Civil Procedure Commons^™

Private Or Public Right? Who Should Adjudicate Patentability Disputes And Is The Current Scheme Really Constitutional?, Jasmyne M. Baynard

Marquette Intellectual Property Law Review

“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh …

Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan

Faculty Articles

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Twombly And Iqbal At The State Level, Roger Michalski, Abby Wood

Faculty Articles

This article contributes to the empirical literature on pleading standards by studying the effect of Twombly and Iqbal at the state level. States account for the majority of civil litigation, yet they are understudied doctrinally and empirically. When we consider pleading at the state level, we can leverage differences across space and time in a way that is impossible with studies of federal courts. Using an array of principled empirical approaches on the best available data, we find no evidence that raising pleading standards affected plaintiff behavior. We observe no decrease in filings and no significant change in complaint length, …

Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds

Georgia Law Review

The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve …

Tc Heartland Llc V. Kraft Foods Group Brands And The Big Debate About East Texas: How A Delaware Case Leaves Patent Venue Unsettled And Presages As Applied Challenges To The Constitutionality Of Narrow Venue Interpretations, 17 J. Marshall Rev. Intell. Prop. L. 232 (2017), Jesse Snyder

UIC Review of Intellectual Property Law

Lack of sanguinity for patent holders was manifest after the Supreme Court’s May 22, 2017, opinion in TC Heartland LLC v. Kraft Foods Group Brands LLC. Yet whether TC Heartland—a case from the U.S. District Court for the District of Delaware—represents a fait accompli against forum shopping remains debatable. Writing for the Court in a unanimous opinion, Justice Clarence Thomas rejected the U.S. Court of Appeals for the Federal Circuit’s interpretation that an intervening amendment to the general venue statute broadened the scope of venue for patent cases. The patent venue statute, 28 U.S.C. § 1400(b), provides that “[a]ny civil …

Lost Esi Under The Federal Rules Of Civil Procedure, Jeffrey A. Parness

SMU Science and Technology Law Review

In 2006, Federal Rule of Civil Procedure (FRCP) 37(e) came into effect, declaring that lost electronically stored information (ESI) could not prompt “sanctions … on a party” absent “exceptional circumstances.” Sanctions were limited to where the loss resulted from “the routine, good-faith operation of an electronic information system.” Effective December 1, 2015, Rule 37(e) now contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI arising from a party’s failure “to take reasonable steps to preserve,” where the lost ESI “should have been preserved in the anticipation or conduct of litigation.” For more culpable conduct, the …

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

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

Roger Williams University Law Review

No abstract provided.

Chapter 467: Increasing Efficiency In California’S Civil Courts, April Perkins

University of the Pacific Law Review

No abstract provided.

Civil Procedure: Pre-Trial & Trial, Amanda Sotak, Timothy Daniels, Andrew C. Whitaker, Amber D. Reece

SMU Annual Texas Survey

No abstract provided.

Ad Hoc Procedure, Pamela K. Bookman, David L. Noll

Faculty Scholarship

Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.

Actual litigation frequently reveals the inadequacy of …

Delusive Exactness In California: Redefining The Claim, Kami Laberge

Loyola of Los Angeles Law Review

My view of primary right may differ from yours, and we have no common ground, only the statement of our opposing views.

Cross-Border Evidence Gathering In Transnational Criminal Investigation: Is The Microsoft Ireland Case The 'Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Labor And The Origins Of Civil Procedure, Luke P. Norris

Law Faculty Publications

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed …

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Democratic Enforcement? Accountability And Independence For The Litigation State, Margaret H. Lemos

Faculty Scholarship

A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to …

Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont

Cornell Law Faculty Publications

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …