In debates over civil litigation, class actions have long garnered considerable attention. Controversy continues to rage over efforts to certify class actions in the face of objections from defendants. Debate also swirls over their use as a vehicle for settlement, with the defendant’s consent. All of this ferment suggests that… Read More »
Litigants, attorneys, judges, and jurors are thought to be the main players in the civil litigation system. However, expert witnesses are also required in the vast majority of civil trials. The expert witnesses are the ones who, for instance, tell the factfinder whether a mistake has been made in medical… Read More »
In 2007, the Court handed down its opinion in Bell Atlantic v. Twombly. The case set the civil procedure world abuzz; in addition to “retir[ing]” Conley v. Gibson’s famous “no set of facts” standard, Twombly introduced the concept of “plausibility” as the dividing line between complaints that do and do… Read More »
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »
In Ledbetter v. Goodyear Tire & Rubber Co. a new act of discrimination occurred and a new limitations period arose each time an employer issued a paycheck to an employee that reflected… Read More »
Over the past forty years, damage class actions have come to play an increasingly significant regulatory role in the consumer context. Recent legal developments, however, have greatly diminished the damage class’s practical utility: While damage class actions remain viable on the books, in practice unfavorable federal precedent and nearly exclusive… Read More »
In Allianz SpA v. West Tankers Inc., the European Court of Justice (ECJ) deemed antisuit injunctions, a tool that English courts commonly employ to enforce arbitration agreements, incompatible with EU law. As a result, English courts can no longer issue an antisuit injunction preventing a party—who is either ignoring or contesting… Read More »
This Article is about consistency in adjudication. I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.
This Article is also about the United States asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It… Read More »
How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question, most recently in a decision holding that the six-year statute of limitations in the Tucker Act is a quasi-jurisdictional bar to suit.
The Court is right to… Read More »
Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralizing cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for… Read More »