Civil Procedure Commons^™

Secrets, Secrets Are No Fun: Supreme Court Of Georgia Expands The Possible Remedies For A Confidential Breach Of Fiduciary Relationship And Analyzed Certified Questions Of Law, Olivia M. Sanders

Mercer Law Review

The crux of the Supreme Court of Georgia’s decision in King v. King revolved around one theme: the consequences for a party that fails to disclose information in a confidential and fiduciary relationship. In King, the plaintiff’s difficult circumstances began over three decades earlier when his father died in a plane crash and a wrongful death suit was filed on his behalf. Though the plaintiff became entitled to settlement funds as a result of the wrongful death suit, the plaintiff never received the funds and filed a suit accordingly, alleging that the defendant breached his fiduciary duties and converted the …

Piercing The Procedural Veil Of Qualified Immunity: From The Guardians Of Civil Rights To The Guardians Of States’ Rights, Leo Yu

Washington and Lee Law Review

Scholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This Article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of …

Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery

Utah Law Review

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received …

Issues, Evan C. Zoldan

William & Mary Law Review

The Federal Rules of Civil Procedure have issues—148 issues to be exact. Although the Rules use the term “issue” throughout their text, they do not use it in the same way each time. In some circumstances, the meaning of “issue” is made clear by surrounding context, minimizing any interpretive difficulty. But sometimes context does not clarify the term’s meaning, creating interpretive challenges. This Article argues that the ambiguous term “issue” found in Federal Rules of Civil Procedure 50 and 52 is best read to mean a “dispute of fact.” This reading best comports with judicial interpretations of Rules 50 and …

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

Discovering The Future Of Personal Jurisdiction, Brad Baranowski

Connecticut Law Review

A deluge is coming. The Supreme Court’s two most recent personal jurisdiction cases—Ford Motor Co. v. Montana Eighth Judicial District and Mallory v. Norfolk Southern Railroad—have thrown this area of law into even more flux than before. Because of these cases’ heavy emphasis on the fact-intensive nature of personal jurisdiction law, plaintiffs facing down motions to dismiss based on Federal Rule of Civil Procedure 12(b)(2) are going to start asking an obvious question: If the Supreme Court thinks facts are so important to personal jurisdiction, then should I try to get access to more facts? The result will be more …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Connecticut Law Review

We should be wary of reforms that are attractive in terms of saving time but have unnoticed substantive effects. . . . The great end for which courts are created is not efficiency. It is justice.

Charles Alan Wright (1966)¹

Some of the most significant—and by some estimations the most controversial— transformations of the federal appellate system occurred in the late 1960s and 1970s. Many of the effects are still felt today, including the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks, to the adoption of …

Housing Court: A Balancing Act, Todd Wilcher

UMKC Law Review

This article provides a general description of the Kansas City Municipal Court's Housing Court - its origin, jurisdiction, and process-and discusses the broader themes and competing interests at issue in its cases. Because detached single-family home cases take up most of the space on the dockets, the single-family home theme is a major thread in the fabric of this Article. At the same time, however-in the broader context of the municipal environment-every building, structure and open land is subject to building, zoning, and maintenance regulations. These regulations are pervasive in our modern society, and ensuring they are applied in a …

Avoiding Rejection: Studying When And Why State Courts Decline Certified Questions, Rachel Koehn Breland

Fordham Law Review

In December 2018, the U.S. Court of Appeals for the Sixth Circuit declared Tennessee’s punitive damages cap statute unconstitutional under the state’s constitution. Nearly five years later, however, Tennessee state courts are still reducing punitive damage awards under the statute—and they must, because the Tennessee Supreme Court has never addressed the statute’s constitutionality. See, the Sixth Circuit’s decision was merely an Erie guess as to how Tennessee courts would resolve the unsettled state law issue, and the Tennessee Supreme Court has since indicated that it would reach the opposite conclusion. But the Tennessee high court had already had an opportunity …

Legislating Courts, Michael Pollack

UMKC Law Review

Judges are ordinarily thought of as deciders of a specific sort: people who apply the rule of law to resolve disagreements between the parties appearing before them. But in every state, judges do far more. They are charged by state statutory or constitutional law with a range of quasi-administrative, quasi-legislative, and quasi-executive law enforcement functions. These roles raise a number of theoretical and practical concerns. In many states, though, legislatures have gone even further. They have either wholly delegated significant policymaking power to state court judges or have sat idle while those judges have assumed the mantle of functions that …

Ptsd As Bodily Injury: Perspectives From Neuroscience And Medical Psychology, Jennifer Sweeton

UMKC Law Review

This Comment proposes that PTSD be reconceptualized, and reclassified, as a bodily injury in personal injury cases. In Part II, this Comment reviews the way courts describe PTSD in personal injury cases. Part III examines psychiatric literature and discusses the symptoms and classification of PTSD as both an emotional and medical condition. It also identifies several structural and functional brain alterations associated with PTSD, in addition to physiological changes that occur as a result of PTSD. Part IV asserts that the brain processes physical and emotional pain almost identically, and that most injuries include both emotional and physical components. In …

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Can We Really Be The Change We Wish To See? The Inherent Limitations Of Citizen Suits In Remedying Environmental Injustice Under The Clean Air Act, Alexandra M. George

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Changemakers: Juris Doctorate: Saad Ahmad: Immigration Lawyer Saad Ahmad L'00 Shows That Appellate Practice Isn't Just For Large Firms, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Press Play To Presume: The Policy Benefits Behind The Trademark Modernization Act's Resurrection Of The Irreparable Harm Presumption In False Advertising Cases, Daniel Stephen

William & Mary Law Review

Part I of this Note provides background information on the history and principles surrounding injunctions generally, the Supreme Court’s rulings in eBay and Winter, federal courts’ rulings after these decisions, and the Trademark Modernization Act of 2020. Part II presents anti-presumption advocates’ arguments against the presumption due to longstanding equitable concerns and because, in their view, requiring a showing of irreparable harm is not too difficult. Lastly, Part III discusses why the irreparable harm presumption in the TMA serves as beneficial policy by presenting counterarguments to anti-presumption reasoning and additional benefits of the presumption.

This abstract has been taken …

The Market For Bankruptcy Courts: A Case For Regulation, Not Obliteration, Brook E. Gotberg

BYU Law Review

Large corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve …

Fording The Stream Of Commerce: What Relatedness Tells Us About Stream Of Commerce Cases, Eric Porterfield

St. Mary's Law Journal

The limit personal jurisdiction has on a court’s authority has long relied on a three-element test: (1) the defendant must have certain minimum contacts with the forum state, (2) the lawsuit must arise out of or be connected to the defendant’s contacts with the forum state, and (3) the exercise of jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court of the United States has spoken often about element one—”“minimum contacts.” Many cases detail the nature and quality of a defendant’s conduct that can create the requisite contacts with the forum state to justify …

Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud

St. Mary's Law Journal

No abstract provided.