Proportionality In Discovery: A Cautionary Tale,
2010
Campbell University School of Law
Proportionality In Discovery: A Cautionary Tale, John L. Carroll
Campbell Law Review
"There has been widespread criticism of the abuse of discovery."' That statement comes not from a recent edition of the Defense Research Institute newsletter but from the Advisory Committee notes to the 1980 amendment that gave us the Rule 26(f) conference. Discovery abuse and the increase in the cost of litigation that flows from such abuse has been a constant theme emerging from analysis of the civil justice system.
Iqbal, Procedural Mismatches, And Civil Rights Litigation,
2010
FIU College of Law
Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman
Faculty Publications
Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a "mismatch " between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S. C. §S 1983 and Bivens, …
If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market,
2010
Duke Law School
If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.
Faculty Scholarship
This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.
Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements,
2010
UC Hastings College of the Law
Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements, Ben Depoorter
Faculty Scholarship
No abstract provided.
Removing The Blindfold And Tipping The Scales: The Unintended Lesson Of Ashcroft V. Iqbal Is That Frivolous Lawsuits May Be Important To Our Nation,
2010
California Western School of Law
Removing The Blindfold And Tipping The Scales: The Unintended Lesson Of Ashcroft V. Iqbal Is That Frivolous Lawsuits May Be Important To Our Nation, Kenneth S. Klein
Faculty Scholarship
This Article questions whether the gain of curbing perceived frivolous litigation is worth the cost of undermining the core civic value of neutrality of justice. In Ashcroft v. Iqbal, the Supreme Court weighed in on the public debate about frivolous litigation. The lqbal opinion is essentially a memorandum by the Supreme Court written to the trial judges of America, encouraging these judges to aggressively, indeed very aggressively, identify and dismiss potentially frivolous civil complaints. That leeway-wrapped mandate comes at a cost. A cornerstone of our civic philosophy is that the judicial branch, as a general proposition, is a neutral …
Hydrogen Peroxide: The Third Circuit Comes Clean About The Rule 23 Class Action Certification Standard,
2010
Villanova University Charles Widger School of Law
Hydrogen Peroxide: The Third Circuit Comes Clean About The Rule 23 Class Action Certification Standard, Amy Dudash
Villanova Law Review (1956 - )
No abstract provided.
Tremors Of Things To Come: The Great Split Between Federal And State Pleading Standards,
2010
University of Oklahoma College of Law
Tremors Of Things To Come: The Great Split Between Federal And State Pleading Standards, Roger Michalski
Faculty Articles
No abstract provided.
The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform,
2010
University of Arizona Rogers College of Law
The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform, David Marcus
Georgia Law Review
Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This Article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part …
What The Federal Circuit Can Learn From The Supreme Court-And Vice Versa,
2010
NYU School of Law
What The Federal Circuit Can Learn From The Supreme Court-And Vice Versa, Rochelle Cooper Dreyfuss
American University Law Review
No abstract provided.
Six Decrees Of Separation: Settlement Agreements And Consent Orders In Federal Civil Litigation,
2010
American University Washington College of Law
Six Decrees Of Separation: Settlement Agreements And Consent Orders In Federal Civil Litigation, Anthony Disarro
American University Law Review
No abstract provided.
Piped In: The Tenth Circuit Weighs In On Extending American Pipe Tolling In State Farm Mutual Automobile Insurance Co. V. Boellstorff,
2010
University of Oklahoma College of Law
Piped In: The Tenth Circuit Weighs In On Extending American Pipe Tolling In State Farm Mutual Automobile Insurance Co. V. Boellstorff, Caleb Brown
Oklahoma Law Review
No abstract provided.
Pleading In Ohio After Bell Atlantic V. Twombly And Ashcroft V. Iqbal: Why Ohio Shouldn't Notice A Change,
2010
Cleveland State University
Pleading In Ohio After Bell Atlantic V. Twombly And Ashcroft V. Iqbal: Why Ohio Shouldn't Notice A Change, Alana C. Jochum
Cleveland State Law Review
Ohio has only briefly addressed the entrance of Bell Atlantic onto the pleading stage, and, thus far, Ohio state courts have mostly retained the Conley standard for determining pleadings. However, multiple pleading standards are emerging, making the issue ripe for a determination by the Supreme Court of Ohio as to what the true pleading standard is for Ohio. This Note will explain why Ohio should preserve Conley, even if doing so diverges from the original intent of federal-state uniformity embodied by the Federal Rules of Civil Procedure.
Colon Santos V. Cooperativa De Seguros Multiples Y El Aparente Conflicto Entre Las Doctrinas De La Solidaridad Y La Inmunidad, 79 Rev. Jur. U.P.R. 1091 (2010),
2010
John Marshall Law School
Colon Santos V. Cooperativa De Seguros Multiples Y El Aparente Conflicto Entre Las Doctrinas De La Solidaridad Y La Inmunidad, 79 Rev. Jur. U.P.R. 1091 (2010), Alberto Bernabe
UIC Law Open Access Faculty Scholarship
No abstract provided.
Plaintiff's Motion To Remand Denied: Arguing For Pre-Service Removal Under The Plain Language Of The Forum-Defendant Rule,
2010
Cleveland State University
Plaintiff's Motion To Remand Denied: Arguing For Pre-Service Removal Under The Plain Language Of The Forum-Defendant Rule, Matthew Curry
Cleveland State Law Review
This Note will examine all sides of the district court split and ultimately argue in favor of the plain language of the forum-defendant rule to permit pre-service removal.
'Canada' In Electronic Evidence,
2010
Dalhousie University Schulich School of Law
'Canada' In Electronic Evidence, Steve Coughlan
Articles, Book Chapters, & Popular Press
Canada is a bilingual and bi-jurisdictional country. Most provinces and territories are mainly English speaking and have common law as the basis for their legal system. The exception is the province of Quebec which is governed by civil law and where the majority speaks French. However, it must be noted that Quebec civil law has been substantially affected by common law, in particular with respect to discovery rules. The latter are closer to common law discovery rules than they are from, for instance, French civil law. Another important factor for the review of the management of digital evidence in Canada …
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations,
2010
Penn State Dickinson School of Law
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin
Faculty Scholarship
In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to …
The Irrepressible Influence Of Byrd,
2010
Emory University School of Law
The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur
Faculty Articles
We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings,
2010
University of Connecticut School of Law
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav
Faculty Articles and Papers
This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. …
The Poor As A Suspect Class Under The Equal Protection Clause: An Open Constitutional Question,
2010
Loyola University Chicago
The Poor As A Suspect Class Under The Equal Protection Clause: An Open Constitutional Question, Henry Rose
Faculty Publications & Other Works
Both judges and legal scholars assert that the United States Supreme Court has held that the poor are neither a quasi-suspect nor a suspect class under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They further assert that this issue was decided by the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It is the thesis of this article that the Supreme Court has not yet decided whether the poor are a quasi-suspect or a suspect class under Equal Protection. In fact, the majority in San Antonio Independent School …
Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics,
2010
Fordham University School of Law
Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky
Faculty Scholarship
Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie …
