Civil Procedure Commons^™

Simplified Courts Can't Solve Inequality, Colleen Shanahan, Anna Carpenter

Faculty Articles

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the …

Mdl As Public Administration, David L. Noll

Michigan Law Review

From the Deepwater Horizon disaster to the opioid crisis, multidistrict litigation—or simply MDL—has become the preeminent forum for devising solutions to the most difficult problems in the federal courts. MDL works by refusing to follow a regular procedural playbook. Its solutions are case specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.

At the heart of these charges is the assumption that MDL is simply a larger version of the litigation that takes place every day in federal district courts. But MDL is not just different in scale …

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Faculty Scholarship

This article — part of a symposium on federal appellate procedure — addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.

In both cases, the …

Class Actions In Canada: The Promise And Reality Of Access To Justice, Camille Cameron

Articles, Book Chapters, & Popular Press

Class actions have found their way into the fabric of Canada’s civil justice system. Class action legislation has been in place in Ontario for 27 years and in British Columbia and Quebec for 25 and 40 years respectively. Trial and appellate courts have had many opportunities to deal with and develop the law of class actions. Notwithstanding their longevity, however, there is little qualitative and empirical research to test many of the justice claims that are made in favour of, and the criticisms that are levelled at, class actions. This is the unsettled terrain into which Professor Kalajdzic ventures. Her …

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror …

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …

The Transformative Potential Of Digital Media & Technology On Class Actions, Caroline Desmond

Lewis & Clark Law Review

In this Note, the author discusses the true potential that digital media and technology hold for class actions beyond effectuating notice to members of a class. Ironically, just as challenges have mounted against the use of the class action device, digital technology has continued to advance in the background to a point where it may be used to break down barriers to class certification now facing would-be class plaintiffs.

However, much of the current discussion across law reviews and blogs as it relates to digital media and class actions pertains to the effect of digital media on notice. Not only …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Goodrich-Amram: Who Were They?, Joel Fishman

Law Faculty Publications

Generations of Pennsylvania judges and lawyers have used Goodrich-Amram Procedural Rules with Forms as a major treatise on the Pennsylvania Rules of Civil Procedure. The authors wrote the first edition beginning in 1940 as Pennsylvania Procedural Rules Service, with Forms: Civil Practice Under the Pennsylvania Rules of Civil Procedure, published by Matthew Bender and Lawyers Co-operative Publishing Company. There were four volumes with updates published as pamphlets refilling the volumes as needed. Two additional publications were A 1963 Supplement to the Rules Binder (binder) and a September 1977 pamphlet to the Rules Binder.2 In 1976, a …

Social Media, Manipulation, And Violence, Allyson Haynes Stuart

South Carolina Journal of International Law and Business

No abstract provided.

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

Uniformity Of State & Federal Procedure, Thomas O. Main

Scholarly Works

No abstract provided.

Clear And Convincing Civility: Applying The Civil Commitment Standard Of Proof To Civil Asset Forfeiture, Stephen J. Moss

American University Law Review

No abstract provided.

Licensing Paralegals To Practice Law: A Path Toward Bridging The Justice Gap In Minnesota, Conner Suddick

Departmental Honors Projects

There are few legal avenues for low-income and other marginalized groups in the United States to seek civil justice. A lack of legal assistance in civil issues can be detrimental to a person’s health and wellbeing. Given this reality, the legal profession must broaden its capacity to serve these needs, and one path is to embrace the aid of paralegals. In 2016, the legal community of Minnesota had conversations about whether the state should provide limited licenses to paralegals. To study models from across the country, the Minnesota State Bar Association (MSBA) formed the Alternative Legal Models Task Force. In …

Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main

Scholarly Works

In this essay, Professor Main offers one original observation and poses two new questions about the vanishing civil trial.

Mediation: An Unlikely Villain, Thomas O. Main

Scholarly Works

Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally …

Finding Prejudice From Lost Esi: An Analysis Of Courts’ Standards Under Amended Federal Rule Of Civil Procedure 37(E), Thomas J. Joyce

Oklahoma Law Review

No abstract provided.

Robots Are Coming: A Discussion Of Choice-Of-Law Issues And Outcomes In Telesurgical Malpractice, Megan Cloud

Texas A&M Law Review

New technology frequently emerges that challenges the legal status quo. Early adopters must then grapple with uncertainty over how the law will apply to novel legal quandaries. There is no better example of this than in medicine; however, the health care field is notoriously risk averse. Despite this, the practice of medicine stands to gain tremendously from these technological advancements. One such advancement is the relatively new ability to perform robotic surgery in which the surgeon is remote from the patient. Widespread use of this technology would improve rural access to surgical care, as well as improve access to more …

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

The Future Of Multidistrict Litigation, Jay Tidmarsh, Daniela Peinado Welsh

Journal Articles

The occasion for this Essay is the fiftieth anniversary of the enactment of the multidistrict-litigation statute, 28 U.S.C. § 1407. Multidistrict litigation has quietly become a central feature of federal litigation, sweeping one-third or more of all federal civil cases each year into aggregate proceedings. Recent commentary on multidistrict litigation has been highly critical of the “Wild West” quality of the proceedings, which arguably benefit repeat-player lawyers at the expense of their clients’ interests and autonomy. Reform of the process now seems likely. This Essay begins by describing the features, most historically contingent, that have brought multidistrict litigation to this …