Civil Procedure Commons^™

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.

Obtaining International Judicial Assistance Under The Federal Rules And The Hague Convention On The Taking Of Evidence Abroad In Civil And Commercial Matters: An Exposition Of The Procedures And A Practical Example: In Re Westinghouse Uranium Contract Litigation, Robert J. Augustine

Georgia Journal of International & Comparative Law

No abstract provided.

Sanctions For Frivolous Civil Appeals In Louisiana, Gail S. Stephenson

Louisiana Law Review

The article offers information related to sanctions for frivolous civil appeals under Louisiana Code of Civil Procedure article 2164 in Louisiana. Topics discussed include court case of Parker v. Interstate Life & Accident Insurance Co., penalties for frivolous appeal will not be imposed unless clearly due, and creating an exception to the rule.

Thirty-Two Years On The Federal Bench: Some Things I Have Learned, Judge Emmett Ripley Cox

Florida Law Review

In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes a real burden on the federal courts. This proliferation has negatively affected pleading and pretrial procedures in the federal court system. Additionally, he discusses what lawyers can do about these pleading and pretrial problems.

Over the course of his career Judge Cox have …

Determining Trademark Standing In The Wake Of Lexmark, John L. Brennan

Notre Dame Law Review

This Note examines relevant statutory language, case law, and scholarly criticism, and ultimately contends that the standard articulated in Lexmark should apply to both types of claims. Part I provides background regarding the history of the Lanham Act, looking particularly at the ways in which courts have treated trademarks and false advertising differently. Part II discusses the Lexmark decision and the recent district court cases that have addressed its holding. Part III examines the text of both the Lanham Act and the Supreme Court’s opinion in Lexmark in order to determine the decision’s scope, and concludes that Lexmark’s holding …

Saving Charitable Settlements, Christine P. Bartholomew

Fordham Law Review

    This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly …

The Revolutionary War Prize Cases And The Origins Of Diversity Jurisdiction, Deirdre Mask, Paul Macmahon

Buffalo Law Review

No abstract provided.

Snap Judgment: Recognizing The Propriety And Pitfalls Of Direct Judicial Review Of Audiovisual Evidence At Summary Judgment, Denise K. Barry

Fordham Law Review

    Conflicting results in two recent police excessive force decisions by the U.S. Supreme Court—Tolan v. Cotton and Plumhoff v. Rickard—have sown confusion about the standards for summary judgment. This Note shows how the two decisions are consistent with each other and with longstanding summary judgment precedents. The key insight is that since the Second Circuit’s iconic 1946 decision in Arnstein v. Porter, appellate judges, including Supreme Court Justices, have listened to audio recordings, scrutinized artwork, and—as in the case of Plumhoff—watched video footage in order to decide for themselves whether there is a genuine issue of …

Viewing Privilege Through A Prism: Attorney-Client Privilege In Light Of Bulk Data Collection, Paul H. Beach

Notre Dame Law Review

This Note will argue that the attorney-client privilege is justified not only by the popular instrumentalist rationales, but also by noninstrumentalist thinking. It will further argue that Federal Rule of Evidence 502 gives federal courts the tools to protect the attorney-client privilege in light of bulk data collection. Even where courts do not find that traditional modes of communication constitute reasonable steps to protect a confidential communication, general considerations of fairness—as noted in Rule 502’s committee notes—should encourage courts to uphold attorney-client privilege in future situations of bulk data collection disclosures. Part I will discuss the establishment, development, and operations …

Foreign Sovereign Immunity - Rex V. Cia. Pervana De Vapores, S.A., Richard O. Ward

Georgia Journal of International & Comparative Law

No abstract provided.

Minimum Contacts Jurisdiction Under The Foreign Sovereign Immunities Act, Eric Johnson, Chrisanne Worthington

Georgia Journal of International & Comparative Law

No abstract provided.

The Conflict Between Forum-Selection Clauses And State Consumer Protection Laws: Why Illinois Got It Right In Jane Doe V. Match.Com, Marty Gould

Chicago-Kent Law Review

To what extent can companies “contract out” of state consumer protection statutes through the use of choice of law and forum selection clauses in standard form adhesion contracts? The only court in Illinois to rule on the issue, a state court case dealing with Match.com, held that the Illinois Dating Referral Services Act (IDRSA) voids forum-selection clauses contrary to stated Illinois public policy, as declared by Illinois statutes. Outside of Illinois, however, federal courts have held that the exact same Match.com forum-selection clause was valid and enforceable despite being in direct conflict with similar statutes in other states. These cases …

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.

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.

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 …

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 …