Litigation Commons^™

A Residual Damages Right Against The Irs: A Cure Worse Than The Disease, Steve R. Johnson

Scholarly Publications

Tax scholarship commonly has emphasized the substantive rules of tax liability, according less than due attention to tax procedure. Recently, however, this imbalance has been partly redressed as a result of the taxpayer rights movement. The major legislative products of the movement have been the Taxpayer Bill of Rights (TBORl) in 1988, the Taxpayer Bill of Rights 2 (TBOR2) in 1996,and the Taxpayer Bill of Rights (TBOR3) in 1998. Congress currently is considering a fourth installment in the series. These measures – especially TBOR3 – have provoked considerable useful commentary from both practitioners and academics.

Nonetheless, much work remains to …

A Vision Of The Future Of Appellate Practice And Process, George Nicholson

The Journal of Appellate Practice and Process

Technology is changing appellate practice in two different ways. The first, is increasing efficiency. Technology is also changing the scope and direction of traditional appellate practice and process.

A Review Of Electronic Court Filing In The United States, Bradley J. Hillis

The Journal of Appellate Practice and Process

The rise of e-commerce has caused many courts to begin filing and storing pleadings electronically. This article discusses e-filing software, the benefits to and development of extensible mark-up language (“XML”) for legal documents, and the impact the future of e-filing.

The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer

The Journal of Appellate Practice and Process

The information presented to courts has traditionally been written and oral. Many courts are adopting technology into the courtroom. Changing the record from text to multi-media is the most sweeping of these changes.

Appellate Practice And Procedure, William M. Droze, Jeri N. Sute

Mercer Law Review

Rules of practice and procedure in appellate courts, such as the United States Court of Appeals for the Eleventh Circuit, significantly impact cases brought before those courts comprising the circuit. From enforcement of procedural rules requiring the timely filing of a notice of appeal to application of justiciability doctrines to determine a party's standing to bring a claim, issues of practice and procedure commonly arise at the court of appeals.

This Article explores the application of practice and procedure by the Eleventh Circuit during 1999. The topics discussed include appellate culling of appealable issues; appellate treatment of interlocutory matters; timeliness …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1999 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

• Removal Jurisdiction
• Arbitration
• Abstention
• Final Judgment
• Preemption
• Jurisdiction
• Appellate Jurisdiction

Evaluating Scientific And Forensic Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood offers a critique of the present state of scientific and forensic evidence. In the context of discussing four challenges to the field, the author arms the practitioner with strategies and tactics for making effective use of scientific and forensic testimony.

Justice Delayed?: An Empirical Analysis Of Civil Case Disposition Time, Michael Heise

Cornell Law Faculty Publications

This Article addresses the need to understand better our civil justice system by exploring possible determinants of disposition time for civil cases that reach a jury trial. This study uses one year of civil jury case outcomes from 45 of the nation's 75 most populous counties and identifies locale as one important variable, along with certain case types, results, and characteristics. An empirically moored understanding of the causes of case disposition time will assist public policy and reform efforts that seek to make civil justice speedier and, as a consequence, more inexpensive and just. Findings from this study call into …

Permitting Jury Discussions During Trial: Impact Of The Arizona Reform, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

A field experiment tested the effect of an Arizona civil jury reform that allows jurors to discuss evidence among themselves during the trial. Judges, jurors, attorneys, and litigants completed questionnaires in trials randomly assigned to either a Trial Discussions condition, in which jurors were permitted to discuss the evidence during trial, or a No Discussions condition, in which jurors were prohibited from discussing evidence during trial according to traditional admonitions. Judicial agreement with jury verdicts did not differ between conditions. Permitting jurors to discuss the evidence did affect the degree of certainty that jurors reported about their preferences at the …

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers

Faculty Publications

This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to …

"The Mis-Characterization Of The Negro": A Race Critique Of The Prior Conviction Impeachment Rule, Montrè D. Carodine

Indiana Law Journal

The election of Barack Obama as the nation's first Black President was a watershed moment with respect to race relations in the United States. Obama's election removed what to many seemed a nearly insurmountable racial barrier. Yet as he transitions into his historic role and his family becomes the first Black occupants of the White House, scores of Blacks are housed in jails and prisons across the country. The mass incarceration of Blacks, among other serious issues, demonstrates that race still matters in the United States. As then-presidential candidate Obama acknowledged in the speech that many viewed to be pivotal …

The Timing Of Opinion Formation By Jurors In Civil Cases: An Empirical Examination, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman

Cornell Law Faculty Publications

The question of when and how jurors form opinions about evidence presented at trial has been the focus of seemingly endless speculation. For lawyers, the question is how to capture the attention and approval of the jury at the earliest possible point in the trial. Their goal is to maximize the persuasiveness of their arguments--or at least to minimize the persuasiveness of those of the opposing side. Judges, in contrast, are more concerned about prejudgment. They regularly admonish jurors to suspend judgment until after all the evidence has been presented and after the jurors have been instructed on the law. …

Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino

Cornell Law Faculty Publications

No abstract provided.

The False Claims Act And The English Eradication Of Qui Tam Legislation, J. Randy Beck

Scholarly Works

Congress amended the False Claims Act in 1986 to encourage qui tam enforcement of the statute, which penalizes submission of false claims to the federal government. A qui tam statute authorizes a private citizen "informer" to file suit on behalf of the government for collection of a statutory forfeiture. A successful informer receives a share of the recovery. Qui tam enforcement came from England, where it served for centuries as the principal means of enforcing a wide range of statutes. England moved away from qui tam enforcement in the 1800s and abolished it altogether in 1951. In this Article, Professor …

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

UF Law Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons—some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

Equity And Settlement Class Actions: Can There Be Justice For All In Ortiz V. Fibreboard , Nikita Malhotra Pastor

American University Law Review

No abstract provided.

New Developments In Scientific Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

Thoughts On Some Potential Appellate And Trial Court Applications Of Therapeutic Jurisprudence, Steve Leben

Seattle University Law Review

To date, the application of therapeutic jurisprudence principles has been concentrated mainly on specialized trial courts: drug treatment courts, domestic violence courts, criminal courts, and juvenile and family courts. Its application to trial courts generally, as well as its application to the appellate courts, remains largely unexplored. This Article considers three areas in which trial and appellate courts may want to consider applying therapeutic jurisprudence.

Classical Legal Naturalism And The Politics Of John Marshall's Constitutional Jurisprudence, 33 J. Marshall L. Rev. 935 (2000), Robert Lowry Clinton

UIC Law Review

No abstract provided.

John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, 33 J. Marshall L. Rev. 875 (2000), R. Kent Newmyer

UIC Law Review

No abstract provided.

John Marshall In Spencer Roane's Virginia: The Southern Constitutional Opposition To The Marshall Court, 33 J. Marshall L. Rev. 1131 (2000), F. Thornton Miller

UIC Law Review

No abstract provided.

Retaliatory Discharge For Attorney-Employees In Private Practice: To Do, Or Not To Do, The Right Thing, 33 J. Marshall L. Rev. 383 (2000), Terri Martin Kirik

UIC Law Review

No abstract provided.

Bitch V. Whore: The Current Trend To Define The Requirements Of An Actionable Hostile Environment Claim In Verbal Sexual Harassment Cases, 33 J. Marshall L. Rev. 465 (2000), Jamie Lynn Cook

UIC Law Review

No abstract provided.

Minnesota Court Of Appeals Hears Oral Argument Via Interactive Teleconferencing Technology, Edward Toussaint

Faculty Scholarship

The Minnesota Court of Appeals is dedicated to providingaffordable access to the appellate process. Access to theappellate process is central to our vision. In order to promote this vision, the Minnesota Court ofAppeals has taken the initiative to implement Interactive VideoTeleconferencing ("IVT"). This essay will discuss the historybehind this decision, the mechanics of its implementation, andthe benefits and challenges of its application to the appellateprocess.

"Johnny's In The Basement/Mixing Up His Medicine": Therapeutic Jurisprudence And Clinical Teaching, Keri K. Gould, Michael L. Perlin

Seattle University Law Review

Therapeutic jurisprudence (TJ) provides a new and exciting approach to clinical teaching. By incorporating TJ principles in both the classroom and out-of-classroom components of clinic courses, law professors can give students new and important insights into some of the most difficult problems regularly raised in clinical classes and practice settings. This Article will proceed in three sections. The first section briefly provides some background about TJ and how it has been employed to investigate other areas of the law. Then, the Article discusses some of the important new theoretical developments in clinical legal education, mostly from the "critical lawyering" perspective. …

Therapeutic Jurisprudence And The Appellate Courts: Possibilities, Linda M. Mcgee

Seattle University Law Review

Therapeutic jurisprudence has multiple possibilities, provided it does not add another layer of cost, delay, and time to the process. First, we should see "a reduced number of cases for the appellate court to decide, fewer remands and secondary appeals, the streamlining of appeals through partial resolution of issues, the satisfaction of parties' underlying needs and interests, and the reduction of the time a case spends on appeal." Second, the outcome does not have to become part of the case law that applies to similar cases, possibly establishing negative precedent. Third, mediation allows personal healing and the development of positive, …

Silencing The Appellant's Voice: The Antitherapeutic Per Curiam Affirmance, Amy D. Ronner, Bruce J. Winick

Seattle University Law Review

This Article will analyze the antitherapeutic impact of the per curium affirmance (PCA) in two steps. First, delving into the psychology of procedural justice, this Article will explain how litigants value "voice," or the ability to tell their stories, as well as "validation," or the sense that the decisionmaker has heard their words and taken them seriously. Second, this Article, through the use of narrative, will show how a PCA had a negative psychological impact on an actual appellant in a criminal case. The Article will conclude by proposing an alternative to the antitherapeutic PCA.

Noriega V. Hernández Colón: Political Persecution Under Therapeutic Scrutiny, Roberto P. Aponte Toro

Seattle University Law Review

Therapeutic jurisprudence is a relatively young school of thought. One of its major attractions to the academic community has been its claim that society could use the law, both at the legislative and adjudicatory level, to promote the psychological well-being of those affected by the law. In this commentary, I want to share a little known decision of the Supreme Court of Puerto Rico regarding police persecution of political minorities. It is my contention that looking at this decision through the lens of therapeutic jurisprudence, one may discover a serious effort by the court to heal very divisive wounds on …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …