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By Dave Hoffman

Stipulated Damages, Exculpatory Clauses and Unconscionability

On re-reading Discover Bank v. Superior Court (Cal. 2005) I found myself getting hung up on a conceptual problem you might be able to help me with.  The Discover Bank court considered the validity of class action arbitration waivers. Holding such waivers unconscionable as a matter of law, the court halted (that is, until Concepcion) arbitration’s inexorable [...]

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What Should We Be Working On? Empirical Civil Procedure Post CELS

Earlier this week, I argued that civil procedure empiricists are spending too much time on the Twiqbal problem.  That’s not the same as saying that Twiqbal is an unimportant set of cases.  It probably signals an important shift in federal pleading doctrine, and, arguably, some litigants we care about are being shut out of federal court. [...]

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CELS VII: Data is Revealing Part 2

  [This is part 2 of my recap of the Penn edition of CELS, promised here. For Part 1, click here.  For previous installments in the CELS recap series, see CELS III, IV, V, and VI, VII.] Where were we?  I know: throwing stink-bombs at a civil procedure panel! At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was [...]

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