Civil Procedure

A “Procedural Nightmare”: Dueling Courts and the Application of the First-Filed Rule

Written by: Andrew J. Fuller

Abstract Pretend that Party A sues Party B in Court 1. Instead of countersuing, however, B then sues A in Court 2. The problem this Note examines is whether Court 1 may enjoin B from continuing to litigate in Court 2 if Court 2 has already declined to stay the case or transfer it to […]

Fraudulent Aggregation: The Effect of Daimler and Walden on Mass Litigation

Written by: Jeff Lingwall and Chris Wray

Abstract This Article examines the effect of the U.S. Supreme Court’s jurisdictional tightening in Daimler and Walden on mass litigation. This Article shows how the Supreme Court’s changes to general and specific jurisdiction, considered together, end the practice of tactically allocating non-diverse plaintiffs across state lines to defeat diversity jurisdiction in nationwide litigation, a doctrine […]

Byte Marks: Making Sense of New F.R.C.P. 37(e)

Written by: Charles Yablon

Abstract 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 […]

Stephen Carr, Class Actions Removability and the Changing Business of the Supreme Court: Dart Cherokee Basin Operating Co. v. Owens

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing […]

Cole Barnett & Chris Weeg, Intervention in the Tax Court and the Appellate Review of Tax Court Procedural Decisions

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals […]

Stephen Carr, Reconsidering Indirect-Purchaser Class Actions

Few issues have proven more vexing to private antitrust enforcement than those related to indirect-purchaser class actions. The current dual system of enforcement—federal and state—exacerbates the difficulty of litigating indirect-purchaser claims by layering procedural complexity on top of substantive complexity and by explicitly allowing (perhaps even incentivizing) duplicative recovery. Almost all commentators are in substantial […]