The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis,
2011
William & Mary Law School
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
Faculty Publications
Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …
Should "Twombly" And "Iqbal" Apply To Affirmative Defenses?,
2011
Vanderbilt University Law School
Should "Twombly" And "Iqbal" Apply To Affirmative Defenses?, Nathan Pysno
Vanderbilt Law Review
In 2007, the U.S. Supreme Court promulgated a new pleading standard in Bell Atlantic Corp. v. Twombly, specifically holding that complaints must state a claim to relief that is "plausible on its face." The Twombly decision retired the well-established and more lenient pleading regime that reigned since the Court's 1957 decision in Conley v. Gibson. Two years after Twombly, the Supreme Court confirmed in Ashcroft v. Iqbal that neither the reach of the new plausibility standard nor the death of Conley was exaggerated. "Labels and conclusions" are now insufficient, as are "naked assertions devoid of further factual enhancement" and "unadorned …
On Removal Jurisdiction's Unanimous Consent Requirements,
2011
William & Mary Law School
On Removal Jurisdiction's Unanimous Consent Requirements, Adam R. Prescott
William & Mary Law Review
No abstract provided.
Pre-Service Removal In The Forum Defendant's Arsenal,
2011
Texas A&M University School of Law
Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat
Faculty Scholarship
This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …
Summary Of Daane V. Dist. Ct., 127 Nev. Adv. Op. 59,
2011
Nevada Law Journal
Summary Of Daane V. Dist. Ct., 127 Nev. Adv. Op. 59, Michelle Newman
Nevada Supreme Court Summaries
A writ of prohibition precluding further proceedings by Nevada’s Foreclosure Mediation Program was denied because the petitioner had an adequate remedy in the ordinary course of law.
Electronic Discovery In The Cloud,
2011
Duke Law
Electronic Discovery In The Cloud, Alberto G. Araiza
Duke Law & Technology Review
Cloud Computing is poised to offer tremendous benefits to clients, including inexpensive access to seemingly limitless resources that are available instantly, anywhere. To prepare for the shift from computing environments dependent on dedicated hardware to Cloud Computing, the Federal Rules of Discovery should be amended to provide relevant guidelines and exceptions for particular types of shared data. Meanwhile, clients should ensure that service contracts with Cloud providers include safeguards against inadvertent discoveries and mechanisms for complying with the Rules. Without these adaptations, clients will be either reluctant or unprepared to adopt Cloud Computing services, and forgo their benefits.
Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights,
2011
University of Nevada, Las Vegas -- William S. Boyd School of Law
Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the 33rd Meeting of the German Society for Comparative Law (Gesellschaft für Rechtsvergleichung) in Trier, Germany, on September 16, 2011.
Summary Of Otak Nevada, Llc V. Dist. Ct., 127 Nev. Adv. Op. No. 53,
2011
Nevada Law Journal
Summary Of Otak Nevada, Llc V. Dist. Ct., 127 Nev. Adv. Op. No. 53, Jason Wallace
Nevada Supreme Court Summaries
Petition for writ of mandamus challenging the Eighth Judicial District Court’s orders that pleadings alleging nonresidential construction malpractice, initially filed without attorney affidavits and expert reports, were valid under NRS 11.258.
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination,
2011
United States Court of Appeals for the Seventh Circuit
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Michigan Journal of Race and Law
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …
Younger Abstention And Its Aftermath: An Empricial Perspective,
2011
University of Nevada, Las Vegas -- William S. Boyd School of Law
Younger Abstention And Its Aftermath: An Empricial Perspective, Joshua G. Urquhart
Nevada Law Journal
This Article presents the results of an empirical survey examining the disposition of federal claims after Younger abstention litigation. It traces the expansion of the Younger doctrine over the past several decades and explains how it featured prominently in the judicial parity debate that occurred in earnest from the late 1970s until the early 1990s. It notes that despite the emergence of empiricism as a tool in that debate, no one has examined how federal claims are actually being resolved in post-Younger proceedings at the state and federal levels. The Article then undertakes that inquiry, observing a federal claim success …
Tangible "Intangibles" And Other Mysteries: A Critique Of The D.C. Circuit's Expansion Of Work Product Doctrine In United States V. Deloitte Llp,
2011
University of Nevada, Las Vegas -- William S. Boyd School of Law
Tangible "Intangibles" And Other Mysteries: A Critique Of The D.C. Circuit's Expansion Of Work Product Doctrine In United States V. Deloitte Llp, Brian L. Blaylock
Nevada Law Journal
No abstract provided.
Shielding Hippocrates: Nevada's Expanded Pleading Standard For Medical Malpractice Actions And The Need For Legislative Reform,
2011
University of Nevada, Las Vegas -- William S. Boyd School of Law
Shielding Hippocrates: Nevada's Expanded Pleading Standard For Medical Malpractice Actions And The Need For Legislative Reform, Justin Shiroff
Nevada Law Journal
No abstract provided.
13th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2011,
2011
Roger Williams University
13th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2011, Department Of Attorney General, State Of Rhode Island
School of Law Conferences, Lectures & Events
No abstract provided.
Summary Of Hawkins V. State, 127 Nev. Adv. Op. No. 50,
2011
Nevada Law Journal
Summary Of Hawkins V. State, 127 Nev. Adv. Op. No. 50, Christopher Scott Connell
Nevada Supreme Court Summaries
Appeal from a District Court judgment of conviction, by way of a jury verdict, of conspiracy to violate the Uniform Controlled Substances Act.
Summary Of Lvmpd V. Coregis Insurance Co., 127 Nev. Adv. Op. No. 47,
2011
Nevada Law Journal
Summary Of Lvmpd V. Coregis Insurance Co., 127 Nev. Adv. Op. No. 47, Charles Gianelloni
Nevada Supreme Court Summaries
Consolidated appeals from a district court summary judgment in an insurance action and from a post-judgment order denying an NRCP 60(b) motion.
Summary Of Roethlisberger V. Mcnulty, 127 Nev. Adv. Op. No. 48,
2011
Nevada Law Journal
Summary Of Roethlisberger V. Mcnulty, 127 Nev. Adv. Op. No. 48, Michael Roche
Nevada Supreme Court Summaries
Appeal from a district court order denying a motion for a change of venue in a tort action.
Civil Procedure’S Five Big Ideas,
2011
Cornell Law School
Civil Procedure’S Five Big Ideas, Kevin M. Clermont
Cornell Law Faculty Working Papers
Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become more openly the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I am championing is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true …
Summary Of Costello V. Casler, 127 Nev. Adv. Op. No. 36,
2011
Nevada Law Journal
Summary Of Costello V. Casler, 127 Nev. Adv. Op. No. 36, Danielle Woodrum
Nevada Supreme Court Summaries
An appeal from a district court summary judgment in a tort action where the defendant was deceased prior to the filing of the complaint and the statute of limitations had run before the decedent’s estate could be added to the complaint.
Summary Of Pasillas V. Hsbc Bank Usa, Et. Al., 127 Nev. Adv. Op. No. 39,
2011
Nevada Law Journal
Summary Of Pasillas V. Hsbc Bank Usa, Et. Al., 127 Nev. Adv. Op. No. 39, Meredith Still
Nevada Supreme Court Summaries
An appeal from a district court order denying a petition for judicial review arising in a foreclosure mediation action.
Live Hearings And Paper Trials,
2011
Florida State University College of Law
Live Hearings And Paper Trials, Emily Spottswood
Scholarly Publications
This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …
