Litigation Commons^™

Nuremberg In America: Litigating The Holocaust In United States Courts, Michael J. Bazyler

University of Richmond Law Review

The phrase "opening the floodgates of litigation" connotes a pejorative meaning in American legal argument. Most often, it is used by courts as a reason not to allow a certain case to proceed for fear that it would overburden both courts and society with a new class of lawsuits.

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

What Passes For Policy And Proof In First Amendment Litigation?, Rodney A. Smolla

University of Richmond Law Review

In this Allen Chair Symposium issue of the University of Richmond Law Review, three outstanding scholars have written provocative pieces on the First Amendment. Professor John Nowak engages in an exercise of constitutional futurism, "'remembering the future" to propose a number of relatively radical alterations of First Amendment doctrine to achieve what he argues should be the appropriate balance between freedom of speech and fair trials in "cyber world." Professor Paul Carrington, arguing that a communitarian right of citizens to self-government is the principal that ought to animate our politics and law, has launched a broadside indictment against contemporary First …

Trial Participants In The Newsgathering Process, C. Thomas Dienes

University of Richmond Law Review

The 1990s produced a number of sensational criminal and civil trials. The media and public avidly followed the murder trials of O.J. Simpson and the Menendez brothers, the Oklahoma City bombing trials of Timothy McVeigh and Terry Nichols, and the trial of those charged in the World Trade Center bombing. Civil trials involving products liability, medical malpractice, environmental pollution; the civil trial of O.J. Simpson; Paula Jones's sexual harassment action against President Clinton; and the notorious antitrust case against Microsoft similarly captured the public's attention. Also, as might be expected, trial judges and the legal system generally grappled with questions …

Elevated Pleading In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark.

The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Special Problems In Civil Procedure - Complex Litigation, Francis H. Hare Jr., Judge Robert M. Parker, Gerald A. Connell, Mary Kay Kane

University of Richmond Law Review Symposium

"Organization and Presentation of a Complex Case" lecture given by Francis H. Hare Jr., a partner in the law firm of Hare, Wynn, Newell & Newton, in Birmingham, Alabama.

"Judicial Management of Complex Cases" lecture given by the Honorable Robert M. Parker, Chief Judge of the United States District Court for the Eastern District of Texas.

"Complex Litigation in the Public Sector" lecture given by Gerald A. Connell, a member of the firm of Baker & Hostetler, in Washington, D.C.

"The Future of Complex Litigation" lecture given by Mary Kay Kane, academic dean and Professor of Law at Hastings College …

Reassessing Rule 11 And Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules amended Federal Rule of Civil Procedure (Rule 11) in August 1983 because of increasing concern about attorney abuses in civil lawsuits and about the so-called litigation explosion. The revision commands courts to sanction lawyers and parties who do not undertake reasonable prefiling inquiries. Certain aspects of the new version's implementation provoked substantial controversy which continued virtually undiminished from the amendment's August 1983 effective date at least until the fifth anniversary of its adoption. Perhaps most controversial was the question whether courts' application inhibited the pursuit of legitimate litigation, especially cases involving civil rights …

The Whole Truth And Nothing But The Truth: Is The Trier Of Fact Entitled To Hear It?, Joseph M. Reisman

University of Richmond Law Review

The fundamental goal of our adversarial system of litigation is to arrive at the truth through a fair presentation of the evidence. However, in a criminal proceeding material evidence is frequently not as available to the defense as it is to the prosecuting attorney. Consequently, rules have been developed which not only aid the defense in obtaining relevant information, but also assist the prosecution in fulfilling its ethical and constitutional obligations, chief among which is to see that justice and due process are upheld.

Review On A Virginia Cause, William Hamilton Bryson

Law Faculty Publications

A book review on A Virginia Cause by B. Lamb.

Prisoners' Rights Litigation- 42 U.S.C. §1983- Litigation: Defendant's View, Burnett Miller Iii

University of Richmond Law Review

There can be little doubt that since the late 1960's the status and conditions of our prisons have become a public issue. It can probably be said without citation that as a general proposition most states have found their prisons in a state of need. Our prisons have for many years been economically neglected in the wake of more publicly acceptable priorities. The philosophy seemed to be that prisoners were criminals that should be put away, and their lot was of their own making. There would then, of course, always be more pressing and socially acceptable purposes for which to …

Victims' Rights Litigation: A Wave Of The Future?, Frank Carrington, Fred E. Inbau

University of Richmond Law Review

American Jurisprudence 2d quite properly claims to be one of the most, if not the most, comprehensive legal encyclopedia in this country. Any attorney who has had the opportunity to peruse this work would be forced to agree. It is, therefore, an interesting and unfortunate commentary upon the state of law in our society that of the thousands of topics covered in this monumental compendium of knowledge, none deals with the victims of crime.

Prisoners' Rights Litigation- 42 U.S.C. §1983- Litigation: Plaintiff's View, John D. Grad, Philip J. Hirschkop

University of Richmond Law Review

During the years of the Warren Court, much social progress was achieved in this country through litigation. In the areas of civil liberties and civil rights this was chiefly done through affirmative law suits brought in federal court under the Civil Rights Act of 1870. While this Act was not widely used in its first ninety years, its development in the last two decades has been remarkable. Suits under the Constitution and this Act have brought dramatic change in the fields of civil rights and civil liberties.

A Review Of Prisoners' Rights Litigation Under 42 U .S.C . §1983, Scott D. Anderson, Theodore I. Brenner, Vera Duke, James E. Gray, Ronald M. Maupin

University of Richmond Law Review

Before the mid-1960's, the federal courts frequently invoked the "hands-off" doctrine, a rule of deference to state correctional administrators, when petitioned by inmates to review conditions in state jails and prisons. When applied, the doctrine essentially held that a state prisoner's grievance was beyond the scope of authority or competence ofthe federal judiciary. With an increasing realization during the late 1960's and early 1970's that federal court intervention into state prison matters would be necessary, the 42 U.S.C. § 19831 civil rights complaint became the leading tool for effecting change in the area of prisoners rights. In order to gain …

Litigation Against A State Trader- A No-Win Contest, Jon Magnusson

University of Richmond Law Review

A litigant who sues a state trading corporation for eight years through two trials, four appeals, and three certiorari denials, and then finally wins a judgment for $411,203.72, but is unable to collect on his judgment, might feel a little discouraged about the fairness of a principle of law that denies him a right to recovery. The principle is "sovereign immunity;" a sovereign state and its property, without its consent, are immune from the adjudicative processes of the courts in another sovereign state. In traditional international law, it does not matter what kind of activity the state is engaged in; …