Litigation Commons^™

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Dead Men Telling Tales - A Policy-Based Proposal For Survivability Of Qui Tam Actions Under The Civil False Claims Act, Vickie J. Williams

ExpressO

The civil False Claims Act is a powerful tool used by both the federal government and private citizens, under the statutes "qui tam" or "whistleblower" provisions, to fight fraud against the government. Use of the statute has continually risen in recent years, and recoveries under the statute are in the billions of dollars. The unique relationship between a private citizen whistleblower and the government who both have an interest in the case raises many interesting procedural and substantive issues of federal law. This article proposes an answer to one of these questions. The article proposes that a whistleblower suit survives …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

On The Alienation Of Legal Claims, Michael Abramowicz

ExpressO

Courts have become increasingly skeptical about rules restricting plaintiffs’ ability to sell legal claims, and legal commentators have argued that markets for claims would be efficient, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but in the reverse directions from what one might expect. A range of philosophical and other noneconomic considerations, …

Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey

ExpressO

Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

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 …

Expected Value Arbitration, Joshua P. Davis

ExpressO

This Article proposes a new form of dispute resolution, Expected Value Arbitration or “EVA.” It would award a plaintiff the expected value of the outcome at trial or, in other words, the plaintiff would receive the amount she would recover on average if numerous courts were to decide her claim. EVA’s novel use of expected value gives it several virtues that distinguish it from trial, traditional binding arbitration, and other academic proposals for imposed compromise: first, EVA allows parties to insist on their legal rights without braving the risks of winner-take-all adjudication; second, it minimizes errors in adjudication; and, third, …

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …

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 …

Narrative Highground: The Failure Of Intervention As A Procedural Device In Affirmative Action Litigation, Danielle R. Holley

ExpressO

No abstract provided.

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …

You Can’T Tear It Down: The Origins Of The D.C. Historic Preservation Act, Jeremy W. Dutra

Georgetown Law Historic Preservation Papers Series

No abstract provided.

Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …

Refracting The Spectrum Of Clean Water Act Standing In Light Of Lujan V. Defenders Of Wildlife, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

First, this article will review the impetus and purposes for the Clean Water Act of 1972, including its citizen suit provision, particularly as these purposes relate to the elimination of specific harm or causation requirements in enforcement actions under its provisions. Second, this article will briefly review the basic elements of Article III standing requirements as enunciated by the Supreme Court, and the development of Supreme Court standing doctrine in environmental cases leading up to and including the Defenders of Wildlife decision. Then the article will survey the various approaches courts have taken in applying Article III standing doctrine to …

What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1992 Survey year, “new” legislation was enacted which fundamentally changes the procedure for commencement of some lawsuits. Effective December 31, 1992, all civil actions in supreme and county courts must be commenced by filing a summons and complaint or summons with notice. Several important amendments to the Civil Practice Law and Rules (“CPLR”) were enacted and effective January 1, 1993, new IAS and escrow check bouncing rules became effective. Additionally, there have been significant developments in the decisional law of statute of limitations, discovery, sanctions, and the legal profession. These and other areas should be of interest to …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year seventeen articles of the CPLR were amended and three new articles were added. Also, effective December 1, 1991, Congress has approved important amendments to the Federal Rules of Civil Procedure, Civil Justice Expenses and Delay Reduction Plans were adopted by the Board of Judges of the Southern and Eastern Districts of New York. Additionally, there have been significant developments in the decisional law of discovery, statute of limitations, sanctions, and res judicata. These and other areas should be of interest to the practitioner.

New York Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year, the New York Court of Appeals issued important opinions with respect to strict compliance for service of process, the foreign object exception under CPLR 214-a, and disclosure against corporate employees. The Court also imposed sanctions for the first time under Part 130 of the Uniform Rules, and ruled that issue preclusion could be given to a criminal conviction to preclude subsequent civil litigation. In addition the Court recognized that substituted service could be used against a criminal contemnor. New York appellate courts issued instructive decisions regarding long-arm jurisdiction, forum non conveniens, and discovery of surveillance videos. …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year the New York Court of Appeals upheld the constitutionality of the state toxic tort revivor statute and adopted the market share theory in DES cases. The court also gave the bar a Christmas present in Tewari v. Tsoutsouros3 and clarified important discovery issues .Two appellate courts held that the AIDS virus falls within New York Civil Practice Law and Rules ("CPLR") 214-c and issued important decisions in notice of claims cases.6Also, several trial courts actively applied new sanctions rules. Perhaps the most important developments during the Survey year were the bench and bar proposals relating to …

Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents paint necessarily touches …

"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article will address primarily the lack of textual and historical support for the Court's narrow construction of jurisdictional provisions that cause it to deny the existence of jurisdiction. In addition, the Article will briefly describe the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share democratic theory and institutional legitimacy concerns that Professor Redish will address, but let me respectfully suggest that these issues are best understood in light of the congressional thought underlying the Title 28 authorizations.

History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In a recent article, we proposed that the Declaratory Judgment Act of 1934 was intended, contrary to the Supreme Court's long-standing interpretation, to enlarge the subject matter jurisdiction of the federal courts. When Congress considered the Act, jurisdictional concerns centered around whether declaratory judgments would violate the case-or-controversy clause, not whether introduction of the device would expand the federal question jurisdiction Congress already had authorized. There is, indeed, substantial evidence that Congress intended to expand federal question jurisdiction to include at least two, and possibly three, case models; there is virtually no evidence supporting the contrary position taken by the …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1988 Survey year, new sanction rules, effective January 1, 1989, were approved by the Court of Appeals, several Uniform Rules were amended: and existing rules applied by our courts. New legislation was also passed relating to a comprehensive Interest On Lawyers Account (IOLA). The Court of Appeals abolished the fiduciary shield doctrine: limited the reach of our long-arm statute (CPLR 302(a)(1)) in defamation actions: and ruled that motions to dismiss cannot be converted into summary judgments without notice to all parties. The Court of Appeals also refined the doctrine of issue preclusion, which has recently been expanded, and …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

While 1986 was a watershed year for the CPLR practitioner, 1987 passed with what one prominent commentator has referred "a yawn." Nonetheless, there were several important amendments to the CPLR in 1987 and our courts produced more than a few ''drab” opinions worthy of discussion. Furthermore, the bar and bench should rejoice because this year's Survey marks the twenty-fifth anniversary of the CPLR and the fiftieth anniversary of the Federal Rules of Civil Procedure. It is also the sixty-fifth year since a commentator first reviewed significant developments in New York civil practice.