Posnerian Hearsay: Slaying The Discretion Dragon,
2015
University of Oklahoma College of Law
Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter
Faculty Articles
Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a …
The Fifth Circuit In Texas V. United States Chose And Advocated The Term “Illegal Alien”,
2015
Florida A&M University College of Law
The Fifth Circuit In Texas V. United States Chose And Advocated The Term “Illegal Alien”, Maritza I. Reyes
Journal Publications
No abstract provided.
Supplemental Standing For Severability,
2015
Northwestern Pritzker School of Law
Supplemental Standing For Severability, Erik R. Zimmerman
Northwestern University Law Review
The Supreme Court has recently insisted that plaintiffs must have standing for every claim that they raise. But this claim-specific approach to standing is at odds with established practice in several contexts, including rulings on the severability of statutes. Courts often permit plaintiffs to claim that statutory provisions should be invalidated pursuant to severability doctrine, without requiring that they have standing for those claims. This Article argues that existing practice for severability is a form of “supplemental standing.” Supplemental standing is analogous to supplemental jurisdiction. It allows a plaintiff with standing for one claim to raise related claims, even if …
The Supreme Court's New Approach To Personal Jurisdiction,
2015
University of Akron School of Law
The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin
Akron Law Faculty Publications
In the Supreme Court’s recent general jurisdiction cases, it narrowed general jurisdiction in accord with a “reasonableness” approach to jurisdiction that is consistent with International Shoe’s so-called “forward-looking” face. In the Court’s most recent specific jurisdiction case, Walden v. Fiore, the Court took steps toward assessing specific jurisdiction under a reasonableness analysis, but it ultimately reunited the antagonistic “reasonableness” and territorial power theories to impose artificial limits on specific jurisdiction. The newly narrowed general jurisdiction will not often be available as a “safety valve” to provide jurisdiction in some cases in which jurisdiction would be reasonable under the circumstances. This …
Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market,
2015
University of Georgia School of Law
Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs
Scholarly Works
This Article unites two disparate subjects of profound interest to legal scholars. One is fraud-on-the-market, reaffirmed late last term in Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton II). Probably the most important claim in the securities litigation universe, fraud-on-the-market is the sine qua non of almost every securities class action that is filed. The other subject consists of the work of Judges Frank Easterbrook and Richard Posner, the “superstars” of the current federal appellate bench.
My purpose is several-fold: first, to show that fraud-on-the-market’s evolution, up through and culminating in Halliburton II, has been driven in significant measure …
The Jury's Constitutional Judgment,
2015
University of Georgia
The Jury's Constitutional Judgment, Nathan Chapman
Scholarly Works
Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?
This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …
Big Data And Predictive Reasonable Suspicion,
2015
American University Washington College of Law
Big Data And Predictive Reasonable Suspicion, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …
Limiting Access To U.S. Courts: The Supreme Court's New Personal Jurisdiction Case Law,
2015
Pacific McGeorge School of Law
Limiting Access To U.S. Courts: The Supreme Court's New Personal Jurisdiction Case Law, Michael Vitiello
McGeorge School of Law Scholarly Articles
No abstract provided.
Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution,
2015
St. John's University School of Law
Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh
Faculty Publications
The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …
Transnational Class Actions In The Shadow Of Preclusion,
2015
Cornell Law School
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Cornell Law Faculty Publications
The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …
Pennoyer Strikes Back: Personal Jurisdiction In A Global Age,
2015
Southern Methodist University, Dedman School of Law
Pennoyer Strikes Back: Personal Jurisdiction In A Global Age, William V. Dorsaneo Iii
Faculty Journal Articles and Book Chapters
The primary purpose of this Article is to evaluate the four most recent Supreme Court decisions on personal jurisdiction and situate those decisions within the history of Supreme Court personal jurisdiction jurisprudence. Starting with the seminal case of Pennoyer v. Neff, personal jurisdiction jurisprudence has been remarkably kaleidoscopic,with the Supreme Court intervening at various intervals to redefine the law in broad strokes, while zigzagging from one doctrinal position to another and thereby leaving lower courts to hash out the application of an evolving personal jurisdiction doctrine to varying fact patterns. I will divide this jurisprudential history into two main groups …
Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?,
2015
Southern Methodist University, Dedman School of Law
Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, Anthony J. Colangelo, Christopher R. Knight
Faculty Journal Articles and Book Chapters
This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are …
Civil-Izing Federalism,
2015
Seattle University School of Law
Civil-Izing Federalism, Brooke Coleman
Faculty Articles
When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the …
The Efficiency Norm,
2015
Seattle University School of Law
The Efficiency Norm, Brooke Coleman
Faculty Articles
Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that …
Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms,
2015
Seattle University School of Law
Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman
Faculty Articles
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change …
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters,
2015
Florida International University College of Law
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez
Faculty Publications
This article, which is based on the research conducted for the General Report ‘Relief in Small and Simple Matters in an Age of Austerity’ presented at the XV World Congress of Procedural Law, provides a contextualised and broad overview of these phenomena in the United States. After describing the general features of the federal and state judiciaries, including its adversarial model of judging, and the importance of the jury system, the article turns its attention to discuss the factors that affect the cost of litigation in the United States, the different models of litigation funding, the available legal aid mechanisms, …
From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies,
2015
Brooklyn Law School
From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga
Brooklyn Journal of International Law
Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …
Tort Reform And Jury Instructions,
2015
University of Tulsa College of Law
Tort Reform And Jury Instructions, Charles W. Adams
Articles, Chapters in Books and Other Contributions to Scholarly Works
This article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil OUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.
The Proper Standard Of Review For Required Party Determinations Under Federal Rule Of Civil Procedure 19,
2015
Fordham University School of Law
The Proper Standard Of Review For Required Party Determinations Under Federal Rule Of Civil Procedure 19, Brandon R. Coyle
Fordham Law Review
Rule 19 of the Federal Rules of Civil Procedure, concerning the required joinder of parties, ensures that all parties with an interest in an action are joined in the litigation. At any time during the suit, a court may determine that an absent party has a specific interest that requires its presence in the dispute. When the court cannot join the absent party, however, the court must use Rule 19(b) to determine whether to continue the litigation without the absentee or dismiss the suit entirely. Despite the potentially drastic consequence of dismissal, federal courts of appeals cannot agree on the …
Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost,
2015
Indiana University Maurer School of Law
Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla
Articles by Maurer Faculty
Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …
