Civil Procedure Commons^™

So You Are Saying That There’S A Chance: Strategies For Challenging Compelled Arbitration, Elizabeth Graves

Lewis & Clark Law Review

Significant scholarship has been dedicated to recent jurisprudence on arbitration clauses and class action waivers in modern contracts. Given the difficult landscape of legislation and court decisions favoring arbitration, the availability of the class action model as a vehicle for relief has dwindled. Although the prospects for litigants who wish to bring class claims in courts may be daunting, this Note has discovered some strategies that still may prove useful for future litigation.

I reviewed putative class action cases in which a party moved to compel arbitration between January 1, 2017 and April 1, 2019 to identify recent, effective tactics …

The Procedural Foundations Of Intellectual Property Information Regulation, Ira Steven Nathenson

Lewis & Clark Law Review

In the academy, legal scholarship on intellectual property, or “IP,” abounds, most of it focusing on the substance of IP. Far less, however, is written about the procedural aspects of IP. This Article focuses on the often-ignored proce- dural foundations of IP and suggests—at a minimum—that procedure so thoroughly pervades IP that IP’s true foundations might be in procedure rather than substance. Considering “IP as procedure” may further allow us to recog- nize that IP procedures may need to be reconceptualized within a broader field of information regulation procedures.

I. II.

Rule 43(A): Remote Witness Testimony And A Judiciary Resistant To Change, Christopher Fobes

Lewis & Clark Law Review

Technology has improved our lives in countless ways. In 1996, it made its way into our federal courtrooms and the Federal Rules of Civil Procedure when the Congress codified Rule 43(a). Rule 43(a) permits a witness to testify remotely via telephone or video transmission upon a showing of good cause. Despite this large step into the modern era, some courts are pressed to exclude a witness’s remote testimony because of Rule 43(a)’s burdensome good-cause standard and the risks implicated by such testimony. The judiciary has struggled to find cohesion in determining when remote witness testimony is permissible. This Note critiques …

Preface, Jennie Lee Anderson

Lewis & Clark Law Review

On November 1–2, 2019, the Pound Civil Justice Institute and Lewis & Clark Law School together presented a unique academic symposium, addressing “Class Actions, Mass Torts, and MDLS: The Next 50 Years.” This symposium brought together distinguished legal academics, judges, and practitioners to consider the present status of class actions, mass torts, and multidistrict litigation in the United States, as well as possible future developments.

Foreword, Robert Klonoff

Lewis & Clark Law Review

This Symposium is entitled, “Class Actions, Mass Torts, and MDLs: The Next 50 Years.” It consists of a collection of articles by leading scholars and practitioners. All of the articles were presented at a live conference—co-sponsored by the Pound Civil Justice Institute—held at Lewis & Clark Law School on November 1 and 2, 2019.

Texas Mdl, D. Theodore Rave, Zachary D. Clopton

Lewis & Clark Law Review

Federal multidistrict litigation (MDL) gets all the attention. This mechanism for consolidating cases filed around the country in a single federal district court for pretrial proceedings has become the dominant mode of resolving mass torts in U.S. courts. But not all mass adjudications find their way into federal court. Texas, like about half of the states, has developed an MDL mechanism to coordinate proceedings within its own courts. In this Essay, we examine the history, doctrine, and data of Texas MDL. Although Texas modeled its approach on the federal MDL statute, the Texas MDL system differs in important ways from …

What Do Mdl Leaders Do? Evidence From Leadership Appointment Orders, David L. Noll

Lewis & Clark Law Review

In federal multidistrict litigation (MDL), district courts regularly appoint attorneys to manage the litigation of cases that are transferred to a single district court for coordinated pretrial proceedings. Orders appointing MDL leaders serve as a constitution or charter for a particular MDL, reallocating functions that otherwise would be performed by individually retained plaintiffs’ attorneys to court-appointed leaders. As such, they perform a crucial role in the “MDL model” of aggregate litigation and settlement. Yet in spite of their importance, knowledge of these orders is mostly folk wisdom.

This Article presents preliminary findings from a study of leadership appointment orders in …

Layers Of Lawyers: Parsing The Complexities Of Claimant Representation In Mass Tort Mdls, Lynn A. Baker, Stephen J. Herman

Lewis & Clark Law Review

The individual plaintiff in an MDL is subject to the efforts and decisions of numerous different attorneys, including many whom the plaintiff did not choose but who stand to share in any fees resulting from the plaintiff’s case. Which lawyers effectively represent the MDL plaintiff, at what point(s) in time, for what purpose(s), and with what obligations and potential liability to that plaintiff? What obligations and potential liability do the MDL leadership attorneys have to their own individually retained clients and other litigants in the MDL, and how should these attorneys handle any perceived conflicts in their obligations to the …

Procedural Self-Inflicted Wounds?, Joshua P. Davis, Brian J. Devine

Lewis & Clark Law Review

A proposal has recently come before the Federal Civil Rules Advisory Commit- tee to expand the ability of parties in multidistrict litigation to seek immediate interlocutory appellate review. This Essay suggests that the proposal is unwise as a matter of policy. It would make MDL litigation more expensive and less efficient. Counterintuitively, it may even harm the very large corporations who are championing the change. This Essay explains why that might occur—why large corporate defendants may pursue legal innovations that harm them—a possibility with implications well beyond interlocutory appellate review.

Multidistrict Litigation And Common Law Procedure, Alexandra D. Lahav

Lewis & Clark Law Review

On the 50th anniversary of the Multidistrict Litigation Act, the Act has gotten more attention than ever. One area that has led to significant controversy is the use of judicial discretion to craft procedures to manage MDLs. It is generally agreed that judges exercise discretion to create innovative procedures to resolve large-scale aggregate litigation transferred to their courts and that judges learn from approaches in previous MDLs that they think were successful in crafting these procedures. The controversy is that some think that this procedural approach is both exceptional and lawless. This Essay argues against this view, showing how the …

What Is A Fair Price For Objector Blackmail? Class Action Objectors And The 2018 Amendments To Rule 23, Elizabeth J. Cabraser, Adam N. Steinman

Lewis & Clark Law Review

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

In Defense Of The Cy-Pres-Only Class Action, Robert G. Bone

Lewis & Clark Law Review

Cy pres is frequently used to dispose of class action settlement funds, yet it is one of the most controversial aspects of class action practice. Perhaps the most contested use of cy pres is what I call the “cy-pres-only class action”: a settlement class action in which the judge certifies a class and approves a settlement that expressly provides for a third-party charity to receive all the settlement funds. In these cases, the judge exercises her judicial power to enable a lawsuit that compensates a third party who does not have legal rights at stake and does so without providing …

The Importance Of Cy Pres In Modern Class Action Jurisprudence And Myths Concerning Its Use, Gerson H. Smoger

Lewis & Clark Law Review

When class actions resolve, it is common for some or even all funds paid to the class to remain undistributed. All U.S. circuits, 40 states, and the Class Action Fairness Act have permitted undistributed funds to be distributed as cy pres. Recently, a few commentators have voiced constitutional objections to cy pres, based upon standing pursuant to Article III, the Rules Enabling Act, and the First Amendment. However, these analyses generally ignore the congressional mandate found within Rule 23 and the power of the courts to supervise cy pres distribution. Finally, the following recommendations are made: such awards should not …

Collective Preclusion And Inaccessible Arbitration: Data, Non-Disclosure, And Public Knowledge, Judith Resnik, Stephanie Garlock, Annie J. Wang

Lewis & Clark Law Review

When courts enforce mandates to arbitrate, jurists describe themselves as respecting the individuals’ autonomy to enter into contracts that route claimants to a process that is more user-friendly than adjudication. But those rationales are disjunctive with the practices of providers of goods and services and of employers. These companies neither offer individuals choices about dispute resolution mechanisms nor welcome the exchange of information about experiences with arbitration. Instead, companies impose obligations to arbitrate and set the terms. In addition to the increasingly commonplace bans on joint and collective actions in any forum, many providers and employers also seek to mandate …

Deregulation And Private Enforcement, Brian T. Fitzpatrick

Lewis & Clark Law Review

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only …

Symposium Interview On Aggregate Litigation, Arthur R. Miller, Robert Klonoff

Lewis & Clark Law Review

Professor Arthur R. Miller joined Professor Robert Klonoff for a Q&A session at Lewis & Clark Law School.

Multidistrict Litigation And Personal Jurisdiction, Zachary T. Nelson

Lewis & Clark Law Review

Under the Fourteenth Amendment’s Due Process Clause, a court cannot lawfully adjudicate a party’s rights or obligations unless, among other things, that court possesses sufficient personal jurisdiction over the party. The means by which a court may obtain such jurisdiction have grown increasingly narrow in recent years. Parallel to that trend has been the meteoric rise of multidistrict litigation (MDL), in which the Judicial Panel on Multidistrict Litigation transfers and consolidates numerous civil cases in a single federal court that, in many instances, lacks personal jurisdiction over one or more parties. Although MDL is statutorily limited to “pretrial proceedings,” 97% …

A Return To The Traditional Use Of The Writ Of Mandamus, Audrey Davis

Lewis & Clark Law Review

A litigant filing a petition for a writ of mandamus takes a gamble. If unsuc- cessful, the petitioner risks not only wasting time and effort but also insulting the district court judge by calling into question his or her ability to carry out the basic duties of a judge. And even if successful, the petitioner still faces the risk of returning to the district court on less-than-friendly terms. More than anything, however, the writ of mandamus poses such risks because appellate courts have employed widely varying approaches in developing a standard for granting the writ. In order to offer greater …

Fraudulent Joinder, Federalism, And The Twombly/Iqbal Problem, Charles W. Oldfield

Kentucky Law Journal

No abstract provided.

Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack

Touro Law Review

No abstract provided.