CategoryPrint

Article III of the U.S. Constitution requires standing to sue for federal subject matter jurisdiction over a case. Under the modern test for standing, plaintiffs must show that they suffered some concrete and imminent injury-in-fact as a result of the illegal conduct of the defendant. While many scholars and judges have critiqued the U.S. Supreme Court’s development and application of the injury...

The central problem of rationality is to tame and domesticate the overwhelming complexity the human mind faces in its efforts to survive and thrive in a complex, unpredictable, and hostile universe. Much of the history of the human race is essentially the story of its expanding capacity to do just that, and the survival benefits that this process has bestowed on the species. Legal systems in...

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with...

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in...

In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to solve this problem by equalizing resources between individual plaintiffs and...

How should judges go about assessing the admissibility of evidence? In this Article, I explore a key and underexamined issue within evidence law: the interpretive tension between atomism and holism. Should judges assess the admissibility of an item of evidence atomistically—piece by piece, and by itself? Or should they engage in a more holistic, synthetic, and relational inquiry? I argue that...

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this...

This is a piece written on the retirement of Professor Stephen Yeazell, whose distinguished career is almost contemporaneous with my own time in law teaching. I started teaching Civil Procedure in the fall of 1973 fresh from a federal district court clerkship. I was attracted to the possibilities of using the civil litigation system to provide justice to those who were otherwise without much...

Over the past thirty years, the U.S. Supreme Court and the Judicial Conference have modified the Federal Rules of Civil Procedure to address concerns that litigation costs too much, takes too long, and leads to unjust results. The Supreme Court’s opinions have focused primarily on fortifying what I refer to as the gateways of civil procedure— including motions to dismiss, motions for class...

Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.”* One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious...

This is an edited version of remarks I gave January 24, 2013, at the UCLA Law Review Symposium honoring the contributions of Professor Steve Yeazell to the field of Civil Procedure.

During the last four decades the United States has witnessed first the emergence and then the disappearance of civil litigation as a topic of partisan debate in national politics. Following two centuries in which neither party thought the topic worth mentioning, in the last decades of the twentieth and the first decade of the twenty-first century, both parties made it part of their agendas...

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture.  Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law.  In recent years, the lecture has been presented by many distinguished scholars.  The UCLA Law Review has published these lectures and proudly continues that tradition by publishing an...

Once again, the U.S. Supreme Court will determine the constitutionality of affirmative action.  Once again, the focus will be on the diversity rationale for the policy.  And, once again, the discussion will likely center on whether the admissions regime of a particular school (this time, the University of Texas) can take steps to ensure that it admits a certain number—or to put the point more...