Civil Procedure Commons^™

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …

Participatory Defense And Three Pillars Of Criminal Injustice, Isis Misdary

Nevada Law Journal

No abstract provided.

Public Defender Workload And The Promise Of Gideon, M. Eve Hanan

Scholarly Works

Gideon v. Wainwright, which was decided in 1963, held that the Sixth Amendment guarantees the right to counsel for poor people charged with crimes in state court.1 Over the six decades since Gideon was decided, states have grappled with how to provide public defense services.

Fee-Shifting Shortcuts, Maureen Carroll

Articles

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.

This …

Seeing The Unseen: Procedural Solutions In Plain Sight, Melissa Mortazavi

Other Faculty Publications

No abstract provided.

Preserving Incentive Awards, Christine P. Bartholomew

Book Reviews

reviewing Alexander J. Noronha, On Behalf of All Others Similarly Situated: Class Representatives & Equitable Compensation, 122 Mich. L. Rev. 733 (2024)

Pleading With Particularity: Decoding When Computer Fraud And Abuse Act Claims Must Comply With Rule 9(B), Brooke R. Newman

Pepperdine Law Review

The primary tool for litigating cybercrimes is the Computer Fraud and Abuse Act (CFAA), which Congress enacted in 1984 following increased computer misuse. Since its debut, the CFAA has undergone a series of amendments. The most noteworthy of which for civil litigators came in 1994 when Congress enacted a civil penalty for cybercrimes. Part of this penalty includes 18 U.S.C. § 1030(a)(4), which prohibits fraudulent conduct in connection with computer usage. In recent years, litigators have weaponized § 1030(a)(4) to challenge a variety of conduct, most of which has nothing to do with cybercrimes. These filings have split district courts …

Is Snap Removal Unconstitutional?, Ryan H. Nelson

Pepperdine Law Review

In snap removal, an individual removes a civil action to federal district court from the courts of a state where one or more putative defendants are a citizen before any such putative defendant has been served with process. By removing before any forum-state defendants are served, the removal arguably eludes the forum-defendant rule, which prohibits removal based solely on the diversity or alienage jurisdiction statute if “any of the parties in interest properly . . . served as defendants is a citizen of the State in which such action is brought.” For years, federal judges and legal academics have disputed …

Erie And Aggregate Settlement In Diversity Jurisdiction Suits, John D. Spengler Jr.

Notre Dame Law Review

Over the last decades, United States federal courts have sharply curtailed the ability of parties to reach a global resolution, including through voluntary settlement, in mass tort and similar class action lawsuits. As a result, the multidistrict litigation (MDL) statute continues to play an ever-increasing role in the resolution of these mass claims. Primarily, this is because the MDL process forgoes the more strenuous requirements for class certification under Federal Rules of Civil Procedure 23(a) and 23(b). In an MDL proceeding, the Judicial Panel on Multidistrict Litigation (JPML) can order individual cases, either sua sponte or on the request of …

Civil Jury Trial Discussions In Colorado: Perspectives From Judees And Attorneys After Twenty-Five Years Of Jury Reform, Juan G. Villaseñor

University of Michigan Journal of Law Reform Caveat

In the United States, the overwhelming practice in civil jury trials (and certainly in criminal trials) is that jurors must wait to deliberate until they have heard all the evidence, the attorneys’ closing arguments, and received the instructions on the law from the court. Generally, jurors may not discuss the evidence they are hearing or seeing as the trial progresses, and the judge, at multiple points during the trial, typically instructs jurors not to do so, especially before any recess.

Colorado, among a handful of other jurisdictions, is an exception to that practice. In civil jury trials in district court, …

Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James Paul George

Faculty Scholarship

Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …

The Longer-Term Impact Of Civil Justice Reform: A 10-Year Retrospective On Utah Civil Discovery Reform, Paula Hannaford-Agor, Miriam Hamilton

Faculty Publications

In 2021, the National Center for State Courts (NCSC) obtained grant funding from State Justice Institute to undertake a retrospective study of the Utah civil justice reforms. The new study replicated some of the analyses from the 2015 study to compare case characteristics and outcomes against the post-implementation data extracted for the 2015 study. In addition to examining the impact on case characteristics and outcomes, an objective of the new study was to examine the impact of the Rule 26 revisions on practitioner behavior, which is less easily captured in case filings. To do so, NCSC convened a project advisory …

The Blockbuster Amendment To Cplr 2106 Permitting Any Person To Submit An Affirmation In Lieu Of An Affidavit, Patrick M. Connors

St. John's Law Review

(Excerpt)

Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure.

As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to …

Peeping Town: Drone Surveillance And The Exclusionary Rule In Long Lake Township V. Maxon, Stuart Massa

Northwestern University Law Review

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan …

Judicial Review Of Settlements Under The Class Action Fairness Act And Deference Due To The Department Of Justice And State Attorneys General, Michael E. Solimine, Hailey Martin

Faculty Articles and Other Publications

The Class Action Fairness Act of 2005 (CAFA) made it easier to remove consumer class actions from state to federal court, and among other things regulates the procedure of federal court approval of settlements of those cases. CAFA requires that before any court approval or disapproval, the parties must notify the Attorney General of the United States, and the attorneys general of states where members of the class live, of the pending settlement in order to receive any objections or other input. While such notice is frequently sent, since most class action cases settle out of court, it appears that …

Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons, Michael E. Solimine

Faculty Articles and Other Publications

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court …

Injunctive Restraint, Cassandra Burke Robertson

Faculty Publications

Preliminary injunctions against government action have evolved from extraordinary remedies into routine instruments of political contestation, with both Republican and Democratic administrations finding their initiatives halted by nationwide judicial orders. These injunctions serve vital functions in our constitutional system—preventing irreparable harm to fundamental rights and providing necessary checks on executive power in an era of congressional gridlock. Yet their increasing use has generated legitimate institutional concerns, particularly when a single district judge, often selected through strategic forum shopping, can unilaterally suspend national policies of significant importance. This Article examines this tension between the necessary role of nationwide injunctions in protecting …

Causation’S Due Process Dimensions, Cassandra Burke Robertson, Charles W. "Rocky" Rhodes

Faculty Publications

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications …

Doug Laycock And Creativity In Restitution—The Henrietta Lacks Litigation As A Test Case, Doug Rendleman, Caprice L. Roberts

Scholarly Articles

This Article explores the Henrietta Lacks litigation as a test case for Professor Laycock's writings and theories on the law of unjust enrichment and restitution remedies. A series of modern lawsuits brought by the Lacks Estate allege that defendant companies continue to make unjust profits with knowledge of the unsavory provenance of the Henrietta Lacks immortal cell line. The only count in the complaints is unjust enrichment. The core remedy is restitutionary disgorgement of unjust gains. The authors connect the novel nature of the lawsuits to foundational restitution principles. Professor Laycock's scholarly articles, books, and law reform projects bring deeper …

Remote Work's Complication Of Companies' Personal Jurisdiction Standings: Morphing The Historical Analysis To Fit Modern Remote Work Characteristics, Lindarose Piccolo

American University Business Law Review

Personal jurisdiction ensures that the proper forum adjudicates civil disputes to prevent burdening a defendant with litigating in inconvenient forums. International Shoe Co. v. Washington established that defendants must have minimum contacts with the forum state such that exercise of jurisdiction comports with fair play and substantial justice. Following International Shoe, many cases have provided examples of the minimum contacts that would establish personal jurisdiction.

However, the ability for employees to work remotely from their homes using technological devices and software has exponentially increased over the past five years. Because of the increased ability to work remotely from anywhere in …