September 12, 2008
OK, Discovery’s a Problem, But What Can Be Done About It?
Martha Neil has written a piece titled OK, Discovery’s a Problem, But What Can Be Done About It? on abajournal.com. The piece looks at the problems facing the discovery process and explores various possible solutions.--Counseller
September 11, 2008
'U Can't Touch This' Litigation Hold
Check out 'U Can't Touch This' Litigation Hold by Stanley P. Jaskiewicz over at LAW.com. The piece explores the IT litigation hold and how the Federal Rules of Civil Procedure deal with the problem of litigation holds and ever expanding electronic data.--Counseller
September 10, 2008
"A Unified Theory of 28 U.S.C. s1331 Jurisdiction"
Click here to download A Unified Theory of 28 U.S.C. s1331 Jurisdiction, which Michigan State Law Prof Lou Mulligan recently posted on SSRN. The abstract follows:
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 jurisdiction is best understood as a function of the federal right and cause of action plaintiff asserts. Under my view, these two concepts, when weighed against each other, offer strong evidence of congressional intent to vest the federal courts with jurisdiction and form the foundational elements for the federal question jurisdictional analysis. This principle underlies three standards which offer both a better explanation of the Court's past section 1331 cases and better guides for future decisions than the Holmes test. Under the first standard, section 1331 jurisdiction lies when a plaintiff makes an assertion of a non-judicially created federal cause of action and a mere colorable assertion to a federal right. Under the second standard, section 1331 lies when a plaintiff alleges a state-law cause of action and asserts a more weighty substantial federal right. Finally, under the third standard, section 1331 jurisdiction lies when plaintiff asserts a cause of action created as a matter of federal common law and plaintiff asserts a substantial federal common law right coupled with a sufficient showing to support the right
September 8, 2008
Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act?
Jarrod Wong posted Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act? on SSRN, which looks at the Federal Arbitration Act and examines whether courts or arbitrators determine the impact of the res judicata doctrine.--Counseller