Law Commons^™

Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore

Faculty Scholarship

There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …

Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, Robert A. Lusardi

Faculty Scholarship

While recognizing the importance of a statute of limitations, Federal Rule of Civil Procedure 15 acts as a counterbalance to such statutes by allowing a plaintiff to freely amend a complaint to assert additional claims, or to name new or additional parties, and have those amendments relate back to a complaint filed within the statute of limitations even though that statute has run.

There have been interpretive problems, particularly with the language of Rule 15 (c)(1)(C)(ii). These problems arise when the "amendment changes the party or the naming of the party" after the statutory period and the conditions of Rule …

Plausible Answers And Affirmative Defenses, Eric S. Janus, Thomas Tinkham

Faculty Scholarship

Our federal courts have introduced a degree of uncertainty in the law of pleading that ought to be resolved with a clear decision about the scope of Twombly and Iqbal. We write to set forth what we believe are the overwhelming arguments in support of the developing majority view: pleading standards should not distinguish between plaintiffs and defendants, or between pleadings asserting and pleadings defending against a claim. Proponents of the minority view make policy arguments grounded in the asserted realities of litigation, leveraging small textual differences between Federal Rule of Civil Procedure Rule 8(a) and 8(c). But the …

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …

Reviving Judicial Gatekeeping Of Aggregation: Scrutinizing The Merits On Class Certification, Richard L. Marcus

Faculty Scholarship

No abstract provided.