Civil Litigation as a Means of Compensating Victims of International Terrorism

This Article discusses the rules of procedural law that authorize United States courts to enter civil judgments against international terrorists and the foreign states that sponsor them. Somewhat surprisingly, these rules do not make such judgments difficult to obtain. As the Sutherland case illustrates, plaintiffs have already recovered substantial money judgments against terrorist defendants. Not surprisingly, the real difficulties are encountered when plaintiffs seek to enforce such judgments. Private parties have successfully utilized civil litigation as a means of neutralizing domestic hate groups. The question now is whether they can achieve similar success with respect to international terrorists. Success in this context is measured by two basic goals: compensation of victims of international terrorism and deterrence of future wrongful acts on the part of international terrorist organizations and their state sponsors. This article attempts to provide some assessment of whether the rules of procedural law permit private parties to accomplish these goals. There has been a considerable amount of civil litigation involving international terrorism, even before the attacks in New York and Washington on September 11, 2001. Nearly all these cases have resulted in default judgments. As a consequence, few appeals have been taken and many of the procedural issues have not been addressed by appellate courts. This Article therefore begins with discussion of the three components that determine the validity of a default judgment within the United States courts: personal jurisdiction, service of process, and subject matter jurisdiction. Other issues discussed include venue and forum non conveniens, choice-of-law and jurisdiction to prescribe, the act of state doctrine, and judgments and enforcement of judgments. This Article concludes with some suggestions for the courts, the Congress, and the Executive branch that might provide the victims of international terrorism with more effective means of redress through civil litigation

California’s Confusing Collateral Estoppel (Issue Preclusion) Doctrine

This Article discusses two related problems regarding the scope of the collateral estoppel doctrine applied by the California courts. Both problems concern the determination of whether issues were “actually litigated and determined” by a prior judgment. Both implicate the tension between the desire to achieve judicial economy on the one hand, and the right of a party to a fair opportunity for a full adversary hearing on an issue on the other. The next section of Part I examines the policies underlying the preclusion doctrines, and explains how clear issue preclusion rules applied in an underinclusive manner further these policies. Part I then briefly describes California’s current claim preclusion doctrine as background to the collateral estoppel problems discussed in Part II

Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic

This is the published version

Can the Tolling of Statutes of Limitations Based on the Defendant\u27s Absence from the State Ever Be Consistent with the Commerce Clause

This Article discusses the propriety of these Commerce Clause decisions with respect to individual defendants. More precisely, this Article examines two questions. The first is whether the Supreme Court\u27s holding in Bendix was properly extended to individual resident and nonresident defendants. The other, and more difficult, issue concerns the proper application of the Commerce Clause to state statutes that toll the statute of limitations during the time a resident defendant is temporarily absent from the state. The Article focuses on whether such provisions violate the Commerce Clause regardless of the reason for the absence. Part I of this Article examines the nature and operation of state statutes that toll statutes of limitations during a defendant\u27s absence, as well as the reasons why many states enacted such legislation. Part II discusses dormant Commerce Clause jurisprudence generally, and its application to tolling provisions based on absence from the state. This Part summarizes both the Supreme Court\u27s decision in Bendix, which invalidated certain absence-based tolling provisions when applied to nonresident corporations, and state and lower federal court decisions that extended Bendix to individual defendants. Part III addresses the two issues identified in the previous paragraph and concludes that the extension of Bendix to individual defendants is clearly appropriate. This Part also explains why absence-based tolling violates the Commerce Clause when applied to a resident defendant who temporarily leaves the state, regardless of the purpose of the out-of-state travel. Finally, this Article concludes that absence-based tolling survives Commerce Clause scrutiny only in very limited circumstances

Toward Reasonable Limitations on the Exercise of General Jurisdiction

General jurisdiction is one of the most controversial aspects of the current jurisprudence of personal jurisdictions. General jurisdiction refers to a state\u27s exercise of personal jurisdiction over a nonresident defendant in a lawsuit not arising out of or related to the defendant\u27s contacts with the forum. General jurisdiction is particularly controversial in international litigation involving foreign defendants who do business in the United States. This article examines the potential limitations on the exercise of general jurisdiction in the context of international civil litigation

California’s Unpredictable Res Judicata (Claim Preclusion) Doctrine

The doctrine of res judicata describes a set of rules that determine the preclusive effects of a final judgment on the merits. The California doctrine has two familiar components: a primary aspect, “res judicata” or claim preclusion; and a secondary aspect, “collateral estoppel” or issue preclusion. Under the claim preclusion aspect, a prior judgment bars the parties (or those in privity with them) from relitigating the “same cause of action” in a subsequent proceeding. Under the issue preclusion aspect, although a second suit between the same parties on a different cause of action is not precluded by a prior judgment, the first judgment operates as a conclusive adjudication as to such issues in the second action as were “actually litigated and determined” in the prior proceeding

California civil procedure

Written for those upper-level law students who intend to practice law in California, this casebook emphasizes those aspects of California Civil Procedure that are significantly different that the federal system. California Civil Procedure has several goals. First, upon completion of a course using this casebook, students will be prepared to competently conduct civil litigation in the California courts. Furthermore, this book examines the procedural advantages and disadvantages of litigating in the California courts as opposed to federal courts so new lawyers can make an informed choice between filing an action is one system or the other. This casebook also provides students with a brief summary of the federal or general position on each major topic as a basis of comparison and as a review of first-year civil procedure.https://digital.sandiego.edu/law_fac_books/1035/thumbnail.jp

Floods, Fires, and Inverse Condemnation

This Article examines the proper application of the doctrine of inverse condemnation in two important areas: flood damage to private property caused by a public improvement (e.g., a flood control, storm drain, or sewer project), and wildfire damage to private property caused by a project (e.g., electricity or telephone lines) undertaken by either a public or privately-owned utility. Under the doctrine of inverse condemnation, a plaintiff may recover for a physical injury to private property caused by a public improvement as deliberately designed, constructed, or maintained.Inverse condemnation provides an important means of obtaining compensation for government harm to private property, through the vehicle of civil litigation. One of the most important legal and policy issues in inverse condemnation cases is the proper standard of liability, given the enormous potential liability for damages to property and people. With respect to inverse condemnation cases generally, most jurisdictions have endorsed a strict liability standard as the fairest method of vindicating the relevant loss-distribution and deterrence policies. However, in cases seeking compensation for damage caused by certain flood improvement projects, courts have recognized competing policy concerns and adopted a multi-factored “reasonableness” standard. In wildfire cases, the proper standard of liability—whether strict liability or some sort of reasonableness test—will have significant repercussions for government entities, utilities, property owners, and the public.How courts define the standard of liability in inverse condemnation cases will become increasingly important in both the flooding and wildfire contexts. The continuing nature of climate change will likely mean more flooding in some areas of the United States and more wildfires in others. This Article examines issues concerning the standard of liability in both contexts with the goal of determining their proper resolution by the courts