Civil Procedure Commons^™

Will The Jury System Survive The Peña-Rodriguez Exception To Rule 606(B)?: The Court’S Response To Racial Discrimination By A Juror Leaves The Future Of The American Jury Trial System In Jeopardy, Taurus Myhand

Scholarly Works

The enforcement of no-impeachment rules has been a long-standing tradition in the United States preventing jurors from offering testimony as to impeach their own verdict. In March 2017, the Supreme Court changed course from centuries of jurisprudence and superseded the Federal Rules of Evidence with a new exception to Rule 606(b) in the Court’s decision in Peña-Rodriguez v. Colorado. The Court’s effort to “root out” racial bias in the justice system resulted in the debunking of the legislative authority granted to the Congress while creating an exception that does little, if anything, toward eliminating racial bias during jury deliberations. In …

The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife

Law Student Publications

"State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, …

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

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 …

The Parity Principle, Luke P. Norris

Law Faculty Publications

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues …

Facilitators’ Report: A Restorative Review Of The In-Custody Death Of Jason Leblanc, Jennifer Llewellyn, Jacob Mcissac, Heather Mcneil

Reports & Public Policy Documents

This report has been prepared by the process facilitation team made up of: Jennifer Llewellyn, Jake MacIsaac, Heather McNeil. The central parties to the process have reviewed the report for accuracy. The parties committed at the outset of the process to share the facts of what happened in this case and the justice process they undertook together to learn from what happened and to ensure that these lessons contribute to improving the lives of individuals and families in Nova Scotia. As such, this report does not make findings of fact or recommendations. It describes the situation, the parties involved, the …

Class Problem!: Why The Inconsistent Application Of Rule 23'S Class Certification Requirements During Overbreadth Analysis Is A Threat To Litigant Certainty, David I. Berman

Fordham Law Review

Rule 23 of the Federal Rules of Civil Procedure is home to the class action device. It is well-documented that this rule significantly impacts our legal system. As a result, the need for its effective utilization has been apparent since its introduction. Despite this, federal courts have inconsistently applied the rule during their analyses of overbroad class definitions at the class certification stage. Consequently, parties involved in such litigation have been exposed to unnecessary costs and the potential for forum shopping. Nonetheless, this judicial inconsistency has gone largely unrecognized because it does not implicate the results of class certification. Hence, …

International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish

Faculty Journal Articles and Book Chapters

Written by international and extraterritorial law scholars, the attached amicus brief was submitted in the U.S. v. Microsoft case. That case involves whether Congress, when it enacted the Stored Communications Act, intended to provide federal and local law enforcement authority to unilaterally seize the private email communications of foreign citizens stored abroad.

The amicus brief explains how the Charming Betsy canon and the law of extraterritoriality are part of a well-defined body of law the U.S. Supreme Court has developed for determining how American law applies abroad. These doctrines exist independently: one aims to avoid unsanctioned violations of international law. …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Changing Times, Changing Relationships For The Bench And Civil Bar, Paula Hannaford-Agor

Faculty Publications

For the past century, the interests of the bench and bar in delivering justice to civil litigants were closely aligned. As civil litigants’ needs change, courts recognize they must lead the way on civil justice reforms both for their own sake and to encourage productive change in civil legal practice.

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

More Than Fraud: Proving Fraud On The Court, Stephen Van Doran

Bankruptcy Research Library

(Excerpt)

In all adversarial proceedings, litigants have a duty of full disclosure and honesty with the court. Typically, where a party obtains a judgment through fraudulent conduct, the only way to overturn that judgment is through a motion to vacate pursuant to Federal Rule of Civil Procedure 60(b)(3).

A final judgment can also be overturned by a motion, pursuant to Federal Rule of Civil Procedure 60(d)(3), as incorporated into the Bankruptcy Rules by Rule 9024, to vacate a judgment based upon fraud on the court. Fraud on the court is generally limited to instances where “the integrity of the judicial …

Recent Developments In Aviation Law, Justin V. Lee

Journal of Air Law and Commerce

No abstract provided.

Bespoke Discovery, Jessica Erickson

Law Faculty Publications

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. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …

Solving The Riddle! Bridging The Gap In The Federal Circuit’S Definition Of “Regular And Established Place Of Business” To Prevent Patent Trolls From Forum Shopping, Michael A. Morales

Touro Law Review

No abstract provided.

Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes

Nevada Supreme Court Summaries

The Court considered whether a party may appeal a district court’s order granting an NRCP 60(b) motion to set aside a final judgment for fraud upon the court. The Court held the district court’s order interlocutory and may not be appealed until a final judgment is entered.The Court held that the district court was not barred from considering the NRCP 60(b) motion and the district court did not abuse its discretion in granting relief based on fraud upon the court.

Franchise Tax Board Of California V. Hyatt, 133 Nev. Adv. Op. 102 (Dec. 26, 2017), Rebecca L. Crooker

Nevada Supreme Court Summaries

The Court determined that discretionary-function immunity does not apply to intentional tort and bad faith claims. Under comity principles, the Franchise Tax Board was entitled to the $50,000 statutory cap that would extend to Nevada businesses under NRS 41.035(1). The Court additionally recognized false light invasion of privacy as a tort cause of action distinct from other privacy torts, and adopted the Restatement’s sliding-scale approach in determining the amount of evidence necessary to establish a claim for intentional infliction of emotional distress.

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …