THERE MUST BE A BETTER WAY Baylson1, Michael M; Gensler, Steven S
Judicature,
01/2023, Letnik:
107, Številka:
2
Journal Article
Recenzirano
...when a party seeks discovery through a foreign country's process, what role does the federal judge play, to what extent are the federal rules discovery mechanisms involved, and do any of the ...duties and certifications associated with the discovery rules apply? ...the party seeking the information is likely to want the U.S. court to "go it alone" and compel production through U.S. discovery rules. In its landmark 1987 Aerospatiale decision, the U.S. Supreme Court answered what is arguably the thorniest "pathway" question by finding that the HEC is neither mandatory nor exclusive.8 The issue in Aerospatiale was whether cross-border discovery must go through the HEC process when the information being sought is located in a country that is also a party to the HEC. The fact that the U.S. court has authorized the discovery - and may be willing to compel compliance - doesn't stop the foreign country from regulating in-country activities or from penalizing actors who violate local law. Rule 45(b)(3), "Service in a Foreign Country," is just a cross-reference to the statute authorizing federal courts to issue and serve subpoenas on U.S. citizens residing in a foreign country.10 Think about what isn't addressed in the current civil rules.
The expectation that selection practices contribute to organizational performance has been long assumed; however, research on personnel selection has neglected to consider why firms differ in their ...use of selection practices and whether selection practices relate to organizational performance under different competitive environments. Based on strategic human resource management research, we introduce contingency theory to examine whether external (industry characteristics) and internal (prior firm performance and collective turnover) environments affect the use of selection practices, how the adoption of selection practices relates to subsequent firm performance, and whether the external (industry) and internal (selection stages and collective turnover) environments moderate the selection–performance relationship. Using a sample of 413 firms, we found that firms use more selection practices when there is less collective turnover and when firms are within low-growth and stable industries. The results also show that firms employing more selection practices generated greater productivity but not profit. Positive effects occur when firms have less collective turnover and are within dynamic industries but, surprisingly, the effects of selection on performance can actually be negative in stable industries. These findings provide new insights about the strategic value of personnel selection; one that is sensitive to and contingent upon competitive environments.
As recent case law has become more restrictive towards the extraterritorial applicability of American law, the peculiar statutory mechanism under 28 U.S.C. 1782 has taken on greater importance as a ...means to bring foreign actions without losing access to United States (U.S.) discovery. In essence, Section 1782 exports U.S. discovery to foreign jurisdictions as if the disclosure mechanism is available independently of other legal infrastructure. As a result, this statute creates a hybrid legal system where U.S. discovery can be combined with the laws of other countries. By combining Section 1782 discovery with favorable elements of foreign law, international litigants may achieve outcomes that would otherwise be unavailable in non-U.S. forums. However, Section 1782 often conflicts with policy considerations behind the laws of other countries. Such mismatches need to be resolved primarily by foreign tribunals due to American courts' reluctance to examine non-U.S. law. If left unchecked, these mismatches may encourage the filing of entrepreneurial lawsuits by those who wish to take advantage of differences between the laws of the United States and other jurisdictions. On the other hand, the exporting of U.S. discovery could also correct the imbalance of laws in foreign countries, thereby inspiring legal changes across national boundaries.
This article addresses the stakes of the ongoing fight over competing versions of US history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has ...examined US law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely devoid of these histories and without a strong conception of the formative role of race. As a result, recent movements to reintegrate these topics into the field generally reflect a broader trend in the legal academy of treating race as an elective rather than fundamental topic. This article shows that these histories contain insights that are crucial for understanding their legacies in our present legal system. It offers an account of how current conceptions of the field of property law evolved and what we learn from suppressed histories. It shows that the histories of conquest and slavery explain aspects of the system - its construction of jurisdictions, property value, ground-level institutions, and organization of force, for example - that belong at the core of the curriculum and the field.
First, this article examines patterns of erasure in the property-law canon to explore how we came to understand property law as primarily a collection of doctrines derived from English law regulating relations between neighbors. It uses property-law casebooks as an index and offers the first comprehensive study of the tradition. This analysis shows that many of the norms of erasure and validations of racial hierarchy that casebooks exhibit were set during the period of their emergence - the time of the formal close of the frontier and the Jim Crow Era. It was not until the 1970s that casebooks began to critically examine the histories of conquest and slavery for the first time, but the query into their consequences for the property system has remained partial and inconsistent. I then examine three ubiquitously taught topics in property law - discovery, labor, and possession - in light of the contexts in which they arose, to highlight their role in the creation of new markets for land and people in early America. I show that Chief Justice Marshall's iteration of the Discovery Doctrine drew from an international legal tradition that authorized European conquests and the transatlantic slave trade to establish racial hierarchy as the basis of US jurisdiction and trade in lands. In addition to affirming that hierarchy, as scholars have shown, the labor theory also captured the ways that colonists attributed property values to land and people only when they came into white possession. I further argue that the labor of property creation in the colonies in significant part comprised legal work, beyond agriculture labor, including the passage of laws creating homesteading incentives, making enslavement racial, permanent, and hereditary, and establishing systems such as the rectangular survey, comprehensive title registry, and easy mortgage foreclosure. Finally, taking possession of property in this context entailed a process of dispossession turning the principle of honoring possession on its head. Looking at possession as part of the Discovery Rule and fugitive-slave laws reveals that the state largely delegated enforcement of possession - and the concomitant racial violence of dispossession - to private actors in ways that simultaneously invested them in property interests and racial hierarchy. This article opens a new inquiry into what these long-buried histories teach us about property law. It argues that they are indispensable for understanding the unique fruits of the colonial experiment that define American property law today - the singular land system that underpins its real estate market and its structural reliance on racial violence to produce value.
Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made ...to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings. In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the merits. Notably, similar problems plagued the civil justice system back in the early twentieth century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern Federal Rules have substantially simplified pleading requirements and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits. This Article argues that the process that spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The Article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental reexamination of immigration rules with an eye toward promoting decisions based on substance rather than procedure, as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that best promote access to justice for noncitizens.
RECENT DEVELOPMENTS IN FIDELITY AND SURETY LAW Harris, David A; Wynn, Jessica L; Horne, Jane A ...
Tort trial & insurance practice law journal,
03/2023, Letnik:
58, Številka:
2
Journal Article
The contractor defaulted the manufacturer, corrected the work, and filed a claim against the performance bond without terminating the manufacturer.10 The surety denied the claim because the ...contractor failed to terminate, then filed suit seeking declaratory judgment, and moved for summary judgment.11 In response, the contractor argued that the bond's condition precedent did not apply to the defective work or obligation to furnish a manufacturer warranty, and that the contractor was otherwise prevented from terminating the manufacturer because the modular structure had been delivered and installed.12 The First Circuit rejected the contractor's arguments, emphasizing that the warranty claim arose from the failure to procure a warranty before completion of the subcontract (and not a demand for remediation under a warranty).13 The court explained that the performance bond's terms did not exclude this warranty obligation from the conditions precedent and that the surety's performance options were "no less suitable for the warranty obligation than for the physical work of fixing the underlying work. The contractor immediately notified the surety of the termination, but claimed that it was forced to continue work on the project while the surety performed its investigation.20 The contractor sued the principal and surety for breach of the performance bond, contending that the surety had not paid the contractor's claim.21 The court granted the surety's motion for summary judgment and denied the contractor's motion for summary judgment on the breach of the performance bond count.22 In so granting, the court reasoned that it was undisputed that the contractor began self-performing upon notifying the surety of its bond claim, which foreclosed upon the surety's bargained-for right to have a reasonable period of time within which to select a remedial option.23 4. Proper Claimants In Hanis County Water Control it Improvement District No. 89 v. Philadelphia Indemnity Insurance CoŅ the Fifth Circuit considered whether a prime contractor could assert claims against a subcontractor's performance bond when the bonded subcontract had been changed without notice to the subcontractor's surety.25 The surety asserted that the undisclosed changes represented a new independent contract that happened to embrace the same subject matter as the bonded subcontract.26 The court rejected the surety's argument, holding that the objective intent of the undisclosed changes was to amend and not replace the underlying subcontract.27 The court explained that changed terms were described as a revised version of the bonded subcontract and contained the same section number, the same title, and the same subject matter as the bonded subcontract.28 5. The district court granted the surety's motion for summary judgment under the statute of limitations.30 The Eighth Circuit affirmed, holding that the public corporation could not invoke the doctrine of nullum tempus "time does not run against the king" because its claims arose from private-law theories that constituted proprietary rights, not the rights of the public.31 The court emphasized that the public corporation did not sue to enforce statutes or regulations, and a victory would not allow it to exercise any sovereign right.32 In Transit Wireless, LLC v. Fiber-Span, Inc.,11 although the prime contractor raised technical concerns about nodes installed on a project, which were partially addressed through retrofitting, the contractor used the nodes for nearly three years.34 The contractor later demanded that the subcontractor replace the retrofitted nodes and, upon refusal, sued the subcontractor and its performance bond surety.35 The subcontractor petitioned for bankruptcy.36 The bankruptcy court dismissed the contractor's claim against the surety, reasoning that the claim was untimely under the contractual two-year statute-of-limitations period because suit was filed more than two years after the contractor accepted the nodes though use.37 The district court reversed the bankruptcy court's decision, emphasizing that use of nonconforming goods is not acceptance in every case and that the contractor's use was reasonable under the circumstances.38 On appeal, the Third Circuit vacated the district court's opinion in part and concluded that the contractor's claim was untimely.3Q The contractual statute-of-limitations was dependent on delivery and not acceptance.40 The term "delivery" had been interpreted under the UCC to constitute tender of goods, regardless of their conformity.41 The court adopted this definition, noting that it was consistent with a commonsense understanding and was not dependent on some uncertain moment when the prime contractor might actually choose to accept the good.42 In Shallow Water Equipment, LLC v. Pontchartrain Partners, l.LCT the subcontractor argued that the discovery rule deferring the accrual of a cause of action until a plaintiff knew or should have known of the facts giving rise to a cause of action applied to Miller Act claims, rendering the subcontractor's claims timely.44 The court determined that the subcontractor's claim against the performance bond filed three months after the Miller Act limitations period had expired was untimely.45 Even if the discovery rule applied, the subcontractor's claim was still untimely because the subcontractor failed to exercise reasonable diligence in inspecting the vessel post-completion, where it would have discovered the damage to the vessel a year before the subcontractor filed its claim for said damage.46 In Southway Builders, Inc. v. United States Surety Co.,47 a prime contractor defaulted a subcontractor for untimely performance and asserted a claim against the subcontractor's performance bond.48 The contractor subsequently entered into a memorandum of understanding with the subcontractor's sureties to ensure that work continued while the sureties investigated the claim.49 The memorandum of understanding amended the bond's choice-of-law provision from Maryland to Virginia law.50 When the contractor failed to file a lawsuit within the bond's contractual oneyear limitations period, the sureties denied the prime contractor's claim, filed suit seeking declaratory judgment, and moved for summary judgment under the limitations period.51 The contractor argued that the contractual limitations period was void ab initio under Maryland law when the performance bond was signed, and, therefore, the memorandum of understanding's choice-of-law provision could not resurrect the void limitations period under more lenient Virginia law.52 The trial court granted the sureties' motion, holding that the limitations period was subject to and enforceable under Virginia law.55 On appeal, the Supreme Court of Virginia affirmed on different grounds, explaining that the bond's alternative saving provision provided for the minimum period of limitations under Virginia law.54 Surety contracts are construed as insurance contracts under Virginia law, and, therefore, the bond was subject to the one-year minimum limitations period required for insurance contracts and not the default five-year limitation period for causes arising in contract.55 6.
Propolis is one of the complex, but valuable, bio-sources for discovering therapeutic compounds. Diterpenes are organic compounds composed of four isoprene units and are known for their biological ...and pharmacological characteristics, such as antibacterial, anticancer, and anti-inflammatory activities. Recently, advancements have been made in the development of antibacterial and anticancer leads from propolis-isolated diterpenes, and scrutiny of these compounds is being pursued. Thus, this review covers the progress in this arena, with a focus on the chemistry and biological activities of propolis diterpenes. It is anticipated that important information, in a comprehensive and concise manner, will be delivered here for better understanding of natural product drug discovery research.
Proposed amendments to Rule 702 aim to clarify the preponderance standard of admissibility of expert testimony, eliminate any ambiguity regarding the court's role as the gatekeeper of the ...admissibility of expert testimony, and ensure that only testimony that meets the applicable reliability standards is presented to the jury. The Judicial Conference Committee on Rules of Practice and Procedure approved amendments to Rule 702 of the Federal Rules of Evidence on June 7, 2022.1 The amendments were recommended by the Advisory Committee on Evidence Rules after a period of public comment that was met with great participation by both the plaintiffs' and defense bar.2 Once approved by the Judicial Conference, the United States Supreme Court, and Congress, the amendments will go into effect on December 1, 2023. The new language is consistent with General Electric Co. v. Joiner, where the court determined that a trial court must consider both the expert's methodology and their conclusion because the methodology must be not only reliable but also reliably applied.8 Proponents of the Rule 702 amendments argue that they will enhance the quality of expert testimony presented in court by emphasizing the importance of relevance, reliability, and methodology in expert testimony to ensure that expert conclusions are based on sound scientific or technical principles. Z Proposed amendments to Federal Rule of Evidence 702 aim to clarify the preponderance standard of admissibility of expert testimony.
AG Asks Judge To Block FOI Request Friedman, Mark
Arkansas Business,
10/2023, Letnik:
40, Številka:
44
Journal Article, Trade Publication Article
U.S. District Court Judge Billy Roy Wilson sided with the plaintiffs, mostly hemp-related companies, and issued a preliminary injunction in September, barring Arkansas from enforcing the legislation. ......two sitting federal judges in Arkansas have made clear that when cases, like this one, involve primarily federal claims, the federal law of privilege applies, not the state law. If the attorney general's request is granted, Mehdizadegan said in the filing, it "would deprive every Arkansan of an opportunity to have an Arkansas court - one bound by Arkansas law - to resolve a FOIA contest."
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