Civil Procedure Commons^™

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Georgia Law Review

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia's superior courts is not as demanding as the preliminary injunction standard in Georgia's federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia's courts; the moving party need not prove all four of …

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

Scholarly Works

This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.

Gonzalez V. State, 131 Nev. Adv. Op. 99 (Dec. 31, 2015), Chelsea Stacey

Nevada Supreme Court Summaries

The Court, sitting en banc, determined that by failing to answer questions from the jury that suggested confusion on a significant element of the law, failing to give an accomplice-distrust instruction, and by not bifurcating the guilt phase from the gang enhancement phase the district court violated the defendant’s right to a fair trial.

Scott V. First Jud. Dist. Ct., 131 Nev. Adv. Op. 101 (Dec. 31, 2015), Adrian Viesca

Nevada Supreme Court Summaries

The Court determined that Carson City Municipal Code (“CCMC”) 8.04.050(1) is (1) unconstitutionally overbroad because it “is not narrowly tailored to prohibit only disorderly conduct or fighting words” and (2) vague because it lacked sufficient guidelines and gave the police too much discretion in its enforcement.

Fergason V. Las Vegas Metropolitan Police Dept., 131 Nev. Adv. Op. 94 (Dec. 31, 2015), Lena Rieke

Nevada Supreme Court Summaries

The Court determined (1) the district court erred in granting summary judgment to the State because the State failed to present evidence demonstrating no genuine issue of material fact existed as to whether the funds it seized from petitioner’s bank accounts were subject to forfeiture as proceeds attributable to the petitioner’s commission of a felony; (2) the State’s forfeiture of funds seized from a bank account will not stand without evidence connecting the funds to criminal activity; and (3) NRS § 179.1173(4) requires the State to prove by clear and convincing evidence the property is subject to forfeiture.

The Court …

In Re P.S., 131 Nev. Adv. Op. 95 (Dec. 24, 2015), Rob Schmidt

Nevada Supreme Court Summaries

The Supreme Court of Nevada held that under NRS § 62B.030 the district court has discretion over whether to conduct a hearing de novo after reviewing the recommendations of a master of the juvenile court when timely requested.

Harrison V. Roitman, 131 Nev. Adv. Op. 92 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that absolute immunity applies to party-retained expert witnesses as well as court appointed witnesses. Party-retained expert witnesses have absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

State, Emp’T. Sec. Div. V. Murphy, 132 Nev. Adv. Op. 18 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that employees who are terminated from employment for absence due to incarceration, and are later convicted of a crime, are not eligible for unemployment benefits. These employees are contrasted with those who are incarcerated, but remained incarcerated due to indigence, or were not convicted due to unsupported charges. The latter group may be eligible for unemployment benefits.

The Merits Of Third-Party Standing, Brian Charles Lea

William & Mary Bill of Rights Journal

When can a litigant assert someone else’s rights in federal court? The courts currently purport to adhere to a “prudential” justiciability rule barring such “thirdparty standing.” But the Supreme Court has devised exceptions—jus tertii standing and First Amendment overbreadth—under which courts can ignore that rule. The Court has never explained the source of that remarkable judicial power to choose what rights litigants can assert. The doctrine of third-party standing is, in short, an undertheorized muddle. Thankfully, the Court suggested in its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., that it might soon try to bring order …

Radio Kol Baramah V. Kolech – Religious Women’S Forum, Yoram Danziger, Daphne Barak-Erez, Esther Hayut

Translated Opinions

The District Court certified the application of Kolech – Religious Women’s Forum Organization (hereinafter: Kolech) to bring a class action against the radio station Kol BaRamah Ltd. (hereinafter: the radio station), holding that the declared policy adopted by the radio station in the years 2009-2011, whereby women could not be heard on the station’s broadcasts, constituted prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: Prohibition against Discrimination Law). (It should be noted that the change in the management of the radio station as of the year …

Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that the six-month deadline to set aside a voluntary dismissal or settlement agreement found within NRCP 60(b) could not be extended, despite an allegation of fraud.

Mcdonald Carano Wilson, Llp. V. Bourassa Law Group, 131 Nev. Adv. Op. 90 (December 3, 2015), Patrick Caddick

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order. The Court reversed and remanded the district court’s ruling that NRS § 18.015 does not allow an attorney to enforce a charging lien when the attorney withdrew from representation.

Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert

Articles

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that …

In Re Guardianship Of Hailu, 131 Nev. Adv. Op. 89 (Nov. 16, 2015), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determined that under NRS § 451.007 (the Uniform Determination of Death Act) the District court failed to consider whether the American Association of Neurology (AAN) guidelines adequately measure all functions of the entire brain and whether the guidelines are considered accepted medical standards by states that have adopted the Act.

Wph Architecture, Inc. V. Vegas Vp, Lp., 131 Nev. Adv. Op. 88 (Nov. 5, 2015), Emily Dyer

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 68, NRS § 17.115, and NRS § 18.020, which allow costs and fees to be awarded in several types of district court cases, do not require an arbitrator to award fees and costs after an offer of judgment has been made; and (2) NRCP 68, NRS § 17.115, and NRS § 18.020 are substantive in their application to arbitration proceedings.

Civil Practice And Procedure, John R. Walker, Jaime B. Wisegarver

University of Richmond Law Review

No abstract provided.

The "Test"--Or Lack Thereof--For Issuance Of Virginia Temporary Injunctions: The Current Uncertainty And A Recommended Approach Based On Federal Preliminary Injunction Law, Hon. David W. Lannetti

University of Richmond Law Review

No abstract provided.

On Regulatory Discord And Procedure, Elizabeth Chamblee Burch

Scholarly Works

Businesses are increasingly global. But domestic courts’ jurisdiction remains largely provincial; both public and private regulators have overlapping, mismatched authority. Regulatory discord is readily apparent in consumer protection cases. When the Dodd-Frank Wall Street Reform and Consumer Protection Act empowered state regulators while simultaneously creating an encompassing federal regulator—the Consumer Financial Protection Bureau—it further contributed to overlap between federal agencies, states, and private litigation.

Whether this regulatory magnetism is optimal in terms of fundamental goals like compensation and deterrence is a hotly debated normative and empirical question. Yet, one need not wade too far into the substantive debate to appreciate …

Constructing Issue Classes, Elizabeth Chamblee Burch

Scholarly Works

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — …