Civil Procedure Commons^™

Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch

Scholarly Works

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green

Michigan Law Review

According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state's supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state's supreme court would. Horizontal Erie is such a plausible idea that one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister-state law. And state courts have taken advantage of this freedom, by routinely presuming that …

An Unnecessary Conflict: Bifurcated Civil Trials And States' Need For An Alternate Rule For Alternate Jurors, Craig M. Brunson

Kentucky Law Journal

No abstract provided.

Resolving Interstate Conflicts Over Same-Sex Non-Marriage, Hillel Y. Levin

Scholarly Works

States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage-like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all.

What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, …

The American "Rule": Assuring The Lion His Share, James Maxeiner

All Faculty Scholarship

Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the world. When American civil procedure took shape in the 1840s, American lawyers thought that losing parties ought to indemnify winning parties against all expenses of lawsuits. Yet today, attorneys’ fees – the lion’s share of expenses in the words of the General Report – are not allocated this way. By practice – and not by legal rule – attorneys’ fees fall on the parties that incur them. Those fees are not set by statute or court decision, but by agreement between parties and …

Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber

All Faculty Scholarship

In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have …

Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

'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.

A Tribute To Robert Spector: "It Started With Jurisdiction", Steven Gensler

Other Faculty Publications

No abstract provided.

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 …

Applying The Rules Of Discovery To Information Uncovered About Jurors, Thaddeus A. Hoffmeister

School of Law Faculty Publications

As more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors. In certain jurisdictions, the practice has become fairly commonplace. One prominent trial consultant has gone so far as to claim, “Anyone who doesn’t make use of [internet searches] is bordering on malpractice.” While this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become. Aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors.

While many view this practice as a benefit to …

Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist

Vanderbilt Journal of Transnational Law

When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: …

Serving A Summons By First Class Mail: Why Bankruptcy Rule 7004(B)(1) Violates Due Process, Jonathon S. Byington

Faculty Law Review Articles

This article argues that even though it has been accepted and widely used throughout the nation for thirty-five years by courts, practitioners, and commentators, the service method of delivering a summons and complaint solely by first class mail under Bankruptcy Rule 70004(b)(1) violates due process. Part I shows that the establishment of first class mail as an alternate service method occurred before the vast expansion of bankruptcy court jurisdiction. Part II evaluates the various reasons why Rule 7004(b)(1) violates due process. The article concludes in Part III by recommending a two-part solution to revise the rule.

Pleading And Proving Foreign Law In The Age Of Plausibility Pleading, Roger Michalski

Faculty Articles

No abstract provided.

Reviving Judicial Gatekeeping Of Aggregation: Scrutinizing The Merits On Class Certification, Richard L. Marcus

Faculty Scholarship

No abstract provided.

"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.