Linda Mullenix

Linda Mullenix
University of Texas at Austin | UT · School of Law

About

170
Publications
5,274
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210
Citations
Citations since 2017
4 Research Items
26 Citations
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201720182019202020212022202302468
201720182019202020212022202302468

Publications

Publications (170)
Chapter
Throughout the twentieth century, virtually all European countries that had studied the American class action had rejected implementation of the class action as a part of domestic law. In the early twenty­first century, however, several European countries reconsidered their longstanding antipathy to the American class action. The EU Parliament in 2...
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The Supreme Court's 2013 decision in Atlantic Marine v. U.S. District Court perhaps usefully resolved the issue of the appropriate procedural means for ascertaining the proper court where the parties' agreement includes a forum-selection clause. However, the Court's decision was predicated on the presupposition that the forum-selection clause was v...
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One of the most often cited precepts at class certification hearings-when courts hold such hearings-is that the rules of evidence do not apply. Since 1966, virtually every federal and state judge has fallen back on this trope to wave off objections to materials offered by counsel during class certification hearings. Class certification hearings, th...
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English Abstract: The American legal system of procedural justice is characterized by a unique set of attributes commentators have labeled “American exceptionalism.” Characteristics of American procedural exceptionalism include the notice system of pleading, fact discovery, litigation financing and attorney fees, entrepreneurial lawyering, class ac...
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Professor Redish has both anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish’s major insight is his argument that the courts and litigants have transformed the modern class action from a mere proce...
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Commentary and analysis of the Supreme Court’s February and March 2013, decisions in three major class action appeals: Amgen Inc. v. Connecticut Retirement Plan and Trust Funds (February 27, 2103); Standard Fire Ins. Co. v. Knowles (March 19, 2013), and Comcast Corp. v. Behrends (March 27, 2013). The article surveys the Court’s liberal and conserva...
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In this symposium collection of essays honoring Professor Ed Cooper in his twenty-fifth year of service as the Reporter for the Advisory Committee on Civil Rules, this short appreciation describes Professor Cooper’s pivotal role in shepherding various proposed amendments the class action Rule 23, between 1991-1997, through the federal rulemaking pr...
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This article previews the issues and arguments in American Express Corp. v. Italian Colors Restaurant, et al., on the Court’s 2012-13 docket, to be argued February 27, 2013. The respondent retail merchants entered into agreements with petitioner American Express detailing how the respondents would accept Amex’s credit and charge cards. Respondents...
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The Class Action Fairness Act of 2005 created a new provision enabling the removal of state class actions into federal courts, requiring that the class action involve damages in excess of $5 million. The Court in Standard Fire Insurance Co. v. Knowles will decide whether a state class representative may stipulate to damages less than $5 million in...
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Congress enacted the Class Action Fairness Act (CAFA) in 2005 in response to the perceived manifold misuse of class action proceedings in state court. The centerpiece of this legislation was the creation of new federal diversity jurisdiction for class action cases. In addition, CAFA also created a new removal provision that enabled defendants to re...
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Certain law reviews recently have collected essays from various academic scholars opining on the Supreme Court’s finest decisions ever, and the rationales underlying the selections. As a counterpart to this exercise, this Symposium issue challenged an array of largely non-constitutional scholars to identify the Court’s worst decisions ever, and jus...
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In Genesis HealthCare Corp. v. Symczyk, the Court will consider whether the trial court’s dismissal of Symczyk’s claim before the court certified a collective FLSA action mooted the case and prevented adjudication of the claims of others similarly situated. Symczyk brought a lawsuit under the Fair Labor Standards Act against her employers Genesis H...
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Commentary and analysis of two pending cases on the Supreme Court’s 2012-13 docket, Amgen v. Connecticut Retirement Plans and Trust Funds, and Comcast Corp. v. Behrend. Both cases present the Court with unanswered questions concerning class certification procedure and present the Court with fresh opportunities to tighten class certification require...
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The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they...
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In Comcast Corp. v. Behrend, the Supreme Court is faced with several issues: (1) whether the Supreme Court should resolve a contested issue where the parties settled their underlying dispute two weeks before the Court granted certiorari review; (2) whether during class certification proceedings and on appeal, Comcast properly preserved the issue of...
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In Comcast Corp. v. Behrend, the Supreme Court is faced with several issues: (1) whether the Supreme Court should resolve a contested issue where the parties settled their underlying dispute two weeks before the Court granted certiorari review; (2) whether during class certification proceedings and on appeal, Comcast properly preserved the issue of...
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Commentary and analysis on case law developments in the lower federal courts, approximately one year after the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (June 20, 2011). In the wake of the Court’s Wal-Mart decision, several melodramatic commentators suggested that the Court’s decision signaled a death-knel...
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Commentary and analysis of the oral arguments in Mims v. Arrow Financial Services, on the Supreme Court’s 2011-12 appellate docket. The Telephone Consumer Protection Act was enacted by Congress in 1991 to fill a gap in state consumer protection statutes relating to auto-dialing technology, unsolicited “robo-calls”, and abusive telemarketing practic...
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The twenty-first century may very well mark both the advent and triumph of fund approaches to resolving mass tort litigation. After more than forty years of attempted class action resolution of mass tort claims ― with often controversial and problematic results ― the use of no-fault alternative compensation systems styled as “funds” may emerge as t...
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In the past few years, the term “quasi-class action” has been appearing with increasing, uncritical frequency in a spate of federal court decisions. While it may be premature to characterize these sporadic references as a trend, it is perhaps soon enough to call attention to the misuse of loose labels that carry with them significant consequences....
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In 2001, in the wake of the attacks on the World Trade Center, Congress enacted legislation to create the World Trade Center Victims’ Compensation Fund. In ensuing years, this fund approach was widely heralded as a fair, expeditious means for resolving mass tort claims. However, a number of scholars subsequently have raised serious challenges with...
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In Mims v. Arrow Financial Services, the Supreme Court will decide whether consumers have a right to sue in federal court for violations of the Telephone Consumer Protection Act, or whether consumer remedies are confined solely to state courts. Did Congress, in creating a private right of action for violations of the Telephone Consumer Protection A...
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Commentary and analysis of the Supreme Court’s June 2011 decision in Wal-Mart Stores, Inc. v. Dukes, with a focus on the Court’s discussion of various evidentiary issues raised during the trial court’s conduct of class certification proceedings. The Wal-Mart litigation, embracing the largest gender-based employment discrimination brought by female...
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The Supreme Court this 2010-11 Term decided an unprecedented four cases dealing with class action issues, and in the process the Court clarified the standards for certification, commented on duplicative class litigation, and again expressed its strong distaste for class action arbitration. But collectively the cases do not represent a clean sweep f...
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This commentary analyzes the 2010-11 Supreme Court Term case, Erica P. John Fund v. Halliburton. The Erica P. John Fund sued Halliburton Co. in a securities fraud class action for losses stemming from alleged misleading statements. The Court will determine the plaintiff’s burden of proof to support class certification based on so-called “fraud-on-t...
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This article previews the issues and arguments in the Supreme Court’s blockbuster class action appeal in Wal-Mart Stores, Inc. v. Dukes. In the largest and most closely-watched employment discrimination class action in decades, the Supreme Court will determine whether millions of female Wal-Mart employees are entitled to billions of dollars of mone...
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Commentary and analysis of the Supreme Court’s consideration of Smith v. Bayer Corp. on the Court’s 2011 appellate docket. The Court will address the significant question whether litigants are free to seek class certification in a duplicative state court action, where a federal court has already considered the class certification decision under Fed...
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This article previews the issues and arguments in the 2010-11 Supreme Court Term case, Smith v. Bayer Corp. In 2001, Keith Smith and Shirley Sperlazza filed a class action lawsuit against Bayer Corporation in West Virginia state court, alleging varying claims arising out of their use of the prescription drug Baycol. In 2008, the Federal District Co...
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This article previews the issues relating to personal jurisdiction jurisprudence that the Supreme Court will address in this 2010-11 Term pair of consolidated cases: Goodyear v. Luxembourg Tires, S.A. v. Brown and J. McIntyre Machinery, Ltd. v. Nicastro. The two main issues the Court will address include: (1) May an American state court validly ass...
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This article previews the issues and arguments in the Supreme Court’s 2010-11 Term case, Astra USA, Inc. v. Country of Santa Clara, Cal. Santa Clara County brought a class action in California federal court on behalf of public health care providers and other similar entities against a number of pharmaceutical companies, alleging that these companie...
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In a significant appeal decided March 31, 2010 ― and largely ignored by the media ― a plurality of Supreme Court Justices in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. rescued federal class actions from withering demise at the hands of the states. The media is to be forgiven for its neglect, however, as Shady Grove turned on...
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This article previews the issues and arguments in the Supreme Court’s 2010-11 Term case, Ortiz v. Jordan. The primary issue before the Court is whether a United States Court of Appeals may review a trial court’s denial of summary judgment where the losing party did not seek interlocutory review of the summary judgment order, then suffers an adverse...
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Commentary and analysis of the Second Circuit’s decision in UFCW Local 1776 and Participating Employers Health and Welfare Fund v. Eli Lilly and Co. (Sept. 10, 2010), reversing class certification approved by District Judge Jack Weinstein in class litigation based on alleged injuries resulting from the pricing and sale of the pharmaceutical Zyprexa...
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Commentary and analysis of the Supreme Court’s decision in Shady Grove Orthopedic Associates P.A. v. Allstate Insurance Co. in which the Court rescued federal class actions from demise at the hands of the states. The Court decided that Federal Rule of Civil Procedure 23 takes precedence in federal diversity class actions and preempts state statutor...
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This article previews the issues and arguments in Krupski v. Costa Crociere S.p.A, before the Supreme Court in its 2009-10 Term. The Supreme Court must determine what constitutes a mistake for the purposes of invoking the “relation back” doctrine under Federal Rule of Civil Procedure 15(c), which permits a plaintiff to amend their complaint to name...
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The concept of the punitive damage class has a long and dubious lineage, extending back more than thirty years. During the 1980s and the 1990s the concept of the punitive damage class excited plaintiffs' attorneys, inspired countless academics, riveted at least a few defense counsel, and caught the attention of a scattering of federal judges. Nonet...
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In the swamp of summary judgment literature, academics, commentators, treatise-writers, empiricists, and practitioners pay scant attention to the role of summary judgment in class action litigation, prior to class certification. This lacuna is perhaps justified by the corresponding scant attention paid by courts in reported decisions, at least to s...
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American law reform projects eschew reliance on civil law concepts and continue to embrace American procedural exceptionalism. However, in an interesting conundrum, American resolution of complex class settlements often mimic civil law systems, while some civil law systems continue to resist American-style class actions. However, some civil law sys...
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Commentary and analysis of the underlying litigation in Shady Grove Orthopedic Associates P.A. v. Allstate Insurance Co., on appeal to the United States Supreme court from a decision of the Second Circuit Court of Appeals, which dismissed the class action from federal court. This piece also canvasses the arguments presented by the plaintiff/petitio...
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This article previews the issues and arguments in Hertz Corp. v. Friend, on the Supreme Court’s 2009-10 docket. The issue the Court will address is whether, in the interests of simple and efficient judicial administration, federal courts should apply a nationwide corporate “headquarters” test to determine a corporation’s principal place of business...
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This article previews the issues and arguments in Shady Grove Orthopedics Associates v. Allstate Ins. Co., a case before the Supreme Court on its 2009-10 Term docket. In this case, the Court will address the issue whether federal courts in diversity class actions must apply state provisions that limit or prohibit certain categories of class actions...
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Commentary and analysis of a decision from the Eleventh Circuit Court of Appeals reversing the denial of a class certification by the lower federal district court in a RICO-based class action. Most appellate decisions relating to district court orders granting class certification result in reversals, effectively ending the class litigation. It is a...
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Commentary and analysis of two Second and Third Circuit decisions relating to the viability of so-called “class action waivers” included in consumer arbitration clauses. California state and federal courts already have indicated their hostility towards such clauses, applying doctrines of arbitrability and contract unconscionability to override enfo...
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Commentary and analysis on the Third Circuit’s decision in In re Hydrogen Peroxide Antitrust Litig., 2008 WL 5411562 (3d Cir. Dec. 30, 2008). In what may be the most influential decision relating to class certification since the U.S. Supreme Court decided Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), the Third Circuit Court of Appeals issued...
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The English version of this paper can be found at http://ssrn.com/abstract= 2211650Class action litigation in the United States is fairly characterized by two signal procedural events that largely determine the outcome of the litigation. The first crucial event centers on a court’s decision to certify or not certify a class under the relevant class...
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This article previews the issues and arguments in Phillip Morris USA v. Williams, on the Supreme Court docket for the 2008-09 Term. After nine years of litigation and three trips to the United States Supreme Court, the Court is now asked to determine whether the Oregon state court acted properly on remand from the Court’s 2007 decision concerning c...
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This General Report, as part of the Proceedings of the XIII World Congress of Procedural Law on the topic of new trends in procedural law, gathers the national reports of common law countries relating to new trends in standing and res judicata in collective actions. The national reports include description and analyses from Australia (authored by D...
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Commentary and analysis of various emerging problems in federal court interpretation and application of the Class Action Fairness Act of 2005 (CAFA). Among the problems discussed are: (1) the authority of an MDL judge – after transfer of litigation to the MDL forum -- to reconsider the transferor’s judge’s determination of the propriety of a CAFA r...
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This paper looks at the practice of forum shopping in the United States and focuses on the new Class Action Fairness Act which was passed in 2005 and is one of the most sweeping legislative initiatives relating to class action litigation. The Geneva Papers (2006) 31, 357–375. doi:10.1057/palgrave.gpp.2510081
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This paper looks at the practice of forum shopping in the United States and focuses on the new Class Action Fairness Act which was passed in 2005 and is one of the most sweeping legislative initiatives relating to class action litigation.Professor Harald Koch, in his paper entitled ‘‘International Forum Shopping and Transational Lawsuits’’ has accu...
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This article previews the issues and arguments in Martin v. Franklin Capital Corp., before the Supreme Court in the 2005-06 Term. In Martin, the Supreme Court is asked to determine the appropriate legal standard to award attorney fees when a federal court remands a case to state court. This case provides the Court with an opportunity to clarify the...
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This article previews the issues and arguments in two cases ― Exxon Corp. v. Allapattah Services, Inc. and Ortega v. Starkist Foods, Inc. ― on consolidated appeal to the Supreme Court during the 2004-05 Term. The consolidated Allapattah and Ortega appeals raise the question whether federal courts may assert supplemental jurisdiction over the claims...
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This article previews the issues and arguments in Exxon Mobil Corp. v. Saudi Basic Industries Corp. on appeal to the Supreme Court during the 2004-05 Term. The primary issue asks the Court to determine whether the Rooker-Feldman doctrine applies to divest a federal court of jurisdiction where a pending state court litigation presents identical clai...
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Professor Mullenix begins her paper by discussing the relative obscurity of rulemaking scholarship in general, what she calls an “untended garden of the legal landscape,” and in particular, the lack of study of state court rulemaking. Her paper surveys state rulemaking models, and she finds that the state rulemaking landscape is incredibly varied,...
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Because the collateral attack problem is so vital to the sanctity of settlement classes, the locus of the debate over the future of settlement classes is centrally located in the issue of adequacy. Today, it seems beyond cavil that the federal class action rule authorizes settlement classes, even without a specific provision for settlement classes...
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This article previews the issues and arguments in Grupo Dataflux v. Atlas Global, on appeal to the Supreme Court during the 2003-04 Term. The Grupo Dataflux appeal raises the question whether federal courts must adhere to the historical rule that the diversity citizenship is determined at the time of filing of the case, or whether courts may recogn...
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Any understanding of the American judicial system’s views about mass tort litigation must appreciate that the judicial system’s attitudes have changed over time. The receptivity of American courts to innovative procedures, as well as the expansion of evidentiary and substantive tort law, has varied over the past twenty five years. In addition, any...
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This article previews the issues and arguments in Green Tree Financial Corp. v. Bazzle, on appeal to the Supreme Court during the 2002-03 Term. The Green Tree Financial appeal raises the cutting-edge problem whether class action procedure may used in a state arbitration applying state law, when the underlying arbitration agreement made no provision...
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This article previews the issues and arguments in In re Agent Orange Products Liability Litigation, Dow Corning v. Stephenson, on appeal to the Supreme Court in its 2002-03 docket. In this appeal, the Supreme Court is confronted with the important question whether absent class members in the 1985 Agent Orange class settlement, many years later, may...
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With the recent approval of the proposed amendments to Federal Rule of Civil Procedure 23, the Advisory Committee on Civil Rules and the Judicial Conference of the United States have taken a major step towards substantially revising the class action rule. Although the rule amendments at first seem like a sweeping overhaul, in reality the revisions...
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This article previews the issues and arguments in Syngenta Crop Protection, Inc. v. Henson, an appeal before the Supreme Court in its 2002-03 Term. The Syngenta Crop Protection appeal presents the Supreme Court with a deceptively simple but extremely important issue relating to the federal courts' ability to protect federal nationwide class action...
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This article previews the issues and arguments in Ford Motor Company and Citibank (South Dakota) v. McCauley, an appeal before the Supreme Court in the 2002-03 Term. Ford Motor Co. v. McCauley raises a straight-forward clash regarding one of the most fundamental requirements for establishing federal diversity jurisdiction: namely, how to calculate...
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This article previews the issues and arguments in Devlin v. Scardelletti, an appeal before the Supreme Court in its 2001-02 Term. In Devlin, the Supreme Court will resolve a very important question relating to the ability of disappointed objectors to pursue appellate challenges to class action settlements. Many federal circuit courts, including the...
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The legal landscape surrounding the World Trade Center events merits attention because through the Victim Compensation Fund the United States government quickly offered victims an alternative means for remediation. This approach, rather than through the tort litigation system, is known as a fund approach.The terrorist attacks on September 11, 2001...
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My colleagues suggest that various Federal Rules of Civil Procedure are problematic, troublesome, and in need of remediation. As fine scholars and rulemakers, all have insightful suggestions concerning how to fix these rules. Most likely many federal practitioners will agree with them, although perhaps with differing approaches to rule revision. No...
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Prior public interest law paradigms, especially as described by Professor Abraham Chayes, fail as models for the complex litigation that the American judicial system has experienced in the last twenty years: first, because modern complex litigation (particularly mass tort litigation), is being resolved in ways that resemble private legislation nego...
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The futures problem is very much with us. The judicial system deals fairly well, if imperfectly, in resolving mass accident cases of the airplane crash/train-wreck variety. Latent-injury mass torts, however, are more difficult to resolve because defendants and their insurers are unwilling to negotiate any deal that does not include future claims. R...
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Since 1995, federal courts have articulated an increasingly conservative class action jurisprudence that has directed federal courts to stringently scrutinize proposed litigation and settlement classes. Consequently, it has become increasingly difficult for plaintiffs to pursue certain types of class actions in the federal arena. In turn, many clas...
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At the end of the twentieth century, the United States Supreme Court decided two landmark cases dealing with the American class action rule, Federal Rule of Civil Procedure 23. These decisions, Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., are of tremendous significance for American class action jurisprudence because the Supreme C...
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In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. More than twenty years later, at the end of the twentieth century, Professor Chayes's public law parad...
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A rollicking, satirical inside account of a highly dysfunctional law school faculty dominated by pompous, self-important bloviating Alpha males, Queen Bee divas, clueless administrators, and back-stabbing colleagues, all struggling to assert dominance over status, financial gain, and trivial issues of faculty governance. Set in a not-so-fictional H...
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This article previews the issues and arguments in Ortiz v. Fibreboard, Corp., on appeal to the Supreme Court on its 1998-99 docket. The Ortiz appeal raises a number of issues, which the Court may or may not decide, including (1) whether the Ahearn settlement class satisfies the prerequisites of Rule 23(a); (2) whether the Ahearn settlement class co...
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This article previews the issues and arguments in California Public Employees’ Retirement Fund v. Felzen, on the Court’s 1998-99 docket. In the second case on the Court's docket this term dealing with class action settlements (see also Ortiz v. Fibreboard Corp.), the Supreme Court will turn its attention to the interesting and technical question wh...
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This article previews the issues and arguments in Wisconsin Dept. of Corrections v. Schacht, on the Supreme Court’s 1197-98 appellate docket. The primary issue on appeal asks whether a federal district court has removal jurisdiction over a lawsuit involving claims against a state and state officers subject to the Eleventh Amendment's immunity defen...
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As the Advisory Committee on Civil Rules (“Advisory Committee” or “Committee”) once again contemplates revision to the federal civil discovery rules, it is encouraging that the Advisory Committee this time around has commissioned empirical research in advance of possible rulemaking. With that research in hand, three findings are striking in these R...
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The debate over mass tort litigation has become especially shrill in recent years, as members of the academic community have attacked alleged ethical improprieties, judicial overreaching, and worse. The authors of these Essays, however, present an altogether different and even optimistic view of mass tort litigation at the end of the twentieth cent...
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The Shutts case combines many elements dear to academicians. Importantly, Shutts involved constitutional issues of due process so complex that these issues fully consumed the Supreme Court's opinion. The Shutts decision ultimately became important not so much for what it said, but rather for what it did not say. Hence, Shutts involved a Famous Foot...
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This article previews the issues and arguments in Rivet v. Regions Bank of Louisiana, on the Supreme Court’s 1997-98 appellate docket. The Court will address the question whether a federal district court has removal jurisdiction over a state court case involving mortgage rights in real property based on the removing defendants' assertion that the p...
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This article previews the issues and arguments in Amchem Prods. Inc. v. Windsor, an appeal on the Supreme Court’s 1996-97 docket. The primary issue that the Court will address is whether a federal district court in certifying a proposed settlement class apply the same standards it would apply in certifying a proposed litigation class, or can the co...
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The proposed amendments to Federal Rule 23 currently are working their way through the rulemaking process, with the public notice and comment period ending February 15, 1997. The proposed amendments reflect the considered efforts of the Advisory Committee on Civil Rules, over the past four years, to amend and improve the existing federal class acti...
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This article previews the issues and arguments in Adams v. Robertson, an appeal on the Supreme Court’s 1996-97 docket. The chief issue the Court will address is whether the Due Process Clause is violated by settlement of a mandatory, non-opt- out, nationwide class action lawsuit that also extinguishes the damages claims of some class members? State...
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This article previews the issues and arguments in Caterpillar, Inc. v. Lewis, on the Supreme Court appellate docket for the 1996-97 Term. This fall the Supreme Court begins its 1996 Term with a warm-up exercise on a highly technical issue relating to removal procedure. Specifically, this case concerns the issue of exactly when federal jurisdiction...
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This article previews the issues and arguments in Quackenbush v. Allstate Insurance Co., on the Supreme Court’s 1995-96 docket. The Court will address two primary issues: (1) Is a federal district court's remand order based on abstention grounds immediately appealable under the Cohen collateral order doctrine?, and (2) May a federal district court...
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This article previews the issues and arguments in Matsushita Electric Industrial Co., Ltd. v. Epstein, on the Supreme Court’s 995-96 appellate docket. The primary issue before the Court focuses on whether a federal court refuse to give effect to a state-court approved class action settlement that releases exclusively federal claims?More than 90 per...
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This article previews the issues and arguments in BMW v. Gore, on the Supreme Court’s 1995-96 appellate docket. The Court will focus on two primary issues: (1) May a state jury constitutionally award punitive damages against a wrongdoer for the wrongdoer's instate as well as out-of-state conduct? If this basis for a punitive damage award violates t...
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For almost two decades Judge Jack B. Weinstein, senior federal judge in the Eastern District of New York, has presided over many of the landmark mass tort cases involving Agent Orange, DES, asbestos litigation, repetitive stress injury, and other environmental toxic torts. Not only has Judge Weinstein written numerous landmark decisions in these ca...
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This article previews the issues and arguments in Wilton v. Seven Falls Co., on the Supreme Court’s 1994-95 appellate docket. This case asks the Supreme Court to delineate the appropriate standards under which a federal court may decline to exercise jurisdiction in a declaratory judgment action. This is the second time in two years that the Court h...
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One of the most overlooked but nonetheless enduring legacies of fifty years of International Shoe jurisprudence has been the almost obsessive judicial concern with defendants' due process. Certainly this is not surprising ― Justice Stone's opinion focuses exclusively on the due process requirements for subjecting a nonresident corporate defendant t...
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Congress undermines and erodes judicial power when it imperially declares and exercises an exclusive right to enact federal procedural rules. Thus, congressional intrusion into federal procedural rulemaking is the most significant contemporary issue of judicial independence. The proper province of procedural rulemaking is no mere pointillist academ...
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There are and always have been four basic methods that law reformers could use to design a set of choice-of-law rules for mass-tort cases. The first is simply to enact federal substantive tort or products liability legislation that would incorporate not only substantive legal standards, but also jurisdictional provisions, limitations requirements,...
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The purpose of this article is to examine the threshold issues relating to applicable ethical standards in multiforum federal practice. Any forecast of ethical issues into the twenty-first century must be made against the backdrop of changing professional practice. If closing decades of this century have demonstrated any significant development in...
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In this symposium issue, a group of federal courts and conflicts scholars were presented with a hypothetical set of facts, and asked to sit as the Eleventh Circuit Court of Appeals on review from the lower district court’s decision. The case involves interpretation, application, and enforceability of a forum selection clause in federal court, under...
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A striking feature of the passage of the Civil Justice Reform Act of 1990 was the consensus that some kind of reform of civil litigation was needed. Professor Linda S. Mullenix contends that this belief rested not, as one might think, on reliable empirical research, but rather on the myth that Americans overlitigate, especially by abusing discovery...
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It is spring, and as the early crocuses annually blossom forth, so yet another collateral order doctrine case flowers on the Supreme Court's docket. In one of the longest-running riffs on doctrinal law, the Supreme Court in Digital Equipment is hearing its eighth case in seven years involving the collateral order doctrine of interlocutory appeal. A...
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Judge Weinstein sweepingly states that “[m]ass tort cases are akin to public litigation, involving restructuring of institutions by the courts to protect constitutional rights.” Well, close, but no cigar. While he does qualify his statement with “akin,” Judge Weinstein means to wring more out of this “akin” than this metaphor reasonably can support...
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The American Law Institute's Complex Litigation Project, approved at the May 1993 Annual Meeting, represents nothing so much as several fine movements of an otherwise unfinished symphony. Although the membership endorsed this final draft, it prematurely laid the Project to rest. Had the eminent composers been permitted to continue, Congress and the...
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There can be little doubt that the most controversial amendment among the 1993 civil rule revisions is the new Rule 26(a) provision requiring early mandatory disclosure of discovery information. As the draft rule worked its way through the Advisory Committee on Civil Rules, large segments of the practicing bar assiduously opposed the new disclosure...

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