Civil Rules Research Articles

INTEGRASI TASAWUF DALAM HUKUM KELUARGA ISLAM

Abstrac
 Knowledge is very important in a family, it is one of requirements to create a sakinah-mawadah-warohmah family. More than that, a religious understanding is expected to be guidance and standard in household lifestyles. Sufism is a complement from a religious perspective, with the synergy of sharia knowledge (Islamic law) and aqidah as an absolute unity. Study uses qualitative research methods with descriptive analytical research style. The study uses literature based on, journals, books, articles to support the research, which will be a moral support of Islamic family law nowadays. Then conducted investigations and studies that are relevant to the research, intend to revive the understanding about the importance of Sufism in an islamic household, which there are also national civil rules in it. The library approach is as analytical tool to dissect the integration between Sufism and islamic household lifestyles in a holistic and comprehensive way to create understanding and thoughts about the importance of Sufism in a family, that always relevant and becomes a guide to live a family life. The results show that the knowledge of Sufism can be a guidance, how to build an ideal household according to religion and as a way to receive God's pleasure. The implementation of this understanding is not easy to be applied considering the basic needs that must be fulfilled in a family, for example about economics, social and temporary interests. Therefore, it is necessary to get used to do good things according to Qur'an and Hadith as a filter and balancer in life.

Squamous cell carcinoma of the scrotum in HIV: two case reports

BackgroundSquamous cell carcinoma (SCC) of the scrotum was the first malignancy known to be associated with exposure to an occupational carcinogen—in this case, soot trapped in the breeches of chimney sweeps. Better civil rules and regulations and the replacement of hearths with other forms of heating have rendered SCC of the scrotum a rarity. We report two cases of scrotal SCC with vastly differing clinical presentations and management.Case presentationCase 1 had T1 N0 M0 disease and presented with a small (< 2 cm), innocuous-looking, non-healing ulcer of eight years duration. A punch biopsy revealed a superficially invasive SCC confirmed on immunohistochemical profiling. A wide local excision of the lesion was subsequently performed. Follow-up at three years showed no signs of recurrence. Case 2 presented with T4 N1 M1 disease and rapidly progressing locally destructive mass. A punch biopsy of the scrotal lesion confirmed invasive moderately differentiated focally keratinising SCC. The metastatic evaluation confirmed the presence of metastatic, extensive para-aortic lymphadenopathy. He was managed with cisplatin-based chemoradiotherapy.ConclusionEarly detection and management of patients with SCC of the scrotum are essential. If the diagnosis is delayed, treatment options become limited, and the prognosis is poor. Notwithstanding the rarity of this disease, multicentre trials are needed to provide more precise guidelines as to the optimal management of these patients.

A Brief Assessment of the Main Commercial Contracts under the New Romanian Civil Code

Summary From 2011 Romania has a new Civil Code. Although the government’s initiative was to unify the private law according to the model of the Italian Civil Code of 1942 by repealing the Commercial Code of 1887, the new Civil Code only succeeded in putting together civil rules and commercial rules, the latter being relocated from the former Commercial Code. Obviously, an exhaustive analysis of the new Civil Code is impossible in the frame of a short article. That’s why the author of this study tries to evaluate the new Civil Code regulation by focusing on the main commercial contracts. Some general civil rules that are traditionally applied for centuries in most of the European continental legal systems (e.g. ownership concept, warranty for defects, the buyer’s duty to pay the price etc) will be premeditatedly neglected or just shortly approached. The commercial contracts are very important in the field of the international commercial relations – even between the borders of the European Union –, when in many cases the parties agree that the national law will govern the contract. The goal of the study is to offer a brief commentary on the new institutions together with a comparative presentation of the general regulation of the main commercial agreements.

LA DEFENSA EXTRAJUDICIAL DE LA POSESIÓN: UN ANÁLISIS IMPOSTERGABLE

La finalidad del presente trabajo, de carácter eminentemente cualitativo, es analizar la institución jurídica civil de la defensa extrajudicial de la posesión en el país, considerando a la misma como un método de autocomposición de conflictos de posesión, incidiendo en su importancia como herramienta de solución de conflictos de intereses particulares y de disipar incertidumbres jurídicas. La metodología utilizada es básicamente de carácter descriptiva – explicativa y exegética, pues se analiza la evolución de la legislación peruana respecto a la defensa extrajudicial de la posesión. Los comentarios y resultados obtenidos nos permiten concluir que la actual norma que regula la defensa extrajudicial de la posesión no es coherente con los hechos que se van presentado en la realidad social, lo que resulta preocupante, porque nos permite percibir que las normas civiles peruanas se están regulando no considerando las expectativas de la sociedad y las graves consecuencias jurídicas que las mismas podrían generar.

Abuse of Notary Tenure That Implies Criminal

Notary is a legal profession so that the profession of notary is a noble profession ( nobile Officium ). The deed which is made by the notary can be the legal basis for the status of the property, the rights and obligations of one. Confusion over notarized deed can cause a waiver of a person's rights or the burden of a person on an obligation, therefore notary in the task of his office shall comply with the various provisions of the law number 2 of 2014 on the amendment to law number 30 of 2004 about the Notary Tenure. In the practice of many notary public are found by the parties or other third parties, the notary is often withdrawn as a party to conduct or assist in committing a criminal offence. In law number 2 of 2014 on The Amendment To Law number 30 of 2004 about the notary department there is a vacancy of the norm regarding the criminal responsibility of a notary in the misuse of Notary Tenure. This research aims to analyze the criteria and indicators of Abuse of Notary Office That Implicates Criminal and notary criminal liability in the misuse of notary tenure. This method of research using normative legal, research methods means research using the literature material. The approach is used is a statutory approach, conceptual approach and a case approach. The first result of this research is the criteria and indicators of abuse of the Department of Notary Tenure that Implicates Criminal arising from the admisappropriation of authority which is conducted by the notary stipulated in Article 15 of Law number 2 of 2014 concerning the amendment to the law number 30 of 2004 about the notary tenure. In addition to misuse of authority, the criteria and indicators of abuse of the notary tenure of the criminal arise for not implementing the obligations stipulated in Article 16 paragraph (1) of Law number 2 of 2014 concerning the amendment to law number 30 of 2004 about the notary tenure and the breach of the prohibition set forth in Article 17 paragraph (1) of Law number 2 of 2014 concerning amendment to law Number 30 of 2004 concerning notary. Secondly, the responsibility committed by a notary depends on the mistakes he has made. If the notary violates criminal rules, the notary shall be criminally liable in the form of prison punishment. If the infringed is a civil rules, the notary is subject to a indemnity of the deed and the deed made by the power of the evidence down to be private. Whereas when done is an administrative offence, then the notary can stop from his tenure.

Revising the Federal Rules of Civil Procedure: Carving Out a More Active Role for Congress

The adoption of the Federal Rules of Civil Procedure was a major victory for progressives in the United States. The Rule made access to justice less about one’s ability to hire a high-priced lawyer and more about the swift determination of the merits of the dispute between the parties. Despite efforts of some business interests to alter the rules, by most accounts, by most accounts, the Rules have been successful. But occasional conflicts between the application of federal vs. state law in diversity actions create hard policy choices. As a rule, in diversity actions, federal courts must apply state substantive law and federal procedural law. Of course, drawing the line between substance and procedure often presents courts with difficult vertical choice of law problems. At time, the application of a federal rule may impair significant state substantive interests. However, allowing litigants too easily to challenge the application of a federal rule conflicts with the overall goal of the Rules, which should advance the “just, speedy, and inexpensive determination of every action and proceeding.” Satellite litigation to determine whether a federal or state rule applies cuts against the policy of inexpensive and uniform application of the federal rules. Two recent conflicts between federal and state law present challenges in the application of Court precedent. In Twombly v. Bell Atlantic Corp. and then in Ashcroft v. Iqbal, the Supreme Court rewrote F.R.C.P. 8(a)(2)’s liberal pleading standard, making access to court more difficult for many plaintiffs. Some states have rejected those holdings and adhere to the more liberal standard reflected in the adoption of the Rules. And yet, plaintiffs face more stringent pleading requirements when defendants can remove actions from state to federal court. Application of federal law impairs an important state substantive policy: liberal access to justice. The second conflict that has divided federal court is whether a federal court must apply federal pleading and summary judgment rules in defamation cases when the state would apply special anti-SLAPP provisions. Those provisions make dismissal of certain defamation actions easier than in cases that do not involve First Amendment speech challenges. Again, at issue is the conflict between the uniform application of the relevant federal procedural rules and an important state substantive policy, the advancement of free speech. These two areas present special problems. Generally, federal procedural rules should apply. The two problems discussed in this article present special problems where application of federal law impairs important state interest. Normally, one could expect the Court in conjunction with the Judicial Conference’s Advisory Committee on Civil Rules to revise the rules. Under Chief Justice John Roberts’ leadership, the conference’s members are now “ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, or experientially predisposed to think like corporate defense lawyers.” As a result, progressive reforms of the Rules are not likely to originate with the Court and the Advisory Committee. As a general matter, Congress should take a limited role in reforming the Rules. At the same time, Congress has created special rules in the past. For example, it did so for overtly pro-business reasons in its adoption of special pleading standards that were part of the 2005 Class Action Fairness Act. This article argues for Congress to act to modify the F.R.C.P. in two specific areas: one would clarify that more generous state pleading rules must apply to actions removed from state courts in diversity actions, the other would make clear that state pleading and summary judgment rules should apply when the controlling state law includes anti-SLAPP provisions.

NEW HAMPSHIRE LOTTERY COMMISSION v. BARR, BRIEF OF AMICI CURIAE COALITION TO STOP INTERNET GAMBLING AND NATIONAL ASSOCIATION OF CONVENIENCE STORES IN SUPPORT OF DEFENDANTS-APPELLANTS AND SUPPORTING REVERSAL No. 19-1835 (1st Cir. Dec. 24, 2019)

NEW HAMPSHIRE LOTTERY COMMISSION v. BARR, BRIEF OF AMICI CURIAE COALITION TO STOP INTERNET GAMBLING AND NATIONAL ASSOCIATION OF CONVENIENCE STORES IN SUPPORT OF DEFENDANTS-APPELLANTS AND SUPPORTING REVERSAL No. 19-1835 (1st Cir. Dec. 24, 2019)

An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

Recently the Civil Rules Committee of the Judicial Conference of the United States began considering the need for specific rules related to multidistrict litigation (MDL) proceedings. The possibility of creating rules specifically for MDL has its origins in recent proposed legislation prompted by groups typically tied to the defense bar. One area under consideration by the Civil Rules Committee is the use of fact sheets in MDL proceedings. These party-negotiated questionnaires, directed at parties to the case (both plaintiff and defendant), provide judges and attorneys with information about the scope of the proceeding. Understanding whether these case management tools are currently being used and how they work with other tools such as bellwether trials in MDL proceedings will help inform a discussion of the need for specific MDL rules. Despite their importance, there is very little published empirical work looking at fact sheets in MDL proceedings. This is the first such study of the use of fact sheets. Using a sample of 116 mass tort proceedings (typically involving products liability) centralized through MDL between 2008 and 2018, we examine when fact sheets were ordered, what were the procedures for complying with the case management order, what information was collected, and what effect they have on the termination of the proceedings. The proceeding ranged between 3 and 40,533 actions and were open a minimum of 118 days and a maximum of 3,811 days. Actions terminated within the proceeding at least 98% of the time, but little information is available on how the actions terminated. Proceedings were centralized in 40 districts. We find that fact sheets are ordered more than half the time, and were most likely to be used in the largest proceedings. The information in fact sheets is used in several ways within the proceeding, including identifying cases for bellwether trials and winnowing cases, and the use of fact sheet processes leads to faster termination of the proceeding, all else being equal. Our sample of proceedings suggests judges use fact sheets to organize products liability proceedings when judges perceive they are merited, after considering the size of the proceeding or the nature of the litigation. The frequency with which judges already employ fact sheets and the variation in the use calls into question both the need for a rule and how to write one without tying the hands of transferee judges. Many issues regarding how fact sheets are used remain to be studied more in-depth. We encourage future studies regarding how fact sheets are used across MDL proceedings.

Proposed Change to Federal Rules of Civil Procedure Could Reduce Questions as to Federal Diversity Jurisdiction

At its April meeting, the Advisory Committee on Civil Rules approved a proposed amendment to Federal Rule of Civil Procedure 7.01 that, if adopted, will require that each party to a lawsuit in federal court where jurisdiction is conditioned upon diversity jurisdiction (28 U.S.C. § 1332) file a statement setting forth the information necessary to determine each parties’ citizenship.

Will Bus Operators Beat a Path to Damages Claims in Competition Enforcement? The Experience From the Czech Republic

We may currently be witnessing a slow but significant shift in the enforcement of competition rules. With the latest legal developments in the Czech Republic, in addition to public enforcement led by the competition authorities the ability of parties to seek recovery of damages arising from the infringement of competition rules before the civil courts has become progressively more imminent and realistic. The change is driven by modification of the legal framework as well as by progressive changes in jurisprudence, and the Czech courts’ willingness to hear damages claims appears promising for future success in private enforcement cases. The number of claims for damages in the civil courts in the Czech Republic by private entities that have suffered harm from the infringement of competition law is not significant.1 Surprisingly, almost none of the claims has arisen from a cartel agreement but has been based on abuse of dominance rules and often combined with other legal grounds, such as unfair competition under civil rules. The claimants have mostly been unsuccessful and the claims withdrawn or settled between the parties; exceptionally, however, they have been recognised in part.2

Making State Civil Procedure

State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible. Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys. State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is. This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article helps ensure that relevant information is not limited to those with privileged access and the resources to use it.

The Taxation of Trusts in Portugal

The author provides a historical overview of the recognition of trusts in Portugal, focusing on international private law and civil rules, the tax landscape surrounding a foreign trust, the recent tax treatment of trusts in Portugal and the challenges that lie ahead.

الاتجاهات الفقهیة للتعامل المالی علی جسم الإنسان (دراسة مقارنة)

t It is clear to us that the prevailing opinion is Sharia and a law according to which it is forbidden to dispose of the human body as a means of netting. The human right to his body is not considered a financial right. A human being can not obtain any consideration for the removal of any member of his body. The human body must not be allowed to be harmed for any reason. Determined by law. That the principle of free (donation) when dealing with the human body, is a principle of importance so that it can protect the person from the weakness of himself in front of the temptation of material, or to live, and the need, if he wanted to give up one of its members, will not be motivated to fight it Purely human. If this is the general origin, there are exceptions to this principle (including compensation of the donor for the expenses incurred by him because he has given up a member or his body) _ and these exceptions must be in the case of urgent necessity, The availability of certain controls and conditions, and within the limits at which this action is aimed at achieving a purely humanitarian objective, has not been linked to close security and distant security to any commercial objective or objective. I believe that this is not to say that we should strive to establish a legal system for the human body. This legal system must be protected by criminal and civil rules that deter anyone who wishes to take the human body, its dignity, its humanness and its freedom. Otherwise, there is no value for any study or legal research. Its main purpose is to protect and protect human beings

The Time to Assign Ownership in Forward Sale Sontract of Construction

There has been a long-standing controversy between the authors writing for the law regarding the validity of signing a purchase contract concerning the under-construction buildings. All of the law systems have come to this general agreement that the objective of signing a sale contract is the seller’s transfer of ownership to the buyer. Nevertheless, the law authors have been found having disagreements regarding the time and the quality that the ownership should be conveyed. The ratification of the forward sale contract of construction law in 2010 almost put an end to such disputes and the forward sale of the buildings under construction was considered as legally correct and seamless. Although there are yet these questions remaining that “when the ownership should be transferred in such transactions? Should the ownership transfer be taking place with formally establishing and signing a forward sale contract of construction and/or via the final title deed transfer after the building has been completely constructed?” The answers provided by the jurists to these two questions differ in many respects, some of whom know the ownership transfer as the direct and immediate effect of sale and some others, besides sale contract, necessitate other law actions to be taken in order for the ownership transfer to be fully actualized. Forward sale contract of a building is not a newly emergent contract and besides the general rules authenticate for the various types of contracts such agreements follow the specific ordains made in that code of law. In the current research paper, with an applied objective in mind, we are seeking to take advantage of a descriptive-analytical method and also we deal with the explication of the aspects and the limits of the law-related issues and the obligations that have to be shouldered by the forward seller and forward buyer and the exact time that the ownership should be transferred in the extant body of the law rules and regulations on apartment building’s forward sale and the civil law and rules of procedure and registration of our country. Additionally, we are going to make transparent the ambiguous and controversial issue of the time for transferring ownership; thereby, try to clarify the extant ambiguities which have been allegedly found to be the basic contributing factor leading to the emergence of a great deal of bottlenecks and lawsuits for the parties of the forward sale contracts. The findings of the current study are expected to provide us with an efficient leap in sublimating the awareness in the parties interested in law-related field of study.

Testimony to the Federal Civil Rules Advisory Committee on Proposed Amendments to Rule 23 of the Federal Rules of Civil Procedure

On November 3, 2016 in Washington, D.C., the federal Civil Rules Advisory Committee heard testimony on its proposed amendments to Federal Rule of Civil Procedure 23. Included in the Committee’s proposals is a new Rule 23(e)(5)(B), which would require that payments to class-action settlement objectors and their lawyers be submitted to the district court for approval – that is, the settling parties would not be permitted to pay off objectors or their lawyers on their own. In 1993, the Rules were amended to require that objections to class-action settlements could be withdrawn only with the district court’s approval. See Fed. R. Civ. P. 23(e)(5). But, importantly, that Rule does not apply while a district court’s approval of a class-action settlement is pending on appeal – meaning that objectors and their lawyers may extract payments from the settling parties using a pending appeal as leverage. Among other improvements, the proposed Rule would apply during appeal. (In 1999, I proposed to the Committee that objector settlements be subject to court approval, including while challenges to class-action settlements are pending on appeal.) The document accompanying this abstract contains two items. First, it includes my written testimony addressing proposed Rule 23(e)(5)(B) submitted to the federal Civil Rules Advisory Committee in advance of its November 3, 2016. In that testimony, I propose that the new Rule include a strict standard for district-court approval of side-deals with objectors and their lawyers. This standard would make it difficult for settlement objectors and their lawyers to extract deals that would provide them benefits different from the class-wide settlement approved by the court. If we want to combat extortion in the class-action settlement process, disparate treatment for objectors and their lawyers should be a rare exception. My written testimony includes as an attachment my 1999 proposal on the subject. Second, the document accompanying this abstract also includes my written notes on the oral testimony that I gave to the Advisory Committee on November 3. My oral testimony covers not only my thoughts on proposed new Rule 23(e)(5)(B), but ideas about reforms to Rule 23’s notice requirements. Committee members questioned me about the notice issues, but the Committee’s questions and my responses are not available here.

Civil Rules Interpretive Theory

We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.

The 2015 Civil Rules Package As Transmitted to Congress

THIS article provides an overview of the of amendments to the Federal of Civil Procedure, which were collectively forwarded to Congress for evaluation this spring. A copy of the text of each of the proposals is included in the Appendix to this article. The amendments will become effective on December 1, 2015 if Congress does not adopt legislation to reject, modify, or defer them. (1) I. History of the Amendments A. Background The amendments to the Federal of Civil Procedure, which were collectively forwarded to Congress by the Supreme Court on April 29, 2015, (2) culminated a four-year effort by the Civil Advisory Committee (the Rules Committee) operating under the supervision of the Committee on of Practice and Procedure of the Judicial Conference (the Committee). The process began with the 2010 Conference on Civil Litigation held by the Committee at the Law School (the Conference). The Conference was held in response to concerns about the costs of litigation, especially discovery and e-discovery. (3) A number of studies, surveys and empirical studies were submitted in advance, and panels discussed the relevant issues. (4) Key takeaways from the Conference included the need for improved case management, application of the long-ignored principle of and cooperation among parties in discovery. (5) In addition, an e-discovery panel reached a consensus that a rule addressing preservation (spoliation) would be a valuable addition to the Federal of Civil Procedure. (6) The Committee divided the task of developing individual rule proposals between the Duke Subcommittee, chaired by the Hon. John Koeltl, and the Discovery Subcommittee, subsequently chaired by the Hon. Paul Grimm. The Discovery Subcommittee focused on a replacement for Rule 37(e). (7) Both subcommittees vetted alternative draft rule proposals at mini-conferences. An initial of the proposals resulting from these efforts was released for public comment in August 2013. (8) After a robust public comment period, the subcommittees recommended revisions, which were adopted by the Committee at its April 2014 meeting in Portland, Oregon. The Standing Committee unanimously approved the revised proposals at its May 29, 2014 meeting. The revised proposals were then submitted with recommendations for approval to the Judicial Conference, (9) which approved the rules on their consent calendar and forwarded them to the Supreme Court for its review. (10) The Supreme Court adopted the proposed amendments without change and forwarded the full package to Congress after having suggested certain minor changes in several Committee Notes. (11) B. Hearings and Public Comments The Committee conducted Public Hearings on the initial proposals in late 2013 and early 2014 that involved 120 testifying witnesses. (12) The first hearing was held by the Committee in Washington, D.C. on November 7, 2013 and was followed by a second hearing on January 9, 2014 in Phoenix, and a third and final hearing on February 7, 2014 at the Dallas (DFW) airport. In addition, the Committee received over 2,300 written comments. (13) Lawyers for Civil Justice (LCJ) (14) and the American Association for Justice (AAJ, formerly ATLA) provided expansive comments. (15) The AAJ urged rejection of rules that added proportionality factors to the scope of discovery, imposed reduced presumptive limits and made sanctions less likely in instances of spoliation, whereas LCJ supported limiting sanctions, adding proportionality to the scope of discovery, acknowledging cost-allocation and making reductions in presumptive numerical limits on use of discovery devices. Individual comments were submitted by representatives of corporate entities and affiliated advocacy groups and law firms as well as attorneys and representatives of plaintiff advocacy groups for individual claimants. …

Class Actions and the Counterrevolution Against Federal Litigation

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.

Answer to Questions for the Record Submitted to Professor Patricia W. Moore Following the Hearing on 'The State of Class Actions Ten Years after the Enactment of the Class Action Fairness Act'

This is Professor Moore’s response to questions for record submitted to her after hearing before Committee on Judiciary, Subcommittee on Constitution and Civil Justice, U.S. House of Representatives, on State of Class Actions Ten Years After Enactment of Class Action Fairness Act on February 27, 2015. The questions submitted to her asked whether, when determining requirements of class certification, Congress should limit a class to those individuals with same or similar or those individuals whose damages or injuries have been sustained due to the same or similar proximate cause or the same product or activity.The response begins by noting that wording of questions appeared designed to eliminate what majority witnesses at hearing termed no-injury class The response argues that term no-injury class action is a recently-invented term without roots in law of class actions, and that term is misleading when applied indiscriminately to all class actions. The substantive law, whether federal or state, determines when a person is injured, and majority witnesses’ assertion that certain class members have suffered no injury contravenes governing substantive law.The response then more specifically addresses suggested language in questions submitted. The suggested limitations, if passed by Congress, would restrict class actions. First, it is unclear how broad-brush language would be applied to class for injunctive relief, such as civil rights cases. Second, language sounds like existing law, but those seeking to eliminate so-called no-injury class actions intend that language should be interpreted in a new and more radical way so to make it much more difficult to obtain class certification than under existing law. Third, language would in essence require a class, at certification, to include only class members who could prove their case on merits. That would constitute an impermissible fail-safe class allowing any class member who did not prove her case on merits to escape being bound by class judgment. Fourth, existing certification requirements of commonality, typicality, and predominance provide sufficient tools for federal judges to rigorously apply standards to unique factual situations.The response also notes that Civil Rules Advisory Committee is currently considering numerous changes to Rule 23, so that legislation is premature. Finally, response calls for Congress to require public release of data on federal class actions.

“Breves notas sobre a responsabilidade civil nas cirurgias plásticas reparadora, estética e de transgenitalização e nos tratamentos dermatológicos. Análise da jurisprudência”

A responsabilidade civil é um dos institutos do direito privado que mais permite a criatividade do jurista. Na regulamentação da matéria, a lei estabelece o dever de indenizar, mas deixa a cargo do profissional do direito a verificação da existência do ilícito no caso concreto. Essa abertura torna fértil o campo da doutrina e da jurisprudência, na construção dogmática do conteúdo e dos limites da responsabilidade civil.&lt;br /&gt; No caso do cirurgião plástico, a responsabilidade civil envolve importantes questões. As mais relevantes são a origem da responsabilidade, se contratual ou extracontratual; a natureza da responsabilidade, se subjetiva ou objetiva; a natureza da obrigação, se de meio ou de resultado; e a classificação da atividade médica como de risco ou-não. Por se tratar de relação de consumo, as particularidades da relação médico-paciente sob o enfoque do dever de informação igualmente são relevantes.&lt;br /&gt; Neste artigo, pretendeu-se tratar cada um desses temas, a partir das especificidades das diversas cirurgias plásticas, inclusive da operação de mudança de sexo do transexual, denominada cirurgia de transgenitalização e dos tratamentos dermatológicos. Além da doutrina nacional e estrangeira, foram trazidas decisões judiciais em diferentes sentidos, com vistas a ilustrar a complexidade do tema e a necessidade de aprofundamento da reflexão.&lt;br /&gt; Pela análise do Código Civil, do Código de Defesa do Consumidor e de normas do Conselho Federal de Medicina procurou-se estabelecer pontos de contato e enfrentar as aparentes contradições, na tentativa de contribuir para a construção dogmática da responsabilidade civil do médico na cirurgia plástica.