Civil Law Commons^™

The Freedom Of Information Act Trial, 61 Am. U. L. Rev. 217 (2011), Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts' preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally. It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1 % of FOIA cases. It further examines how conducting FOIA trials …

The Costs Of Heightened Pleading, Alexander A. Reinert

Indiana Law Journal

In Conley v. Gibson, the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Iqbal and Twombly, by many accounts, two-stepped the Court from …

A Whole New World Of False-Claims-Act Liability: The 2009 Amendments And Learning Where To Draw The Line, David Baker

Catholic University Law Review

No abstract provided.

Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes On The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler

Richmond Public Interest Law Review

This Article begins by reviewing the history, purpose, and function of the Seventh Amendment within the American constitutional system. It then discusses the Supreme Court's analytical framework for preserving the fundamental features of the right to a civil jury trial while simultaneously permitting rational legal development of the jury system. Next, the Article provides a brief overview of the Court's Daubert jurisprudence, and argues that the creation of judicial gatekeeping has caused an institutional shift of adjudicatory authority away from juries and into the hands of judges in violation of the Seventh Amendment. The Article concludes by suggesting three legal …

Toward More Parsimony And Transparency In "The Essentials Of Marriage", Anita Bernstein

Faculty Scholarship

No abstract provided.

An Expectation Of Empathy, Steve Leben

Faculty Works

No abstract provided.

Attorney’S Fees In Civil Rights Cases—October 2009 Term, Martin A. Schwartz

Scholarly Works

No abstract provided.

Director Liability For Corporate Crimes: Lawyers As Safe Haven?, John A. Humbach

NYLS Law Review

No abstract provided.

Duty Of Obedience: The Forgotten Duty, Alan R. Palmiter

NYLS Law Review

No abstract provided.

The Short, But Interesting Life Of Good Faith As An Independent Liability Rule, Robert B. Thompson

NYLS Law Review

No abstract provided.

Anand V. Kapoor, David Pepper

NYLS Law Review

No abstract provided.

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …

Introduction: Governing Civil Society, Dana Brakman Reiser, Claire R. Kelly

Faculty Scholarship

No abstract provided.

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Creating Bright-Line Rules For Tribal Court Jurisdiction Over Non-Indians: The Case Of Trespass To Real Property, Grant Christensen

American Indian Law Review

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties - tribal, state, and federal - are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed to federal courts. I offer this piece to propose a new and novel solution - that tribal courts, through a piecemeal process, be extended absolute civil jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most …

Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber

All Faculty Scholarship

In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Brief Remarks On Intersocietal Responsibility And Canada’S Honour In The Case Of Angelica Choc V. Hudbay Minerals Inc., Craig Scott

Editorials and Commentaries

"These remarks were presented in Toronto on December 1, 2010, at a press conference convened by the Toronto law firm of Klippensteins, who represent Angelica Choc, the widow of Adolfo Ich Chamán."

An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica

UF Law Faculty Publications

It is rare that a court as sophisticated as the Florida Supreme Court casually makes a fundamental mistake in an important area of the law. Unfortunately, Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009) represents one of these unusual instances. The Court was faced with a simple question: may evidence pertaining to a prior settlement be offered at trial when it is relevant to something other than liability or the invalidity or amount of the pending claim. The universal answer under both federal law and the law of other states is yes, as long as …

Introduction: Civil Legal Representation, Lisa E. Brodoff

Seattle Journal for Social Justice

No abstract provided.