Civil Procedure Commons^™

Identity Crisis: Class Certification, Aggregate Proof, And How Rule 23 May Be Self-Defeating The Policy For Which It Was Established, J. Britton Whitbeck

Pace Law Review

Class actions suits developed in the United States as a form of “group litigation,” an alternative to the impracticability or inequities of separate, individual actions of a similarly situated class of plaintiffs and, eventually, defendants. Congressional passage of the Class Action Fairness Act of 2005 (CAFA) provided the federal courts with expounded diversity jurisdiction for the purpose of “assur[ing] fairer outcomes for class members and defendants.” However, recent circuit splits regarding class certification under Rule 23 of the Federal Rules of Civil Procedure (FRCP) and the use of aggregate proof in certifying classes have, in an ironic twist of legal …

Travel Abroad, Sue At Home 2012: Forum Non Conveniens & The Enforcement Of Forum Selection And Mandatory Arbitration Clauses, Thomas A. Dickerson

Pace Law Review

A common litigation strategy is to sue in the U.S. in federal or state court against a solvent defendant subject to long-arm jurisdiction and the application of U.S. common law or statutory law. Such cases raise a variety of complex liability and procedural issues including liability shifting, jurisdiction, forum non conveniens, and choice of law. This Article will identify various types of travel accidents abroad, and discuss the doctrine of forum non conveniens and the enforceability of forum selection and mandatory arbitration clauses in travel consumer contracts.

Trial Bench Views: Iaals Report On Findings From A National Survey On Civil Procedure, Corina Gerety

Pace Law Review

In the spring of 2010, the Institute for the Advancement of the American Legal System (“IAALS”) collected survey data on the American civil justice system from state and federal judges throughout the United States, as part of a joint effort with Northwestern University School of Law’s Searle Center on Law, Regulation, and Economic Growth (“Searle Center”). This report sets forth the collective opinions of respondent judges, as they bear on civil reform proposals developed by IAALS and the American College of Trial Lawyers Task Force on Discovery and Civil Litigation (“ACTL Task Force”).

Social Media And Ediscovery: Emerging Issues, Adam Cohen

Pace Law Review

Courts, as well as private sector and government policymakers, have only just begun to address the practical litigation issues raised by the proliferation of social media channels and content. This Article comments on some of those issues as they relate to electronic discovery (“eDiscovery”) and examines how they have been approached in emerging case law. It does not address proposed legislation on a domestic and international level that may impact social media’s use in litigation, nor does it purport to be in any way comprehensive in its coverage of developments and potential developments in the legal implications of social media.

Googling Jurors To Conduct Voir Dire, J. C. Lundberg

Washington Journal of Law, Technology & Arts

During voir dire in Johnson v. McCullough, a medical malpractice case in Missouri, at least one juror failed to answer honestly a question about whether he had been a defendant or plaintiff in a lawsuit. After the verdict was entered, the plaintiff conducted a search on Missouri’s online case database and discovered that one of the jurors had been a defendant in a personal injury suit. In the resulting appeal, the Supreme Court of Missouri held that litigants should conduct a search in this database during voir dire, instead of waiting until after a verdict is entered. Johnson is …

Trial-Court Discretion: Its Exercise By Trial Courts And Its Review By Appellate Courts, Joseph T. Sneed

The Journal of Appellate Practice and Process

No abstract provided.

Statutory Genres: Substance, Procedure, Jurisdiction, Karen Petroski

All Faculty Scholarship

To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the …

A New Lens: Reframing The Conversation About The Use Of Video Conferencing In Civil Trials In Ontario, Amy Salyzyn

Osgoode Hall Law Journal

The state of courtroom technology in Ontario is increasingly capturing the attention of both the public and the legal profession. This article seeks to contribute to the conversation on this issue by focusing on one particular technology in Ontario’s courtrooms: the use of video conferencing to receive witness testimony in civil trials. The central claim is that the approach to video conferencing that dominates the policy discourse reflects an overly narrow, instrumentalist view of technology that fails to adequately take account of possible broader political and social implications as well as this technology’s transformative potential. This argument is developed by …

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

Nevada Law Journal

No abstract provided.

The Attorney Signature Block On A Brief: A Jumping - Off Point For Discussing Ethics With Students, Heidi K. Brown

Other Publications

No abstract provided.

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

A Modest Proposal For Human Limitations On Cyberdiscovery, Richard Esenberg

Florida Law Review

Many lawyers, whether by training or disposition, have come to regard discovery as a process in which no stone is to be left unturned. With the advent of electronically stored information, the stones have become too numerous to account. Discovery rules that seek the perfection of preserving and producing all potentially pertinent information have become the enemy of the good. This article calls for a more pragmatic—and modest—approach.

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Florida Law Review

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons …

How To Think About Errors, Costs, And Their Allocation, Ronald J. Allen

Florida Law Review

There is an ongoing, robust debate about the structure of litigation, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all the people so that people may present claims that their rights have been violated has dominated academic discourse and has, perhaps, significantly influenced the structure of litigation. This conventional view—that the courts should be freely open to all—was dealt a blow by the Iqbal and Twombly decisions, which imposed greater gatekeeping responsibilities on the federal district courts. These decisions predictably provoked a storm of …

Pleading, Discovery, And The Federal Rules: Exploring The Foundation Of Modern Procedure, Martin H. Reddish

Florida Law Review

This Article provides a foundational structural analysis underlying the federal procedural system and explores the implications of that normative framework for the proper shaping of the federal system’s pleading and discovery rules. By analyzing and synthesizing the different elements of this underlying “litigation matrix,” the Article concludes that the Supreme Court’s “plausibility” test for pleading under Rule 8(a) of the Federal Rules of Civil Procedure represents an appropriate balance of the competing deep structural elements by imposing on a defendant the risks of unnecessarily burdensome pretrial discovery processes only when the complaint includes enough facts to suggest the viability of …

Short Circuiting The Justice System: How Defendants Are Misusing Writs Of Execution, Kristopher Wood

Pepperdine Law Review

No abstract provided.

Give It To Me Uniformly: West Virginia Wants Initial Disclosure, Evan Olds

West Virginia Law Review

No abstract provided.

Cultural Dimensions Of Group Litigation, Janet Walker

Conference Papers

No abstract provided.

Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii

Pepperdine Law Review

No abstract provided.

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Pepperdine Law Review

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …