Litigation & Procedure eJournal最新文献

{"title":"Forum Selection Clauses, Non-Signatories, and Personal Jurisdiction","authors":"J. Coyle, Robin Effron","doi":"10.2139/ssrn.3846436","DOIUrl":"https://doi.org/10.2139/ssrn.3846436","url":null,"abstract":"Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black-letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses against non-signatories. First, there is the unfairness of binding a litigant to a contract without her consent. Second, there is the danger that relying on a forum selection clause to assert personal jurisdiction over a non-signatory may be inconsistent with due process. This Article critiques the rules that determine whether a non-signatory is bound by a forum selection clause. It first documents the emergence of a new doctrine — the closely-related-and-foreseeable test — that the courts have created to facilitate this practice. It then argues that the test serves as a portal to a parallel due process universe in which casual contacts and breezy assertions of foreseeability can connect a defendant to a forum selection clause in a way that would be, at best, highly scrutinized were they construed as potential minimum contacts with the forum. In a world of ever-tightening personal jurisdiction standards, courts have created a bubble of nearly unlimited jurisdiction for parties in close proximity to forum selection clauses. To address this problem, the Article proposes reforms that would provide more robust protections to non-signatory defendants and, as importantly, impose a degree of order on an increasingly fractured due process landscape.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"19 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120916555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federal Civil Procedure Summary (2021)","authors":"A. Babich","doi":"10.2139/ssrn.3416886","DOIUrl":"https://doi.org/10.2139/ssrn.3416886","url":null,"abstract":"This is an attempt to boil down the basics of federal civil procedure into an easily digestible summary.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127157256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion","authors":"Friedrich Hamadziripi, P. Osode","doi":"10.17159/1727-3781/2021/V24I0A8824","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A8824","url":null,"abstract":"The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the Companies Act, 2006 (United Kingdom). The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime’s achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125790376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation on Mock Jurors' Decisions in Civil Cases","authors":"Jessica M. Salerno, J. Campbell, Hannah J. Phalen, S. Bean, V. Hans, Daphna Spivack, L. Ross","doi":"10.2139/ssrn.3733136","DOIUrl":"https://doi.org/10.2139/ssrn.3733136","url":null,"abstract":"Purpose: Three experiments tested the utility of minimal and extended voir dire questions in edicting mock jurors’ verdicts and damage awards in civil cases, and whether the biasing impact of mock jurors’ preexisting attitudes on case judgments could be reduced or eliminated if they undergo voir dire or judicial rehabilitation before judging the case. \u0000 \u0000Method: In three experiments, each focusing on a different case, online participants (total N = 2,041) were randomly assigned to experience (a) no voir dire, minimal voir dire focusing on 20 previous legal experience and self-identification of biases, or extended voir dire focusing on specific attitudes about civil litigation, parties, and laws, before judging the case and (b) judicial rehabilitation in which a judge asks them if they can set their biases aside and judge the case impartially or not. Participants reviewed a civil case, made case judgments, and completed bias \u0000awareness measures. \u0000 \u0000Results: With the exception of widow status, demographic information and minimal voir dire questions did not predict case judgments, but many extended voir dire responses significantly 37 predicted both verdicts and damage awards. Neither responding to voir dire questions before (versus after) judging the case, nor experiencing judicial rehabilitation, reduced the biasing impact of mock jurors’ preexisting attitudes on their case judgments. Further, judicial rehabilitation led jurors to report that they were less biased in their judgments than those who did not experience rehabilitation—despite not actually reducing their bias. \u0000 \u0000Discussion: Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases 54 has little utility. Further, neither calling awareness to these potential biases during voir dire, nor trying to motivate jurors to control their biases via judicial rehabilitation reduced the impact of mock jurors’ reexisting attitudes on their judgments. \u0000 \u0000Keywords: bias, civil jury, jury decision making, jury instructions, jury selection, voir dire \u0000 \u0000Public interest statement: Voir dire is much more effective in predicting verdicts and damage awards in civil cases when the questions assess specific attitudes toward civil litigation and 15 parties compared to a more minimal voir dire that relies on jurors reporting demographic characteristics or self-identifying their own biases in response to general, open-ended questions. Neither drawing participants’ awareness to their own biases during voir dire nor undergoing judicial rehabilitation reduced the impact of their preexisting biases on their decisions—although judicial rehabilitation made them think they were less biased.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"975 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123079378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Frivolous Defenses","authors":"Thomas D. Russell","doi":"10.2139/ssrn.3664917","DOIUrl":"https://doi.org/10.2139/ssrn.3664917","url":null,"abstract":"This article is about civil procedure, torts, insurance, litigation, and professional ethics. This is an empirical piece with data drawn from a sample of 356 answers to 298 complaints in car crash lawsuits to identify various ways that, I argue, insurance defense lawyers evade the rules of civil procedure and, frankly, act unprofessionally.<br><br>The empirical center of this piece examines 356 answers in car crash personal injury cases in Colorado’s district courts. First, I situate these cases within dispute pyramid elements including the total number of miles-traveled within Colorado and also with respect to the volume of civil litigation.<br><br>The piece engages several articles that Stanford Law Professor Nora Freeman Engstrom has written about the plaintiffs’ bar. This article is the opening article in a multiple-piece conversation with her. I show how insurance defense mill lawyers ignore the rules of civil procedure and the Code of Professional Conduct. <br> <br>Next, I examine the answers of what I term insurance defense mill attorneys. Using my sample of 356 answers and 298 complaints, I examine the defense attorney’s departure from the Colorado Rules of Civil Procedure especially Rule 8. In particular, I count and analyze lawyers use of the claims that they need not answer because an averment:<br><br>1) calls for a legal conclusion; <br><br>2) is directed at a co-defendant; or <br><br>3) that a statute or document \"speaks for itself.\" <br><br>I generally discuss the failure to investigate claims before answering, which, in my opinion, violates Rule 11 and the Code of Professional Conduct.<br><br>Third, the title derives from the last empirical section, which examines the pleading of lists of so-called “affirmative defenses.” I show that on average, each defense attorney includes nine items within a list of defenses. Few are true affirmative defenses. For 90 percent of the lists of defenses, insurance defense attorneys plead no factual support whatsoever.<br><br>The piece has some humor, too.<br><br>See also Russell, Disrupting Frivolous Defenses (Available on SSRN.)<br>","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116793981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Matter of Interpretation? Understanding and Applying Mediation Standards for the Cross-Border Enforcement of Mediated Settlement Agreements","authors":"Dorcas Quek Anderson","doi":"10.2139/ssrn.3674809","DOIUrl":"https://doi.org/10.2139/ssrn.3674809","url":null,"abstract":"This article focuses on the future role to be played by mediation standards in view of the signing of the Singapore Convention on Mediation. It argues that the convention has elevated the standing of mediation standards from soft regulatory codes to quasi‐legal grounds impacting the enforcement of mediated settlements. However, the inherently generalized nature of mediation standards does not render them amenable to contextualized interpretation. More significantly, the courts may adopt the wrong frame when construing mediation standards. It is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross‐border understanding of standards.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121026315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thoughts on Public Charge Stay Order and Nationwide Injunctions","authors":"Geoffrey A. Hoffman","doi":"10.2139/ssrn.3528306","DOIUrl":"https://doi.org/10.2139/ssrn.3528306","url":null,"abstract":"The concurrence by Justices Gorsuch and Thomas in the Public Charge stay case before the Supreme Court relied solely on the nationwide injunctive relief issue and did not address the merits of the stay application. This paper considers the ramifications of this move. In discussing nationwide stays the concurrence is able to sidestep any substantive issue, such as the equitable factors and the administration's policy expanding the definition of public charge. I draw a comparison to District Judge Hanen's well thought-out decision in the DACA-related litigation, where he denied injunctive relief to the government which would have ended DACA. While noting the difficulties connected with \"dueling injunctions,\" a nationwide injunction here may be appropriate given we are dealing with a national policy, the defendant is an agency of the federal government operating nationally, the issue is an immigration policy, and the parties impacted include potentially everyone who comes into contact with USCIS who seeks adjustment of status.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"145 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130951391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Manna from Heaven for Judges – Judges’ Reaction to a Quasi-Random Reduction in Caseload","authors":"C. Engel, Keren Weinshall Margel","doi":"10.2139/ssrn.3521220","DOIUrl":"https://doi.org/10.2139/ssrn.3521220","url":null,"abstract":"What is the impact of caseload on judicial decision-making? Is increasing judicial staff effective in improving judicial services? To address these questions, we exploit a natural, near-randomized experiment in the Israeli judiciary. In 2012, six senior registrars were appointed in two of the six magistrate’s court districts. The choice of districts was motivated by reasons unrelated to judicial performance. In these two districts, the civil caseload per judge was substantially reduced. We find that the reduction had a significant impact on the process and outcomes of judicial decision-making. Judges working in courts with reduced caseload invested more resources in resolving each case. The effect is mostly to the advantage of plaintiffs, who were more likely to win, recover a larger fraction of their claim, and be reimbursed for litigation costs. We discuss the implications for judicial management and theories about judicial decision-making.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"30 15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122959295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Foreignness'","authors":"M. Gardner","doi":"10.1163/2352-0272_emho_com_019465","DOIUrl":"https://doi.org/10.1163/2352-0272_emho_com_019465","url":null,"abstract":"What does it mean for a case to be “foreign-cubed�?? More specifically, when is a plaintiff, a defendant, or course of conduct “foreign�?? The answer is not as straightforward as it may initially appear. Different doctrines draw the line differently when it comes to legal permanent residents, interrelated corporate entities, or conduct that occurs across multiple countries (or perhaps — in cases involving international waters or Bitcoin transactions — in no country). This essay, written for the twenty-fifth annual Clifford Symposium, considers the meaning and relevance of “foreignness�? across procedural doctrines. The variability of foreignness underscores how the concept of foreignness is not a simple binary distinction. Rather, what counts as “foreign�? depends on the question being asked, with the line between “here�? and “there�? varying depending on the doctrine and the context. The complexity of foreignness should in turn challenge judges, litigants, and observers to question what rhetorical work the concept of “foreignness�? is doing in judicial reasoning. The concept of foreignness, particularly when unmoored from specific doctrines, is not self-explanatory. Labels like “foreign-cubed�? are not objective determinations as much as tropes that signal the author’s gestalt conception of a case. The goal of this essay is thus two-fold: to map some of the different meanings of “foreignness�? in procedure in order to encourage its more precise invocation, and to caution against the rhetorical use of “foreignness�? as a self-explanatory short-hand for dismissing, or dismissively treating, cases in U.S. courts.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128037529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Discovery and Disclosure in a Signaling Model of Final Offer Arbitration","authors":"A. Farmer, Paul Pecorino","doi":"10.2139/ssrn.3407630","DOIUrl":"https://doi.org/10.2139/ssrn.3407630","url":null,"abstract":"We develop a signaling model of final offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator and if no agreement is reached, the arbitrator must select one of the two submitted proposals. Within the context of this model we analyze costly voluntary disclosure and costly discovery. In standard litigation models, costly disclosures may occur in the signaling game, but costly discovery never takes place. By contrast, under FOA if information transmission takes place prior to the submission of proposals to the arbitrator, costly discovery may take place. However, the incentive to engage in a voluntary disclosure is weakened relative to a standard litigation model. If information transmission takes place after the submission of proposals to the arbitrator, then the results are analogous to those found in a standard litigation model. Understanding FOA is important, because it is widely used, including in telecommunications rate disputes.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123409552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}