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Some Preliminary Observations On The Proposed Eli/Unidroit Civil Procedure Project In The Light Of The Experience Of The Ali/Unidroit Project, Geoffrey C. Hazard Jr. 2014 UC Hastings College of the Law

Some Preliminary Observations On The Proposed Eli/Unidroit Civil Procedure Project In The Light Of The Experience Of The Ali/Unidroit Project, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.


Cy Pres And The Optimal Class Action, Jay Tidmarsh 2014 Notre Dame Law School

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Journal Articles

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the …


Trans-Personal Procedures, Roger Michalski 2014 University of Oklahoma College of Law

Trans-Personal Procedures, Roger Michalski

Faculty Articles

Recent court decisions have reignited a national debate about corporate personhood. This debate recognizes that the legal status of artificial persons is of great importance to the fabric of society, law, and politics. Questions about the status of artificial persons are typically raised in the context of substantive law, where corporate personhood has triggered strong reactions and important scholarship. But there is another, completely neglected side to this debate. The status of artificial entities is not solely negotiated in the context of substantive law. Procedure, similarly, must also choose whether to treat natural and artificial entities alike or not. This …


Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr. 2014 University of the Pacific McGeorge School of Law

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …


The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline Kim 2014 University of Michigan Law School

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline Kim

Scholarship@WashULaw

In 2011, the United States Supreme Court struck down a class action suit alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions, making it more difficult to obtain certification of private employment discrimination class actions. As a result, the role of the Equal Employment Opportunity Commission in seeking structural reform of the workplace, always of substantial influence, has gained in comparative importance. Yet there is remarkably little written about the EEOC’s large-scale injunctive cases. This Article addresses this major gap in scholarship. Using both qualitative case studies and a new quantitative data-set, we test existing theories …


Getting Serious: Why Companies Must Adopt Information Governance Measures To Prepare For The Upcoming Changes To The Federal Rules Of Civil Procedure, Philip J. Favro 2014 University of Richmond

Getting Serious: Why Companies Must Adopt Information Governance Measures To Prepare For The Upcoming Changes To The Federal Rules Of Civil Procedure, Philip J. Favro

Richmond Journal of Law & Technology

[W]ithout a corresponding change in discovery culture by courts, counsel and clients alike, the proposed rules modifications will likely have little to no effect on the manner in which discovery is conducted today.


Maryland Personal Jurisdiction Law In The Cyberspace Content, Saad Gul 2014 Saul Ewing LLP

Maryland Personal Jurisdiction Law In The Cyberspace Content, Saad Gul

University of Baltimore Law Forum

A century ago, personal jurisdiction largely hinged on a simple litmus test: the defendant’s presence in the forum state. The issue of personal jurisdiction gained prevalence as the nation evolved from its earlier days of detached, semi-sovereign entities, whose citizens rarely interacted, to a nation where interstate commerce had increased, with interstate litigation growing correspondingly. In Pennoyer v. Neff, the Supreme Court of the United States effectively limited a state’s jurisdiction to persons physically present within its territorial borders. However, in today’s increasingly interconnected world, physical presence appears to represent an anachronism set in the post-Civil War, horse-and-buggy America of …


Trans-Substantivity Beyond Procedure, Suzette M. Malveaux 2014 University of Colorado Law School

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.


A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux 2014 University of Colorado Law School

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.


Access To Counsel In Removal Proceedings: A Case Study For Exploring The Legal And Societal Imperative To Expand The Civil Right To Counsel, Carla L. Reyes 2014 Southern Methodist University, Dedman School of Law

Access To Counsel In Removal Proceedings: A Case Study For Exploring The Legal And Societal Imperative To Expand The Civil Right To Counsel, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Although empirical evidence shows that a foreign national's chances of receiving a favorable ruling doubles when an attorney represents him or her in removal proceedings, a unique confluence of history, legal tradition and policy climate have restricted immigrants' access to counsel to a ten-day window in which the immigrant may seek representation of his or her own choosing at no expense to the government. Although removal proceedings are, by definition, civil proceedings, they nevertheless involve physical detention and the possibility of permanent removal from the United States. These circumstances make the immigration system a unique case study for exploration of …


Bridging The Justice Gap: Exploring Approaches For Improving Indigent Access To Civil Counsel, Kelsey Atkinson 2014 Pomona College

Bridging The Justice Gap: Exploring Approaches For Improving Indigent Access To Civil Counsel, Kelsey Atkinson

Pomona Senior Theses

The United States is among one of the only democratic industrialized nations in the world that does not provide guaranteed access to civil representation in cases involving basic human need. This leaves indigent litigants who are at risk of losing their homes or their children left to seek counsel through insufficient pro-bono programs or limited scope legal self-help centers. This thesis provides a history of the struggle for the right to civil counsel, known as Civil Gideon, and explores a variety of proposed solutions to bridge the justice gap for indigent litigants. Despite considerable support for Civil Gideon among scholars …


This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi 2014 Seattle University School of Law

This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi

Faculty Articles

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This article suggests that may not always be true. This article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …


Remanding Multidistrict Litigation, Elizabeth Chamblee Burch 2014 University of Georgia School of Law

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …


The Prudential Third Party Standing Of Family-Owned Corporations, Matthew I. Hall, Benjamin Means 2014 University of Georgia School of Law

The Prudential Third Party Standing Of Family-Owned Corporations, Matthew I. Hall, Benjamin Means

Scholarly Works

On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby and Conestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious …


The Story Of Prudential Standing, S. Todd Brown 2014 University at Buffalo School of Law

The Story Of Prudential Standing, S. Todd Brown

Journal Articles

Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …


Mixed Signals On Summary Judgment, Howard Wasserman 2014 Florida International University College of Law

Mixed Signals On Summary Judgment, Howard Wasserman

Faculty Publications

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …


The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, Rafael I. Pardo 2014 Washington University in St. Louis School of Law

The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

This Article offers new insights into understanding the complexities and costs of the litigation burden that Congress has imposed on debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that necessitates litigation as the path for obtaining certain types of bankruptcy relief, this Article focuses on the particular example of debtors who seek to discharge their student loans in bankruptcy. Such debt may be discharged only if the debtor can establish through a full-blown lawsuit that repaying the loans would impose an undue hardship. The procedure and burdens of proof governing …


Discovery Of Medical Records In Oklahoma State Courts, Charles W. Adams 2014 University of Tulsa College of Law

Discovery Of Medical Records In Oklahoma State Courts, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.


Preliminary Injunctions Post-Mayo And Myriad, Jacob S. Sherkow 2014 New York Law School

Preliminary Injunctions Post-Mayo And Myriad, Jacob S. Sherkow

Articles & Chapters

The Supreme Court's recent interest in patentable subject matter has had several, unexpected downstream effects on preliminary injunctions in patent disputes.

The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on patentable subject matter in over thirty years. And later this term, the Court will decide yet another patent eligibility case: Alice Corp. v. CLS …


Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, Paul Craig 2014 Indiana University Maurer School of Law

Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, Paul Craig

Articles by Maurer Faculty

The decision in Case Pringle was primarily concerned with whether the European Stability Mechanism (TFEU) was compatible with various substantive provisions of the Treaty on the Functioning of the European Union, most notably the prohibition on bailouts in Article 125 TFEU. The judgment is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article in a previous issue of the European Constitutional Law Review, in …


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