Civil Procedure Commons^™

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

Trending @ Rwu Law: Professor Niki Kuckes's Post: Litigation Academy Returns, Niki Kuckes

Law School Blogs

No abstract provided.

An Appeal To Common Sense: Why "Unappealable" District Court Decisions Should Be Subject To Appellate Review, Matthew D. Heins

Northwestern University Law Review

28 U.S.C. § 1291 vests jurisdiction in the United States Circuit Courts of Appeal to hear “appeals from all final decisions of the district courts of the United States.” Various circuit courts have, however, determined that they may only hear appeals of final “judicial” decisions, and that they do not have jurisdiction to hear appeals from final decisions of United States district courts if those decisions are “administrative.” Circuit courts have been loath to explicitly define the dividing line between the two classes of case, and have frequently invoked the potential availability of mandamus review as a means of placating …

Is Limited Remand Required If The District Court Admitted Or Excluded Evidence Without A Daubert Analysis?, Robert B. Gilbreath

The Journal of Appellate Practice and Process

No abstract provided.

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

Faculty Scholarship

The Supreme Court's unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito's opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.

This article for the Hastings Law Journal's symposium on …

Group Agency And Legal Proof; Or, Why The Jury Is An “It”, Michael S. Pardo

William & Mary Law Review

Jurors decide whether certain facts have been proven according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent with agency that …

The Dynamic Allocation Of Burden Doctrine As A Mitigation Of The Undesirable Effects Of Iqbal’S Pleading Standard, Nicolás J. Frías Ossandón

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

The Third Circuit Lays Another Trap For Unsuspecting Employers: Lupyan V. Corinthian Colleges Inc., Keely Jac Collins

Villanova Law Review (1956 - )

No abstract provided.

Summary Of Breeden V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 12, Erik Foley

Nevada Supreme Court Summaries

The Court held that an appellant who voluntarily dismisses a non-frivolous writ petition, after an answer has been filed, cannot be required to pay the appellee’s attorney’s fees as a condition of the dismissal.

Summary Of Jed Prop. V. Coastline Re Holdings Nv Corp., 131 Nev. Adv. Op. 11, Katherine Frank

Nevada Supreme Court Summaries

The Court determined that NRS 107.082(2) does not require a trustee to give notice of a sale pursuant to NRS 107.080 that has been postponed by oral proclamation three times “unless, after the third oral postponement has been given, the sale's date, time, or place is later changed.”

Digging Up The Corp(Ses): Holston Investments V. Lanlogistics Corp. And The Continuing Struggle To Determine The Citizenship Of Dissolved And Inactive Corporations For The Purposes Of Diversity Jurisdiction, Nicholas W. Roosevelt

Northwestern University Law Review

Since the early 1990s, the U.S. Circuit Courts of Appeals have been divided on how to determine the citizenship of dissolved or inactive corporations for the purposes of diversity jurisdiction. By the beginning of the twenty-first century, courts of appeals addressing the issue had settled on one of three conclusions: (1) citizenship should be determined only by the corporation’s state of incorporation; (2) citizenship should be determined both by the corporation’s state of incorporation and its last principal place of business; or (3) citizenship should always be determined by the corporation’s state of incorporation, but only be determined by principal …

Determining When Extrinsic Evidence Not Attached To Or Incorporated By Reference In A Pleading May Be Considered On A Rule 12 Dismissal Motion, Laurence A. Steckman, Rita D. Turner

Touro Law Review

No abstract provided.

Revisiting Claim And Issue Preclusion In Washington, Kathleen M. Mcginnis

Washington Law Review

When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements …

Removal Jurisdiction Over Mass Actions, Mallory A. Gitt

Washington Law Review

The mass action provision in the Class Action Fairness Act of 2005 provides a federal forum for certain state court litigation that resembles class actions but otherwise could not be removed. The provision is triggered when state court plaintiffs propose a joint trial of common legal or factual issues. But defining what constitutes that triggering event has proved difficult for federal courts. They have not used a uniform framework to determine when they have subject matter jurisdiction over the purported mass action, and have lacked a common interpretation of the statutory language to begin the inquiry. That lack of coherence …

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Nevada Law Journal

No abstract provided.

At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld

Articles

On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Cornell Law Faculty Publications

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could …

Summary Of Martinorellan V. State, 131 Nev. Adv. Op. 6, Gil Kahn

Nevada Supreme Court Summaries

The Court determined that (1) a district court's failure to instruct the jury to restart deliberations when an alternate juror replaces an original juror is an error of constitutional dimension; (2) unpreserved errors are reviewed for plain error regardless of whether they are of constitutional dimension; (3) A prejudicial error can result if most of the jury’s deliberation time takes place before the error related to the replacement of an original juror occurs.

Newsroom: A Farewell To Professor Kent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.