Litigation Commons^™

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in years 1998 and 1999.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance law in the year 1998.

Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight

Scholarly Works

On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.

Scientific Testing & Proof Of Paternity: Some Controversy And Key Issues For Family Law Counsel, Christopher L. Blakesley

Scholarly Works

Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of …

Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel

Scholarly Works

Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a first premise the view that mediation is by definition non-evaluative, and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators little or no leeway to depart from the non-evaluative style. This sort of regulatory regimen may satisfy the non-evaluative ethos of some mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to …

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

Scholarly Works

The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

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 …

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Democratic Responses To International Terrorism, Christopher L. Blakesley

Scholarly Works

This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel

Scholarly Works

Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

Scholarly Works

The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

Scholarly Works

One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

Scholarly Works

Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

Scholarly Works

With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

International Judicial Assistance, Christopher L. Blakesley

Scholarly Works

The general or even specialized practitioner faces serious difficulties as the world shrinks and the practice of law frequently transcends international boundaries. In the civil and commercial arena, issues of discovery and service of documents abroad, others relating to judicial assistance from foreign courts, available to American courts or individual litigants, and assistance available from American courts for foreign governments and individual litigants, can be mindboggling. In an age where transnational litigation (that is, domestic litigation that touches upon one or more foreign jurisdictions) is rapidly increasing, counsel could be guilty of malpractice if counsel takes action abroad that proves …

A Better Approach To Arbitrability, Jeffrey W. Stempel

Scholarly Works

Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel

Scholarly Works

As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As …

Child Custody - Jurisdiction And Procedure, Christopher L. Blakesley

Scholarly Works

Custody determinations traditionally have comprised a subcategory of litigation under the Pennoyer v. Neff exception for proceedings relating to status. Of course, states have the power to decide the status of their domiciliaries. It was natural, therefore, for the courts and scholars of the nineteenth and early twentieth centuries to consider domicile the sole basis of jurisdiction in custody matters. Gradually, judges and scholars began to challenge the notion that domicile was the sole basis and courts began to apply other bases, such as the child's presence in the state or personal jurisdiction over both parents. One commentator suggests that …

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Norris V. Arizona Governing Committee: Titile Vii's Applicability To Arizona's Deferred Compensation Plan, Mary E. Berkheiser

Scholarly Works

Analysis of Norris v. Arizona Governing Comm., 671 F.2d 330 (9^th Cir. 1982).

Book Review, Elaine W. Shoben

Scholarly Works

Quantitative Methods in Law represents the efforts of one legal scholar to apply mathematical probability and statistics to the solution of a wide range of legal problems. Michael O. Finkelstein has republished in book form a collection of his articles, beginning with his most famous and most widely cited: the application of mathematical probability to jury discrimination cases. After leading the reader through a series of fascinating applications of statistical problem solving to an impressively wide range of legal situations, the book concludes with the final words of one of the most engaging battles among legal scholars in recent years: …