Procedural Triage,
2015
Harvard Law School
Procedural Triage, Matthew J.B. Lawrence
Fordham Law Review
Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …
"A Distinction Without A Difference"?: Bartlett Going Forward,
2015
Fordham University School of Law
"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz
Fordham Law Review
This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …
Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015),
2015
Nevada Law Journal
Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson
Nevada Supreme Court Summaries
The Court of Appeals considered an appeal from a district court order denying the plaintiff’s post-trial motion for a new trial, which alleged that the defendant’s attorney committed misconduct during closing arguments at trial. The Court held that the district court failed to make the detailed findings required by the Nevada Supreme Court for claims of attorney misconduct and remanded the case for the district court to reconsider the matter and make the necessary findings.
William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015),
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll
Nevada Supreme Court Summaries
The Court considered an appeal from a district court order dismissing a medical malpractice complaint. The Court held that because NRS § 41A.071 creates threshold requirements for bringing medical malpractice suits, it must be construed consistently with the liberal pleading requirements. The Court reversed and remanded.
Joanna T. V. Nevada, 131 Nev. Adv. Op. 77 (Sep 24, 2015),
2015
Nevada Law Journal
Joanna T. V. Nevada, 131 Nev. Adv. Op. 77 (Sep 24, 2015), Audra Powell
Nevada Supreme Court Summaries
The court considered whether NRCP 4(i)’s 120 day requirement for service of a summons applied to cases filed under NRS § 432B, for protection of children from neglect and abuse. The court held that the 120 day requirement does not apply to cases filed under 432B and denied the petition for a writ of mandamus to order the juvenile court to dismiss an abuse-and-neglect petition on that premise.
In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015),
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby
Nevada Supreme Court Summaries
The Court heard an appeal from a parent-appellant challenging a district court’s exercise of temporary emergency jurisdiction to appoint a temporary, non-parent, guardian and general, non-parent, guardian. Affirmed.
Watson Rounds V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 79 (Sept. 24, 2015),
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
Watson Rounds V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 79 (Sept. 24, 2015), Lena Rieke
Nevada Supreme Court Summaries
NRS 7.085 allows a district court to make an attorney personally liable for the attorney fees and costs an opponent incurs when the attorney files, maintains or defends a civil action that is not well-grounded in fact or is not warranted by existing law or by a good faith argument for changing the existing law. The Court considered (1) whether NRCP 11 supersedes NRS 7.085 in sanctioning a law firm and (2) whether the district court abused its discretion in sanctioning the law firm under under NRS 7.085. The Court held NRCP 11 does not supersede NRS § 7.085 because …
The Discovery Sombrero And Other Metaphors For Litigation,
2015
The Catholic University of America, Columbus School of Law
The Discovery Sombrero And Other Metaphors For Litigation, William H. J. Hubbard
Catholic University Law Review
Little is known about discovery costs in civil litigation, particularly in regard to preservation—the duty to preserve relevant information when litigation is reasonably anticipated. This article is one of the first to present and analyze empirical evidence on the nature and costs of preservation and discovery. Using this data, the author proposes three new metaphors for civil litigation: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. These metaphors help demonstrate the sometimes surprising ways that the Erie doctrine, the role of technology in litigation, and the Federal Rules’ commitment to transsubstantivity interact with current challenges …
Walk A Mile In The Shoes Of A Copyright Troll: Analyzing And Overcoming The Joinder Issue In Bittorrent Lawsuits,
2015
Pepperdine University
Walk A Mile In The Shoes Of A Copyright Troll: Analyzing And Overcoming The Joinder Issue In Bittorrent Lawsuits, Kristina Unanyan
The Journal of Business, Entrepreneurship & the Law
This Comment analyzes the issues surrounding joinder of copyright infringers who use BitTorrent, explores how joinder can be used and limited to create a more viable solution for copyright holders and consumers, as well as, supplements the sparse regulations that encompass joinder to create a rule that accommodates this technological era. Part II explains Copyright Law and the procedural aspects of a copyright infringement suit and joinder of defendants. Part III delves into the history of peer-to-peer (P2P) file-sharing lawsuits and provides an illustration of where case law rests today regarding P2P networks. Part IV describes the BitTorrent network and …
Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015),
2015
Nevada Law Journal
Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey
Nevada Supreme Court Summaries
The Court held that when a district court dismisses a complaint but gives the plaintiff leave to amend the order it is not a final appealable judgment. In order for it to be a final appealable judgment, a plaintiff must give the district court written notice within 30 days that the plaintiff will not amend the complaint so the district court may enter a final, appealable order.
Keep On Truckin', Uber: Using The Dormant Commerce Clause To Challenge Regulatory Roadblocks To Tncs,
2015
Washington and Lee University School of Law
Keep On Truckin', Uber: Using The Dormant Commerce Clause To Challenge Regulatory Roadblocks To Tncs, Boris Bindman
Washington and Lee Law Review Online
No abstract provided.
Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson,
2015
The University of Akron
Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell
Akron Law Review
In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles,
2015
The University of Akron
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
Akron Law Review
T HE REVOLUTION IS HERE! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, …
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles,
2015
The University of Akron
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
Akron Law Review
The revolution is here! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, which …
Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists,
2015
The University of Akron
Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes
Akron Law Review
With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …
Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards,
2015
Duke Law
Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards, Arjun Rangarajan
Duke Law & Technology Review
The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity …
The Prevailing Party Should Recover Counsel Fees,
2015
The University of Akron
The Prevailing Party Should Recover Counsel Fees, Michael F. Mayer, Wayne Stix
Akron Law Review
THE TIME HAS COME when our judicial system should make compensation to the prevailing party for expenses incurred in litigation a meaningful right, as opposed to a valueless gesture. In brief, this means that in the bulk of civil cases a successful party should no longer have to bear the full burden of his own counsel fees, and conversely those who take to our courts in vain should no longer be permitted to avoid the justice of substantial participation in the costs they have occasioned. To do this requires considerable alteration of the present cost structure applied by our rules …
Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015),
2015
Nevada Law Journal
Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen
Nevada Supreme Court Summaries
On an issue of first impression, the Nevada Supreme Court held that the filing of a post-judgement motion which tolls the time to appeal also tolls NRCP 54(d)(2)(B)’s 20-day deadline to move for attorney fees. The Court further concluded that (a) the $100,000 offset in Hollier’s favor was not extinguished by the Court’s previous order and (b) only Acadian Realty is liable for attorney fees.
Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren,
2015
The University of Akron
Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski
Akron Law Review
"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …
Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin,
2015
The University of Akron
Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger
Akron Law Review
Some federal courts have followed the rule that amendments to correct misnomer or misdescription of a defendant will relate back where the proper defendant is in court. An amendment which substitutes or adds a new party, however, creates a new cause of action, and under such circumstances, there is normally no relation back to original filing for purposes of limitations.' Since the 1966 amendment of rule 15(c), however, a number of courts have permitted amendments substituting defendants after the statute of limitations has run.
