Civil Procedure Commons^™

The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey

San Diego Law Review

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …

Summary Of Brooksby V. Nev. State Bank, 129 Nev. Adv. Op. 82, Michael Bowman

Nevada Supreme Court Summaries

The Court determined two issues: (1) whether a judgment creditor may garnish a nondebtor’s funds in bank accounts held jointly with a judgment debtor; and (2) whether NRS 31.070 imposes an absolute deadline for making a third-party claim, thereby precluding the district court from having jurisdiction.

Summary Of Humphries V. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 85, Sean Daly

Nevada Supreme Court Summaries

The Court determined two issues: (1) whether relief through a writ of mandamus was appropriate for the petitioners, Humphries and Rocha, and (2) whether Ferrell, a non-party cotortfeasor, was a necessary party under NRCP 19(a).

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

Nonsuit In Virginia Civil Trials, Richard G. Moore

University of Richmond Law Review

No abstract provided.

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. The article discusses opinions of theSupreme Court of Virginia from June 2012 through June 2013 addressing civil procedure topics, significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period, and legislation enacted by the Virginia General Assembly during its 2013 session that relates to civil practice.

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …

Jurisdiction And The Enforcement Of Foreign Judgments, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

Summary Of Stilwell V. City Of North Las Vegas And City Of Boulder City, 129 Nev. Adv. Op. 76, Kylee Gloeckner

Nevada Supreme Court Summaries

The Court determined two issues: (1) whether the district court’s appellate jurisdiction is final for cases that originate in the municipal courts; and (2) whether NRS 176.115 creates an additional right of appeal for a defendant who has already been given an opportunity to appeal and who has been unsuccessful.

State Of Trujillo V. State, 129 Nev. Adv. Op. 78, Laura Guidry

Nevada Supreme Court Summaries

The Court determined issues: (1) whether the common law writ of coram nobis may be used in Nevada; and (2) whether a petitioner may use the writ of coram nobis to seek relief of judgment from his guilty plea to a felony when his counsel failed to warn him of the immigration implications of the plea.

Summary Of In Re Citycenter Construction & Lien Master Litigation, 129 Nev. Adv. Op. 70, Michael Paretti

Nevada Supreme Court Summaries

The Court determined two issues: (1) whether the district court was correct in holding that an amended pleading must be dismissed because it was not filed with an affidavit and expert report required under Nevada law; (2) and whether the entire case must be dismissed or just the amended complaint must be dismissed under the meaning of “action.”

Summary Of Mcknight Family, Llp V. Adept Mgmt. Services, Inc., Et. Al., 129 Nev. Adv. Op. 64, Whitney E. Short

Nevada Supreme Court Summaries

The Court determined three issues: (1) whether the district court had the authority to dismiss the complaint pursuant to NRS 38.310;2 (2) whether the district court erred in dismissing all seven claims (preliminary/permanent injunction, negligence, breach of contract, violation of NAC 116.300,3 violation of NAC 116.341,4 violation of NRS 116.1113 and 116.3103, and slander of title/wrongful foreclosure/quiet title) subject to NRS 38.310; and (3) whether the district court erred in setting aside the default judgment against Design 3.2.

Summary Of Wells Fargo Bank, N.A. V. O’Brien, 129 Nev. Adv. Op. 71, Patrick Opdyke

Nevada Supreme Court Summaries

The Court determined whether a district court order for judicial review of foreclosure mediation and remanding for further mediation is final and appealable, or whether it is not final and not appealable.

Footnote Online Supplement: State Truancy Law Compilation, Dean H. Rivkin

College of Law Faculty Scholarship

This compilation of state truancy laws is being provided as a footnote supplement to the forthcoming article No Child Left Behind? Representing Youth and Families in Truancy Matters (2013) by Prof. Dean Hill Rivkin and Brenda McGee, of The Education Law Practicum at the University of Tennessee College of Law. It is an updated version of the laws listed in the Juvenile Law Center’s excellent amicus curiae brief in Bellevue School District v. E.S., Brief of Juvenile Law Center, et al., As Amicus Curiae on Behalf of Respondent, Bellevue Sch. Dist. v. E.S., 257 P.3d 570 (Wash. 2011) …

"Carving At The Joints": Using Issue Classes To Reframe Consumer Class Actions, Jenna C. Smith

Washington Law Review

Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend …

Happy Anniversary To The Cplr: A Joint Achievement Of The Practicing Bar And The Academy, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This September, we celebrated the 50th anniversary of the Civil Practice Law and Rules of New York State. The CPLR was the handiwork of the Advisory Committee on Practice and Procedure, appointed in 1955 by the New York State Temporary Commission on the Courts. Under the leadership of the Committee's reporter, then Columbia Law School Professor Jack B. Weinstein, the Committee members, which included former New York State Bar Association presidents Jackson Dykman and S. Hazard Gillespie, spent five years overhauling, revising and reforming the Civil Practice Act of 1920. This remarkable joint venture between the practicing bar and the …

Learning The 'How' Of The Law: Teaching Procedure And Legal Education, David Bamford, Trevor C. W. Farrow, Michael Karayanni, Erik S. Knutsen

Osgoode Hall Law Journal

This article examines the approaches to teaching civil procedure in five common law jurisdictions (Canada, Australia, United States, Israel, and England). The paper demonstrates the important transition of civil procedure from a vocational oriented subject to a rigorous intellectual study of policies, processes, and values underpinning our civil justice system, and analysis of how that system operates. The advantages and disadvantages of where civil procedure fits within the curriculum are discussed and the significant opportunities for ‘active’ learning are highlighted. The inclusion of England where civil procedure is not taught to any significant degree in the law degree provides a …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron

Osgoode Hall Law Journal

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that …

The Teaching Of Procedure Across Common Law Systems, Erik S. Knutsen, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Osgoode Hall Law Journal

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems— the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained re flection has been carried out as to the import and impact of this longstanding …