Civil Procedure Commons^™

When Staying Discovery Stays Justice: Analyzing Motions To Stay Discovery When A Motion To Dismiss Is Pending, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Due to the important costs and benefits of discovery, decisions that affect the scope, timing, or availability of discovery are enormously consequential. For civil litigation in federal court, district and magistrate judges make many decisions about discovery that affect the cases before them. They decide the length and number of depositions that may be taken, compel or protect against the production of large numbers of documents and electronic data searches, serve as gatekeepers for expert witness testimony, and even decide whether the parties may take discovery at all until any motions to dismiss have been resolved. This Article focuses squarely …

Discernable Differences: A Survey Of Civil Jury Demands, M. Michelle Dunning

Washington Law Review

Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that …

Procedural Due Process And Predictable Punitive Damage Awards, Jill Wieber Lens

BYU Law Review

In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable punitive damage awards. Instead, the Court suggested pegging punitive damage awards to compensatory damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding. Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging punitive …

The Jury's Second Coming, Jenny E. Carroll

Faculty Scholarship

This article explores the controversial issue of jury nullification by reconceptualizing nullification through the lens of the Supreme Court’s recent decisions beginning with Apprendi v. New Jersey. Apprendi’s embrace of the jury’s historical powers — require a rejection of the formalized and static paradigm in favor of a more fluid vision of the law. Despite extensive scholarship surrounding Apprendi, an innovative (though admittedly counter-intuitive) reading of the case line has been overlooked. This reading draws on Apprendi’s embrace of a vision of the law constructed and completed through jury interpretation and verdict. Interpreted in this way, the Apprendi case line …

Applying The Stored Communications Act To The Civil Discovery Of Social Networking Sites, Rudolph J. Burshnic

Washington and Lee Law Review

No abstract provided.

Standing Of Intervenor-Defendants In Public Law Litigation, Matthew I. Hall

Scholarly Works

Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

But …

The Evolution Of A New International System Of Justice In The United Nations: The First Sessions Of The United Nations Appeals Tribunal, Tamara A. Shockley

San Diego International Law Journal

In this overview of the new U.N. administration of justice system, a review has been undertaken of the evolution of the process from the former internal justice system to the development of the new administration of justice system. The Appeals Tribunal had a partially blank slate upon which to begin a new jurisprudence in international administrative law. In the first two sessions, the Appeals Tribunal decided upon a wide range of issues ranging from receivability, case management, disciplinary measures and pension cases. As the U.N. attempts to reform and streamline its bureaucratic structure for the 21st century, the judicial tribunals …

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Opening Remarks, Kenneth Starr

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis

Pepperdine Dispute Resolution Law Journal

I really do believe that, as your title suggests, the civil justice system is at a crossroads and that, as a result, we all have new opportunities and old responsibilities. Four years ago, concerns about skyrocketing costs, unprofessional gamesmanship, and long delays in civil litigation were the stuff of grousing and shoulder shrugs. We all had a level of fatalism or cynicism about our inability to change any of those factors. Now, that is not true. There is a window of opportunity that has opened-a convergence of various forces resulting in a willingness of decision-makers to consider change. As a …

Foreword, Jeffrey D. Hoyle

Pepperdine Dispute Resolution Law Journal

The Symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law on April 15, 2010, under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR). It brought together a distinguished group of speakers and panelists to discuss dissatisfaction with the American justice system caused by increased delays, rising litigation costs, and decreased access to justice; and creative ways being used to address these concerns.

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob

Pepperdine Dispute Resolution Law Journal

On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …

Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco

Pepperdine Dispute Resolution Law Journal

While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …