Civil Procedure Commons^™

Some Limitations Of Experimental Psychologists' Criticisms Of The American Trial, Robert P. Burns

Chicago-Kent Law Review

For decades, psychologists have conducted experiments that have suggested severe limitations on human cognitive capacities. Many have suggested that these results have important, and largely negative, consequences for an assessment of the reliability of the American trial. They have pointed persuasively at the disturbing number of exonerations of those convicted after trial. And some have gone on to make specific proposals for the incremental, and sometimes radical, changes in the conduct of the adversary trial. This essay places these studies, as forcefully presented by Professor Dan Simon, in a normative context, and argues that they are more powerful in suggesting …

Ears Of The Deaf: The Theory And Reality Of Lay Judges In Mixed Tribunals, Sanja Kutnjak Ivković

Chicago-Kent Law Review

This paper explores mixed tribunals, a unique form of lay participation in which lay and professional judges make legal decisions jointly. A short overview of different types and sizes of mixed tribunals around the world will be discussed first. Then, the paper will elaborate on the theoretical arguments that hypothesize about the nature and extent of interaction in mixed tribunals. These theoretical arguments, developed using the status characteristics theory, will be assessed using the evidence obtained in empirical studies of mixed tribunals. In addition, the paper will discuss other potential challenges faced by mixed tribunals. In the end, the paper …

Preventing Juror Misconduct In A Digital World, Thaddeus Hoffmeister

Chicago-Kent Law Review

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …

The Politics Of Procedure: An Empirical Analysis Of Motion Practice In Civil Rights Litigation Under The New Plausibility Standard, Raymond H. Brescia, Edward J. Ohanian

Akron Law Review

This Article attempts to assess, empirically, whether the Court’s introduction of the so-called “plausibility standard” in the context of civil pleadings has had a disparate impact on civil rights claims, particularly in employment and housing discrimination cases. In a previous study conducted by one of the co-authors of this Article, it was revealed that in a sample of employment and housing discrimination cases, courts were more likely to dismiss these cases based on the lack of specificity of the pleadings after the Court’s decision in Iqbal. Furthermore, that study also found, after Iqbal, a significant rise in both the number …

Personal Jurisdiction: A Doctrinal Labyrinth With No Exit, Simona Grossi

Akron Law Review

My goal is not to categorize, critique, or refine existing doctrine, but to challenge the idea that the Supreme Court’s case-by-case approach to personal jurisdiction represents an arc of progress. In my view, all too often the Court’s apparent refinements operate as detours from the fundamental principles at stake. The result is a clutter of doctrinal tests that is inconsistent with principle and confuses more than it informs. In Part II, I briefly explore the traditional bases of jurisdiction and the Court’s elaboration of the minimum contacts test in International Shoe Co. v. State of Washington. 9 Here, I show …

Summary Of Nutton V. Sunset Station, Inc., 131 Nev. Adv. Op. 34 (June 11, 2015), Joseph Meissner

Nevada Supreme Court Summaries

The Court determined the proper relationship between NRCP 15(a) and NRCP 16(b), and explored whether a proposed amendment under NRCP 15(a) can be deemed “futile” because it is unsupported by, or contradicts, factual evidence produced during discovery.

Summary Of Provincial Gov’T Of Marinduque V. Placer Dome, Inc., 131 Nev. Adv. Op. 63076 (June 11, 2015), Stacy Newman

Nevada Supreme Court Summaries

The Court affirmed the district court's order dismissing the complaint for forum non conveniens. The Court found the lower court properly gave less deference to the respondent’s choice of a Nevada forum and did not abuse its discretion by dismissing the case because the case lacked any bona fide connection to this state, adequate alternative fora existed, and the burdens of litigating in Nevada outweighed any convenience to the respondent. Furthermore, the Court held the district court imposed appropriate conditions on dismissal to ensure the existence of an adequate alternative forum for this litigation.

Summary Of Berry V. Feil, 131 Nev. Adv. Op. 37 (June 11, 2015), Patrick Phippen

Nevada Supreme Court Summaries

The exhaustion requirement applies regardless of what court the complaint is filed in, and that a state court has no discretion to stay a § 1983 action to allow for administrative remedies to be pursued.

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

Summary Of Fulbrook V. Allstate Ins. Co., 131 Nev. Adv. Op. 33 (Jun. 4, 2015), Walter Fick

Nevada Supreme Court Summaries

The Court held that appellant’s counsel’s “technical difficulties,” with regard to e-mails and case files, was an insufficient basis on which to recall remittitur, because the technical difficulties were unrelated to Nevada’s electronic filing system, which exclusively provides required notifications to counsel.

Creativity Inspired Community: A Practice And Process For Growing Communities Through Group Creativity, David Eyman

Creativity and Change Leadership Graduate Student Master's Projects

This project explores the use of group creativity practices to support changing attitudes and the formation of cohesive communities in civic and business settings. More specifically this project explores the use of a predetermined sequence of group creativity tools to facilitate a change in participant mentality. The attitudinal shift is from self-serving to engaged and collaborative. The ultimate outcome of using the proposed framework is the bonding of incompatibly opinionated people into a solidified community that is responsible for implementing their novel ideas. Ideas formed within this process are a reflection of the individual’s personal life objectives as they relate …

The American Jury System: A Synthetic Overview, Richard O. Lempert

Articles

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

New Limits On General Personal Jurisdiction: Examining The Retroactive Application Of Daimler In Long-Pending Cases, Brooke A. Weedon

Washington and Lee Law Review

No abstract provided.

A New Generation Of Class Action Cy Pres Remedies: Lessons From Washington State, Cecily C. Shiel

Washington Law Review

The use of cy pres as a mechanism to distribute residual funds in class actions has become increasingly common and the subject of much controversy. In the class action context, cy pres is an equitable remedy used by courts to appropriate class action settlement funds remaining after all identified class parties have been compensated to the funds’ “next best use,” usually to a charity. The controversy has stemmed primarily from a lack of clear judicially enforced standards on how and when to use cy pres. In light of recent controversy, both the Federal Rules Committee, and potentially the Supreme Court, …

"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the …

Summary Of Catholic Diocese Of Green Bay, Inc. V. John Doe 119, 131 Nev. Adv. Op. 29 (May 28, 2015), Adam Wynott

Nevada Supreme Court Summaries

The Court held a plaintiff must prove sufficient contacts with the jurisdiction in order to establish personal jurisdiction over a defendant. Without proof of sufficient contacts, Nevada courts do not have personal jurisdiction over a foreign Catholic diocese. The Court reversed the district court’s decision.

Summary Of Weddell V. Sharp, 131 Nev. Adv. Op. 28 (May 28, 2015), Ashleigh Wise

Nevada Supreme Court Summaries

The Court held that a defendant may raise a defense of claim preclusion against a plaintiff’s complaint even when that defendant was not a party or privy with a defendant in an earlier action brought by the plaintiff. The Court modified the privity requirement established in Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 194 P.3d 709 (2008) to incorporate nonmutual claim preclusion.