Civil Procedure Commons^™

The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash

Florida Law Review

Part I of this Article chronicles and summarizes the development of the Supreme Court’s punitive damages jurisprudence. Over the past two decades, the Court has increasingly constitutionalized various aspects of punitive damages jurisprudence, using both procedural and substantive due process rationales. A set of three “guideposts” has emerged that courts are to use in determining whether a punitive damages award runs afoul of constitutional guarantees.

Part II outlines the multiple punishments problem that is currently facing courts throughout the country and provides a brief overview of the various failed attempts and current proposals to remedy this problem.

Part III provides …

Comment On The Proposed Amendment To Evidence Rule 801(D)(1)(B), Liesa L. Richter

Other Faculty Publications

No abstract provided.

Gibson, Dunn & Crutcher V. Superior Court: The Attorney's Right To Cross-Complain For Equitable Indemnification From An Opposing Attorney, Joseph E. Thomas

Pepperdine Law Review

No abstract provided.

California Expands Tort Liability Under The Novel Market Share Theory: Sindell V. Abbott Laboratories, N. Denise Taylor

Pepperdine Law Review

The California Supreme Court, in the novel and unprecedented case of Sindell v. Abbott Laboratories, eliminated the plaintiffs burden of identification of a negligent party, and thus the causation requirement, in a multiple party tort action. In the course of this decision, the court adopted the "market share" theory of liability which dictated in Sindell that nonidentifiable defendant-manufacturers of the generic drug DES would be liable for the damages in proportion to their share of business in the market. The author thoroughly examines various theories of recovery, such as "alternative liability," "concert of action" and "enterprise liability," which the court …

Molien V. Kaiser Foundation Hospitals: Negligent Infliction Of Emotional Distress, Michael P. Messina

Pepperdine Law Review

In Molien v. Kaiser Foundation Hospitals, the California Supreme Court recognized that the interest in freedom from negligent infliction of mental distress is a protectable interest, and that an accompanying physical injury need not exist in order to recover damages. The author presents a discussion of the history and policies behind the right to recover from negligently inflicted emotional distress. The author also discusses and analyzes the court's opinion in Molien and agrees with the court that the fears of opening the floodgate of litigation which before Molien precluded recovery, was arbitrary. Finally, the author concludes that the holding is …

World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet

Pepperdine Law Review

World Wide Volkswagen Corporation v. Woodson considers the problem of modifying in personam jurisdiction to comply with the changing nature of the American economy. Several lower courts had adjusted the "minimum contacts" test of International Shoe Co. v. Washington to allow for the differences in modern economic lifestyle, but a uniformity amongst the various approaches was lacking. Rather than synthesize a contemporary test for the assertion of in personam jurisdiction, the World- Wide Court chose to place state sovereignty above modern commercial realities and adhere to a more rigid application of the minimum contacts analysis. The author takes issue with …

The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger

Pepperdine Law Review

The new Starker decision addresses the issue whether a nonsimultaneous exchange qualifies for section 1031 nonrecognition treatment. The Court of Appeals for the Ninth Circuit, in addressing this issue, also had to determine the appropriateness of the collateral estoppel "separable facts" doctrine under the facts in the case. The author provides an in-depth examination of the court's clarification of collateral estoppel and expansion of section 1031. The author, in agreeing with-the decision, welcomes the added flexibility the case lends to the real estate finance field.

Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger

Pepperdine Law Review

Recognizing the continually increasing burden placed on the jury in complex litigation cases, the author undertakes an extensive study of the origins of jury trials in the United States and England. Various arguments in favor of eliminating jury trials in complex litigation are discussed, along with a possible constitutional method of limiting the scope of the seventh amendment guarantee. The author also studies the case of Ross v. Bernhardt where the Supreme Court outlined a seldom used three- pronged test to determine whether or not a jury trial is constitutionally appropriate. The comment concludes that the factors in favor of …

Punitive Damages And The Drunken Driver, William C. Cooper

Pepperdine Law Review

A discussion of the history and theory of punitive damages which results in advocating their application in a drunk driving context after giving due consideration to the pros and cons of such a sanction. An analysis of case law will reveal the underlying rationale that has motivated certain jurisdictions in applying this severe penal approach in an attempt to deter and curtail the senseless destruction on our nation's highways as well as exploring the impetus behind those other jurisdictions that do not utilize the remedy of punitive damages. The culminating focus is on California's position in this regard. Finally, there …

Muko And Conex: The Third Circuit Responds To Connell , Robert A. King, Melvin L. Moser

Pepperdine Law Review

The authors discuss the application of federal antitrust laws to organized labor. The article, written for practitioners, defines the elements necessary to obtain a recovery in labor antitrust actions. The authors analyze the standard of review, burden of proof and the elements which the unions must show in order to be exempted from antitrust law. The focal point of the article is the comparison between the Supreme Court's most recent discussion of the labor exemption in Connell Construction Co. v. Plumbers & Steamfitters Local Union 100 and the Third Circuit's application of that exemption in Larry V. Muko v. Southwestern …

A Reappraisal Of General And Limited Jurisdiction In California , Thomas Kallay

Pepperdine Law Review

The ability of a California court to assert jurisdiction over business enterprises currently depends upon how the court characterizes the nature and extent of the business's activities within the state. If the in-state business activities of a particular concern are extensive, California courts will exercise all-encompassing general jurisdiction over the cause of action, but if the activities are insufficient to warrant the exercise of general jurisdiction, which has been invariably the case, the court will then turn to a consideration of limited jurisdiction, which jurisdiction depends upon the quality and nature of the business's activities in the forum in relation …

Summary Of Morrow V. Dist. Ct., 129 Nev. Adv. Op. 69, David H. Rigdon

Nevada Supreme Court Summaries

An original petition for a writ of mandamus from a district court order rejecting petitioner’s peremptory challenge of a judge in a divorce action.

The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk

Pepperdine Law Review

When aviation accidents occur, the National Transportation Safety Board conducts an investigation to determine the conditions, circumstances, and ultimately the probable cause of the accident. There is a federal statutory privilege which renders these reports, as well as testimony from the attending investigator, inadmissible as evidence in any suit or action arising from the accident. However, certain judicially created exceptions have arisen which permit portions of the report and certain investigator testimony to be admitted into evidence. The authors delineate and analyze these exceptions as they discuss the trend toward increased report and testimony admissibility. The authors conclude with a …

Merrill Lynch, Pierce, Fenner & Smith, Inc. V. Curran: Establishing An Implied Private Right Of Action Under The Commodity Exchange Act, Howard E. Hamann

Pepperdine Law Review

In the case of Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, the United States Supreme Court held that there is an implied private right of action under the Commodity Exchange Act, as amended. As a result of this holding, a private party may maintain an action for damages caused by a violation of the Commodity Exchange Act. In this article, the author examines the Supreme Court's analysis and explores the future impact of the decision in light of the role the judiciary has in legislative matters.

Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry

Pepperdine Law Review

Although traditionally it has been recognized that the President is absolutely immune from personal damage liability for his official acts, there is no precedent for this rule in constitutional text or case law. However, in the case of Nixon v. Fitzgerald, the Supreme Court overruled lower federal courts in establishing a clear precedent for the President's absolute immunity from personal liability for civil damages. The author examines this decision in light of traditional principles of official immunity and analyzes the Court's holding from the standpoint of whether the President is indeed placed "above the law."

The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer

Pepperdine Law Review

After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …

Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Florida Law Review

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, the judge gets to choose the decisional sequence in light of those various interests.

The law sees fit to put few limits on the judge’s power to sequence. The few limits are, in fact, quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …

Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan

Pepperdine Dispute Resolution Law Journal

The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.

Summary Of Garcia V. Prudential Ins. Co. Of America, 129 Nev. Adv. Op. 3, Benjamin K. Reitz

Nevada Supreme Court Summaries

An appeal addressing the preclusive effect of a judgment entered by a federal district court sitting in diversity.

Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin M. Clermont

Cornell Law Faculty Publications

The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof.

I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form …