Civil Procedure Commons^™

Riding The Wave Or Drowning?: An Analysis Of Gender Bias And Twombly/Iqbal In Title Ix Accused Student Lawsuits, Bethany A. Corbin

Fordham Law Review

This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in …

Jury Deliberation, Giuliana Pietrantoni

The Review: A Journal of Undergraduate Student Research

Juries are tasked with the duty of deliberating and applying the law to the case at hand. But it is unclear whether juries deliberate or deliberate well enough. Factors which may affect jury deliberation are the motivation of jurors, characteristics of jurors, emotions during and after trial, bargaining, charges, and dissenters. This paper argues that jurors do engage in rigorous dialogue which eventually results in compromises, although whether this creates an unjust verdict is unclear.

A Modern Look At The Right To A Civil Jury Trial Under The Maine Constitution, Carolyn A. Liegner

Maine Law Review

The right to a civil jury trial is a cornerstone of the American legal system. The Maine Constitution promises an even broader right to a civil jury trial than is offered by the federal Constitution and many other states. Article I, Section 20 states: “In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced.” The exception in the provision has been the subject of multiple interpretations by the Maine Supreme Judicial Court, sitting as the Law Court, since the …

The Difficulties Of Encouraging Cooperation In A Zero-Sum Game, Jacob R. Kreutzer

Maine Law Review

The Federal Rules of Civil Procedure generally provide only the “rules of the road” on which litigation is conducted. However, in some areas the Rules step outside of this role and attempt to overtly encourage cooperation. One such rule is Rule 68, which allows a defendant to make an offer of judgment to the plaintiff, and provides that if the plaintiff refuses and subsequently wins less money than the defendant offered, the plaintiff must cover the defendant’s costs. Rule 68 was launched into prominence when the Supreme Court ruled, in Marek v. Chesney that a Rule 68 offer could negate …

Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Trp Int’L, Inc. V. Proimtu Mmi Llc, 133 Nev. Adv. Op. 13 (Apr. 6, 2017), Elise Conlin

Nevada Supreme Court Summaries

The Court held that an order granting a motion to reconsider and vacate the final judgment is not appealable as a special order after final judgment. There is no final judgment if that motion to vacate is granted; thus, there cannot be a special order after a final judgment.

Trending @ Rwu Law: Louise Ellen Teitz's Post: The Supreme Court And Cross-Border Litigation 04-04-2017, Louise Ellen Teitz

Law School Blogs

No abstract provided.

Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

Busting Up The Pretrial Industry, Andrew S. Pollis

Fordham Law Review

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to …

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Indiana Law Journal

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a …

Attaching Domestic Assets To Remedy High Seas Pollution: Rule B And Marine Debris, Jonathan M. Gutoff

Law Faculty Scholarship

No abstract provided.

La Continuidad De Los Juicios Con El Nuevo Gobierno: El 2 X 1 / The Continuity Of The Judgments With The New Government: The 2 X 1, Julie Olesky

Independent Study Project (ISP) Collection

La presente investigación se enfoca en los juicios actuales a los responsablesde la última dictadura cívico-militar en Argentina y en una dilucidación en torno al respaldo o falta de apoyo hacia estos procesos por parte de la gestión del presidente Mauricio Macri. A partir de visitas a la ESMA, la asistencia a un juicio, hasta entrevistas con defensores de derechos humanos y profesores y estudiantes de sociología y derecho, se indaga acerca de la importancia y el significado de la justicia en Argentina, cómo opera la justicia, cómo se combate la impunidad, y cómo luchan los organismos de derechos humanos …

Erie Step Zero, Alexander A. Reinert

Fordham Law Review

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: …

What Does It Mean To Say That Procedure Is Political?, Dana S. Reda

Fordham Law Review

Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage …

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.

Parochial Procedure, Maggie Gardner

Cornell Law Faculty Publications

The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.

This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our …

Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

Busting Up The Pretrial Industry, Andrew S. Pollis

Fordham Law Review

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to …