The Forum Game

One of the more interesting contradictions in law is the common description of litigation as a game while simultaneously decrying game playing in the litigation process Litigation involves strategic choice as game theory illustrates One of those strategic choices includes the plaintiffs initial selection of the forum which the defendant may attempt to counter through transfer strategies of its own Criticizing and trivializing forum selection through the label of forum shopping misapprehends the forum game by treating forum selection as a parlor trick as unfair and abusive rather than as a lawful authorized strategy Forum shopping is not a form of cheating by those who refuse to play by the rules Playing by the rules includes the ability of plaintiffs counsel to selectand the ability of defendants counsel to attempt to counterthe set of rules by which the litigation game will be playe

Reasonableness in E-Discovery

Issues of reasonableness arise regularly throughout American law. Reasonableness is a concept central to tort law, which imposes a reasonable person standard in ascertaining duty. Criminal guilt turns on a reasonable doubt standard. And in civil discovery, the concept of reasonableness features prominently: discovery\u27s scope reaches information that is reasonably calculated to lead to the discovery of admissible evidence, and discovery cannot be unreasonably cumulative or duplicative. Reasonableness standards require judges to undertake an objective, rather than subjective, evaluation. E-discovery specifically has two significant overarching reasonableness components: reasonable accessibility for production and reasonable care in preservation and disclosure. The interpretation of these two components plays a central and determinative role in the effectiveness and burdensomeness in discovering electronically stored information. This Symposium Article addresses the first of these two components - reasonable accessibility - analyzing the guidance available on this issue from the case law and commentators and concluding that current approaches to reasonable accessibility often fail to employ the required objective reasonableness standard. Current approaches tend to err in two prominent ways: (1) by relying inappropriately on informational classifications, and (2) by merging distinct standards into a single standard. Of particular significance, Federal Rule 26 creates a twofold reasonableness interpretation - both with respect to what constitutes reasonable accessibility and also with respect to what constitutes undue burden or expense. However, rather than undertaking an objective, fact-specific inquiry of reasonable accessibility, some courts are relying on categories for presumptive accessibility or inaccessibility. In addition, many courts appear to be evaluating undue burden or expense as one conflated standard that considers only cost

The Hidden Bias in Diversity Jurisdiction

Part I of this Article briefly examines diversity jurisdiction generally and historically. Part II analyzes the interplay between diversity jurisdiction and antirural bias. Finally, Part III proposes limitations upon diversity jurisdiction in recognition of the impact of this bias in the exercise of diversity jurisdiction

Constructing Class Action Reality

Class actions have become quite controversial and this controversy has brought calls for reexamination and reform As one might expect legislative reforms — both proposed and enacted — have sought quick fixes for perceived problems and shortcomings in class action practice More surprisingly the calls for reexamination in the academic legal literature have proffered proposals that not only contradict the historical understanding of class actions but indeed erode and undermine the very foundation of the theoretical justification for class actions — and thus seek not merely innovation or reform but actually seek to construct a new class action reality Moreover these recent proposals seek to construct this new class action reality in a remarkably uniform manner — and one that raises significant constitutional issues Specifically this reconstruction of class action reality pits two inherent components of class actions against each other one that focuses on the representative nature of the class action device and one that focuses on the aggregate or efficiency component of class action