Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules,
2018
Vanderbilt University Law School
Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard
Vanderbilt Law Review
After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938, and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court. This uncertainty caused unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of …
Bespoke Discovery,
2018
Vanderbilt University Law School
Bespoke Discovery, Jessica Erickson
Vanderbilt Law Review
The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes.' With forum selection clauses, parties can decide where they will litigate future disputes.2 With fee-shifting provisions, they can choose who will pay for these suits. 3 And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether.4 Parties can also waive their right to appeal,5 their right to a jury trial,6 and their right to file a class action.7 Bespoke procedure, in other words, is commonplace in the United States. Far less common, however, …
A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review,
2018
Vanderbilt University Law School
A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor
Vanderbilt Law Review
We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …
One-Way Fee Shifting After Summary Judgment,
2018
Vanderbilt University Law School
One-Way Fee Shifting After Summary Judgment, Cameron T. Norris
Vanderbilt Law Review
New, defendant-friendly amendments to the Federal Rules of Civil Procedure took effect in December 2015. Included in the amendments were several provisions designed to curb the cost of discovery. Although modest, the discovery-related provisions created more controversy than perhaps anything the rule makers have done in recent memory. Yet the new amendments were only part of what corporate defendants asked the rule makers to do. Left undone was a much more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. To the surprise of many commentators, the …
Opting Out Of Discovery,
2018
Vanderbilt University Law School
Opting Out Of Discovery, Jay Tidmarsh
Vanderbilt Law Review
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
A Proposal To End Discovery Abuse,
2018
Vanderbilt University Law School
A Proposal To End Discovery Abuse, Alexandra D. Lahav
Vanderbilt Law Review
When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …
Aligning Incentives And Cost Allocation In Discovery,
2018
Vanderbilt University Law School
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd
Vanderbilt Law Review
In this Article, we explain that either a rule requiring both parties to share the costs of discovery ("cost-sharing rule") or a rule creating a risk for both parties that they will bear the entire costs of discovery ("cost-shifting rule") would minimize many of the negative incentives that exist under either a strict producer-pays or requester pays rule. Whereas the producer-pays rule creates incentives for excessive discovery because requesters can externalize the costs of requests and use discovery to impose costs on producing parties to force settlement, requesters under a cost-sharing or cost-shifting rule cannot externalize the costs of discovery …
A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice,
2018
Vanderbilt University Law School
A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau
Vanderbilt Law Review
symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor …
Law School News The First Circuit At Rwu Law 10/03/2018,
2018
Roger Williams University School of Law
Law School News The First Circuit At Rwu Law 10/03/2018, Michael M. Bowden, Julia Rubin
Life of the Law School (1993- )
No abstract provided.
Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018,
2018
Providence Journal
Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Jurisdiction In The Trump Era,
2018
UC Hastings College of Law
Jurisdiction In The Trump Era, Scott Dodson
Fordham Law Review
The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s presidency …
Asbestos Trust Transparency,
2018
Shook, Hardy & Bacon L.L.P.
Asbestos Trust Transparency, Mark A. Behrens
Fordham Law Review
Originally and for many years, the primary defendants in asbestos cases were companies that mined asbestos or manufactured amphibole-containing thermal insulation. Hundreds of thousands of claims were filed against the major asbestos producers, such as Johns-Manville Corp., Owens Corning Corp., and W.R. Grace & Co. By the late 1990s, asbestos litigation had reached such proportions that the U.S. Supreme Court noted the “elephantine mass” of cases and referred to the litigation as a “crisis.” Mass filings pressured “most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation. Following a 2000–2002 …
Access To Justice, Rationality, And Personal Jurisdiction,
2018
Texas A&M University School of Law
Access To Justice, Rationality, And Personal Jurisdiction, Adam N. Steinman
Faculty Scholarship
After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic …
#Sowhitemale: Federal Civil Rulemaking,
2018
Northwestern Pritzker School of Law
#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman
Northwestern University Law Review
116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …
Civil Litigation Reform In The Trump Era: Threats And Opportunities
Searching For Salvageable Ideas In Ficala,
2018
Fordham University School of Law
Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson
Fordham Law Review
The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of reappearing, …
What We Don't Know About Class Actions But Hope To Know Soon,
2018
University of Pennsylvania Law School
What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler
Fordham Law Review
Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and workers. In …
The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective,
2018
University of California, Berkeley
The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt
Fordham Law Review
2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article …
The Virtues Of Complexity: Judge Marrero's Systemic Account Of Litigation Abuse,
2018
Benjamin N. Cardozo School of Law
The Virtues Of Complexity: Judge Marrero's Systemic Account Of Litigation Abuse, Charles M. Yablon
Cardozo Law Review
No abstract provided.
The Cost Of Rules, The Rules Of Costs,
2018
United States District Judge, Southern District of New York
The Cost Of Rules, The Rules Of Costs, Victor Marrero
Cardozo Law Review
No abstract provided.
Valley Health Sys. V. Estate Of Jane Doe, 134 Nev. Adv. Op. 76 (Sept. 27, 2018) (En Banc),
2018
University of Nevada, Las Vegas -- William S. Boyd School of Law
Valley Health Sys. V. Estate Of Jane Doe, 134 Nev. Adv. Op. 76 (Sept. 27, 2018) (En Banc), Amanda Stafford
Nevada Supreme Court Summaries
The Court held that the district court acted within its discretion in sanctioning the party for discovery violations. Further, it determined that the district court’s citation to the Nevada Rules of Professional Conduct causes reputational harm that amounts to a sanction and that the district court correctly found that the attorneys did in fact violate Nevada Rule of Professional Conduct 3.3(a)(1).
