Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law,
2011
University of New Hampshire School of Law
Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe
Law Faculty Scholarship
The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …
What Will We Lose If The Trial Vanishes?,
2011
Northwestern University School of Law
What Will We Lose If The Trial Vanishes?, Robert P. Burns
Faculty Working Papers
The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.
Finding Access To The Federal Courts: How The Inconsistent Application Of Federal Jurisdiction In Cases With Significant Foreign Relations Implications Affects Mining And Agriculture Industries,
2011
University of Kentucky
Finding Access To The Federal Courts: How The Inconsistent Application Of Federal Jurisdiction In Cases With Significant Foreign Relations Implications Affects Mining And Agriculture Industries, Rebecca C. Griffin
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age,
2011
University of Denver
E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield
Sturm College of Law: Faculty Scholarship
The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.
"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion--But Should Not Have,
2011
Elisabeth Haub School of Law at Pace University
"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion--But Should Not Have, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
This Article discusses the effect Shady Grove is likely to have on vertical choice-of-law in cases involving Federal Rule of Civil Procedure 23.
Suicide Causation Experts In Teen Wrongful Death Claims: Will They Assist The Trier Of Fact?, 45 J. Marshall L. Rev. 51 (2011),
2011
UIC School of Law
Suicide Causation Experts In Teen Wrongful Death Claims: Will They Assist The Trier Of Fact?, 45 J. Marshall L. Rev. 51 (2011), Andrea Maciver
UIC Law Review
No abstract provided.
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice,
2011
University of Missouri School of Law
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Faculty Publications
This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
Internet Contracting And E-Commerce Disputes: International And U. S. Personal Jurisdiction ,
2011
Cleveland State University
Internet Contracting And E-Commerce Disputes: International And U. S. Personal Jurisdiction , Anne Mccafferty
Global Business Law Review
In cases involving international defendants, a variety of bases have been deemed appropriate for a U.S. court to assert personal jurisdiction, including nationality, domicile, “purposeful availment,” and a number of federal statutes. With the explosion of the Internet and the resulting expansion of international business transactions via the Web, courts have struggled to adapt traditional modes of adjudication consistent with established common, statutory and international law. Internet transactions—now known as e-commerce—involve the “practice of buying and selling goods and services through online consumer services on the Internet.” In a sphere of commerce apparently limitless in its reach, this article explores …
The Emerging Federal Class Actions Brand ,
2011
George Mason University
The Emerging Federal Class Actions Brand , John C. Massaro
Cleveland State Law Review
Class actions raise a fundamental question about our judicial system. Is the purpose first and foremost to achieve a societally-desired level of law enforcement and deterrence, or is the primary goal to foster citizen participation in the resolution of private disputes? This Article provides the first extended analysis of this question in light of five recent Supreme Court decisions regarding class actions, the evolution of legislative initiatives in the area, and the docket activity in sixteen of the largest recent federal securities class actions. A single conclusion follows: we are witnessing the emergence of a new national “brand” of class …
Civil Rights And Systemic Wrongs,
2011
University of Colorado Law School
Civil Rights And Systemic Wrongs, Melissa Hart
Publications
Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …
Flying Blind: The Lack Of Uniformity In Federal Pleading After Twombly And Iqbal, 44 J. Marshall L. Rev. 485 (2011),
2011
UIC School of Law
Flying Blind: The Lack Of Uniformity In Federal Pleading After Twombly And Iqbal, 44 J. Marshall L. Rev. 485 (2011), Ryan Charlson
UIC Law Review
No abstract provided.
Spoliation Of Electronic Evidence: Sanctions Versus Advocacy,
2011
University of Tulsa College of Law
Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles Adams
Articles, Chapters in Books and Other Contributions to Scholarly Works
This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation …
Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011),
2011
John Marshall Law School
Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy
UIC Law Open Access Faculty Scholarship
No abstract provided.
Survey Of Illinois Law: At Long Last, A Long Look At Respondents In Discovery, 35 S. Ill. U. L.J. 703 (2011),
2011
The John Marshall Law School
Survey Of Illinois Law: At Long Last, A Long Look At Respondents In Discovery, 35 S. Ill. U. L.J. 703 (2011), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
No abstract provided.
Pleading And Proving Foreign Law In The Age Of Plausibility Pleading,
2011
University of Oklahoma College of Law
Pleading And Proving Foreign Law In The Age Of Plausibility Pleading, Roger Michalski
Faculty Articles
No abstract provided.
Plausible Answers And Affirmative Defenses,
2011
Mitchell Hamline School of Law
Plausible Answers And Affirmative Defenses, Eric S. Janus, Thomas Tinkham
Faculty Scholarship
Our federal courts have introduced a degree of uncertainty in the law of pleading that ought to be resolved with a clear decision about the scope of Twombly and Iqbal. We write to set forth what we believe are the overwhelming arguments in support of the developing majority view: pleading standards should not distinguish between plaintiffs and defendants, or between pleadings asserting and pleadings defending against a claim. Proponents of the minority view make policy arguments grounded in the asserted realities of litigation, leveraging small textual differences between Federal Rule of Civil Procedure Rule 8(a) and 8(c). But the …
'Til Death Do Us Part: Why Personal Jurisdiction Is Required To Issue Victim Protection Orders Against Nonresident Abusers,
2011
University of Oklahoma College of Law
'Til Death Do Us Part: Why Personal Jurisdiction Is Required To Issue Victim Protection Orders Against Nonresident Abusers, Bevan J. Graybill
Oklahoma Law Review
No abstract provided.
Please Plead Me: Ashcroft V. Iqbal And Implications For Oklahoma Pleading,
2011
University of Oklahoma College of Law
Please Plead Me: Ashcroft V. Iqbal And Implications For Oklahoma Pleading, Paula M. Williams
Oklahoma Law Review
No abstract provided.
The Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction,
2011
University of Oklahoma College of Law
The Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction, Robert A. Brown
Oklahoma Law Review
No abstract provided.
Two Views Of Class Action,
2011
University of Connecticut School of Law
Two Views Of Class Action, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
