Magic Words And The Erie Doctrine,
2012
Texas A&M University School of Law
Magic Words And The Erie Doctrine, Adam N. Steinman
Faculty Scholarship
No abstract provided.
Plausibility Pleading And Employment Discrimination,
2012
University of Colorado Law School
Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux
Publications
No abstract provided.
Twombly’S Seismic Disturbances,
2012
St. John's University School of Law
Twombly’S Seismic Disturbances, Edward D. Cavanagh
Faculty Publications
(Excerpt)
The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), has had a seismic impact on federal civil litigation. We all thought the notice pleading concept introduced under the Federal Rules of Civil Procedure had substantially eased the plaintiff's burden at the pleading stage. The Supreme Court in Twombly said "yes, but," and emphasized that notice pleading was never intended to dispense entirely with the need to plead facts demonstrating a right to relief. In short, facts matter: Rule 8 of the Federal Rules of Civil Procedure requires a statement of circumstances, events, and …
Erie And The Rules Of Evidence,
2012
Vanderbilt University Law School
Erie And The Rules Of Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have long …
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed,
2012
Southern Methodist University, Dedman School of Law
The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.
Faculty Journal Articles and Book Chapters
The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …
Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?,
2012
Seattle University School of Law
Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman
Faculty Articles
Every year in Professor Brooke Coleman’s 1L Civil Procedure course, she introduces the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. However, every year when Professor Coleman teaches it, she finds herself rejecting the case and its approach even more. In short, …
Summary Judgment: What We Think We Know Versus What We Ought To Know,
2012
Seattle University School of Law
Summary Judgment: What We Think We Know Versus What We Ought To Know, Brooke D. Coleman
Faculty Articles
The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to …
The Vanishing Plaintiff,
2012
Seattle University School of Law
The Vanishing Plaintiff, Brooke D. Coleman
Faculty Articles
What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it …
(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias,
2012
Seattle University School of Law
(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts
Faculty Articles
This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.
This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …
Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson,
2012
Seattle University School of Law
Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts
Faculty Articles
This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …
An Argument For Uniform E-Discovery Practice In Cross-Border Civil Litigation,
2012
University of Maryland Francis King Carey School of Law
An Argument For Uniform E-Discovery Practice In Cross-Border Civil Litigation, Daniel B. Garrie, Daniel K. Gelb
Journal of Business & Technology Law
No abstract provided.
Constitutional Gaps In Bankruptcy,
2012
University at Buffalo School of Law
Constitutional Gaps In Bankruptcy, S. Todd Brown
Journal Articles
Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules,
2012
University of Colorado Law School
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
Publications
Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …
Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing,
2012
University of Washington School of Law
Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans
Articles
This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …
Rethinking Voir Dire,
2012
Chair and Professor, Criminal Law Department, The Judge Advocate General's Legal Center and School, U.S. Army, Charlottesville, Virginia
Aggregate Litigation Goes Public: Representative Suits By State Attorneys General,
2012
Duke Law School
Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos
Faculty Scholarship
State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.
This Article challenges the presumption of adequate public representation. By conflating …
Intent And Consent In The Tort Of Battery: Confusion And Controversy,
2012
American University Washington College of Law
Intent And Consent In The Tort Of Battery: Confusion And Controversy, Nancy J. Moore
American University Law Review
No abstract provided.
Managing Summary Judgment,
2012
University of Oklahoma Norman Campus
Managing Summary Judgment, Steven S. Gensler, Lee Rosenthal
Faculty Articles
No abstract provided.
Erie As A Choice Of Enforcement Defaults,
2012
University of Miami School of Law
Erie As A Choice Of Enforcement Defaults, Sergio J. Campos
Articles
The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This Article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific …
Proof Of Classwide Injury,
2012
University of Miami School of Law
