Civil Procedure Commons^™

Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson

Notre Dame Law Review

Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …

Social Data Discovery And Proportional Privacy, Agnieszka Mcpeak

Cleveland State Law Review

Social media platforms aggregate large amounts of personal information as "social data" that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns—concerns that should help define the proper scope of discovery.

The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens …

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon

Articles

New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is – does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of …

Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew

Fordham Law Review

Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If …

Court Transparency And The First Amendment, David S. Ardia

Cardozo Law Review

"Publicity is the very soul of justice," legal philosopher Jeremy Bentham once warned.1 Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is …

Saticoy Bay Llc V. Jpmorgan Chase Bank, 133 Nev. Adv. Op. 3 (Jan. 26, 2017), Karson Bright

Nevada Supreme Court Summaries

The Court held that under NRCP 41(e) a complaint in intervention is a part of an original action, and thus, the district court’s dismissal of appellant’s complaint was mandatory. However, the district court abused its discretion in dismissing the complaint with prejudice because the district court mischaracterized NRS 116.3116(6) as a statute of limitations when it only limits the amount of actionable unpaid HOA assessments. Finally, the Court found that appellant’s subsequent action would not be barred by statute of limitations.

2017 Mlk Keynote Emory Douglas Program, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Program for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

2017 Mlk Keynote Emory Douglas Educational Foldout, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Educational foldout for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

2017 Mlk Keynote Emory Douglas Educational Foldout, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Educational foldout for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

2017 Mlk Keynote Emory Douglas Program, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Program for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

Precedent And Preclusion, Alan M. Trammell

Scholarly Articles

Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a …

Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman

Scholarly Articles

A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specificity of the causal link between Goodyear’s misconduct and the amount of the civil sanction.

Mountain Or Molehill?, Steven Baicker-Mckee

Duquesne Law Review

The 2015 amendments to the Federal Rules of Civil Procedure were the latest maneuver by the conservative Supreme Court to protect big corporations, and will result in a meaningful restriction of access to justice for individuals and those with limited means. Or, perhaps, they were nothing more than minor language tinkering that leaves judges free to continue their passive bystander approach to case management-tinkering that does little to curb the abusive discovery that leads defendants to make substantial settlement payments to resolve meritless cases simply to avoid exploding litigation costs. Stakeholders reading the same text and the same Advisory Committee …

The Courts And The People In A Democratic System: Against Federal Court Exceptionalism, Simona Grossi

Notre Dame Law Review Reflection

This Essay covers the authors reflections on the role of procedure in our democratic system.

What's Your Story? Every Famous Mark Has One: Persuasion In Trademark Opposition Briefs, Candace Hays

Marquette Intellectual Property Law Review

A key contention of legal writing scholarship is that the legal resolution is rooted in storytelling. The law consists of an endless telling and retelling of stories. Clients tell stories to their lawyers, who must figure out how to frame their client’s narrative into a legal context. Lawyers retell their clients’ stories to judges using pleadings, motions, and legal briefs. Judges and administrators retell these stories in the form of an opinion or verdict.

Storytelling in the legal context is an important element of persuasion. For the purpose of this comment, legal storytelling is defined as the use of fiction-writing …

A Disproportionate Response? The 2015 Proportionality Amendments To Federal Rule Of Civil Procedure 26(B), Matthew T. Ciulla

Notre Dame Law Review

On December 1, 2015, a set of amendments to the Federal Rules of Civil Procedure took effect. Among the most significant and contentious of these changes is the Rules’ renewed focus on the concept of proportionality in the scope of discovery, added in an effort to curb perceived over-discovery. This Note argues that the new Rule 26(b) is not likely to substantially further the Committee’s professed goals. Specifically, this Note shows that, even if over-discovery is a rampant problem with proportionality as its solution—a contention that is not well supported by empirical evidence—the new Rule 26(b) does little that will …

Veil Piercing And Fraudulent Transfer Avoidance In Supplemental Proceedings: How Expanding Statutory Remedies And Enforcement Jurisdiction Can Promote Judicial Economy And Facilitate Judgment Collection, 50 J. Marshall L. Rev. 279 (2017), Guy Macarol

UIC Law Review

This comment will highlight the advantages of consolidating fraudulent transfer avoidance claims and piercing actions within supplemental proceedings, particularly with respect to the important goals of promoting judicial economy and the successful collection of judgments.

Proportional Discovery's Anticipated Impact And Unanticipated Obstacle, Gregory L. Waterworth

University of Baltimore Law Review

No abstract provided.

Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.