Civil Procedure Commons^™

Bigger Isn’T Always Better: An Analysis Of Court Efficiency Using Hierarchical Linear Modeling, Teresa Dalton, Jordan M. Singer

Pace Law Review

One important measure of trial court efficiency is overall case length—that is, the elapsed time from a case’s initial filing to its final disposition. Using a large, recent dataset from nearly 7000 federal civil cases, we find that two variables are particularly useful in predicting overall case length: the total number of attorneys filing an appearance in the case, and the number of authorized judgeships for a given district court. Further, we find a significant and surprising interaction between these two variables, indicating that smaller courts are more efficient than larger courts at processing civil cases when more than three …

Taxpayers’ Lack Of Standing In International Tax Dispute Resolutions: An Analysis Based On The Hybrid Norms Of International Taxation, Limor Riza

Pace Law Review

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim …

Reexamining The Seventh Amendment Argument Against Issue Certification, Douglas Mcnamara, Blake Boghosian, Leila Aminpour

Pace Law Review

Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, …

Amended Complaints Post-Twiqbal: Why Litigants Should Still Get A Second Bite At The Pleading Apple, Dane Westermeyer

Washington Law Review

The Supreme Court’s landmark decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had a serious effect on the way that Rule 12(b)(6) Motions to Dismiss are handled in federal courts across the country. In the five years since Iqbal was handed down, scholars and practitioners alike have discussed the merits and effects of this decision at length. However, there has been very little—if any—discussion on the relationship between amended complaints and original complaints when it comes to this newly-minted plausibility standard. This Comment aims to examine and critique a post-Twiqbal practice regarding amended complaints that …

Summary Of Valdez V. Cox Commc’Ns Las Vegas, 130 Nev. Adv. Op. 89, Stephen Davis

Nevada Supreme Court Summaries

The Court determined that: (1) under NRCP 21, when claims are severed, two separate actions exist and severed claims may be appealed before resolution of the other, non-severed claims; and (2) a final order for severed claims need not be certified under NRCP 54(b) before appeal.

Class Is In Session: The Third Circuit Heightens Ascertainability With Rigor In Carrera V. Bayer Corp., Stephanie Haas

Villanova Law Review (1956 - )

No abstract provided.

The New York Court Of Appeals Visits (And Then Revisits) The Preclusive Impact Of Administrative Findings Of Fact In Subsequent State Court Actions, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, 3 N.E.3d 682 (N.Y. 2013), recognizes that administrative proceedings which take the form of “quasi-judicial” determinations may sometimes be given preclusive impact in subsequent judicial proceedings provided that the identity of issue and full and fair opportunity requirements of collateral estoppel or issue preclusion are satisfied. The decision also recognizes that administrative determinations made without the benefit of rules of evidence, pre-trial disclosure and motion practice should be given very limited affect in subsequent judicial proceedings. The fact that the Empire State’s highest court unanimously reversed itself …

Reforming The Consumer Class Action, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch was part of a panel on Reforming the Consumer Class Action. This was part of a conference entitled: The Future of Class Action Litigation: A View From the Consumer Class that took place at the New York University School of Law on November 7, 2014

Civil Practice And Procedure, Andrew P. Sherrod, Jaime B. Wisegarver

University of Richmond Law Review

This article surveys recent significant developments in Virginia civil practice and procedure. Part I of this article discusses opinions of the Supreme Court of Virginia from June 2013 through June 2014 addressing noteworthy civil procedure topics. Part II addresses amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period. PartIII discusses legislation enacted by the Virginia General Assembly during its 2014 session that relates to civil practice.

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

No abstract provided.

A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar

Michigan Law Review

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and their shareholders without producing proportionate benefits. Both are largely the result of the agency problem between shareholders and their attorneys, driven more by the attorneys’ interests in generating fees than by the interests of their clients. In response to each of these problems, commentators have recommended a number of solutions. Chief among them are forum selection and mandatory arbitration provisions in a corporation’s charter or bylaws. This Note recommends that corporations unilaterally adopt both forum selection and mandatory arbitration bylaws to address shareholder lawsuits under state …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Scholarship

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of “ripeness” requiring most Fifth Amendment regulatory-takings claimants to seek “just compensation” in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora’s box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs the …

Reviving The Civil Jury Trial: Implementing Short, Summary, And Expedited Trial Programs, Robert A. Patterson

BYU Law Review

No abstract provided.

Summary Of Fdic V. Rhodes, 130 Nev. Adv. Op. 8, Aleem A. Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) 12 U.S.C. § 1821(d)(14)(A) (the “FDIC extender statute”)[1] preempts any similarly applicable state law, in this case NRS 40.4055(1)[2]; and (2) the Court refused to adopt a rule that a state statute of repose cannot be preempted by federal law.

[1] “Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA),…the [FDIC] acts as a "conservator or receiver" for failed financial institutions. 12 U.S.C. § 1821(d)(2)(A) (2012). FIRREA extends

the time period for the FDIC, in its capacity as the failed institution's conservator or receiver, to bring a contract claim …

To Be Or Not To Be: The Forum Non Conveniens Performance Acted Out On Anglo-American Courtroom Stages, Alan Reed

Georgia Journal of International & Comparative Law

No abstract provided.

Law In Ancient Egyptian Fiction, Russ Versteeg

Georgia Journal of International & Comparative Law

No abstract provided.

Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis

Florida Law Review

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determin[ing] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …

Summary Of D.R. Horton V. Betsinger, 130 Nev. Adv. Op. 84, Gil Kahn

Nevada Supreme Court Summaries

The Court determined that even when a case is remanded only in order for a trier of fact to determine the amount of punitive damages, NRS 42.005(3) requires that same trier of fact to first determine whether such damages are warranted.

Summary Of Oxbow Constr. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 86, Erik Foley

Nevada Supreme Court Summaries

The Court determined that (1) previously leased units become a “residence” under NRS 40.630 when their titles are later transferred to a home purchaser; (2) units previously leased prior to transfer of title to a purchaser are not considered “new” under NRS 40.615; and (3) where there is at least one “new residence” in a multiple unit building, relief is available for construction defects in the limited common areas assigned to that building.

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …