For Reviving The Actual Futility Exception To The Supreme Court's Procedural Default Doctrine, Brent E. Newton

The Journal of Appellate Practice and Process

No abstract provided.

Seeing The Appellate Horizon: Civil Trial Strategy And Standards Of Review In The Eighth Circuit, R. Christopher Lawson

The Journal of Appellate Practice and Process

No abstract provided.

"Can We Go Home Now?" Expediting Adoption And Termination Of Parental Rights Appeals In Ohio State Courts, Susan C. Wawrose

The Journal of Appellate Practice and Process

No abstract provided.

The Expedited Appeals Process For The District Of Columbia Court Of Appeals, Bonny L. Tavares

The Journal of Appellate Practice and Process

No abstract provided.

Expedited Appeals In Kentucky, Susan Hanley Kosse, Kristen S. Miller

The Journal of Appellate Practice and Process

No abstract provided.

To Expediency And Beyond: Vermont's Rocket Docket, Tracy Bach

The Journal of Appellate Practice and Process

No abstract provided.

New Hampshire's Three-Judge Expedited Docket, Joseph P. Nadeau

The Journal of Appellate Practice and Process

No abstract provided.

Appellate Procedure In West Virginia: Why Rule 4a'S Expedited Petition Process Isn't Attractive To Attorneys, Grace Wigal

The Journal of Appellate Practice and Process

No abstract provided.