Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson
Dec 2018
Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson
Scott Dodson
Personal jurisdiction usually focuses on the rights of the defendant. That is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that, in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization of federal-court …
Beyond Bias In Diversity Jurisdiction, Scott Dodson
Dec 2018
Beyond Bias In Diversity Jurisdiction, Scott Dodson
Scott Dodson
The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state-court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. In my view, both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem is the …
The Irrelevance Of Jurisdictionality In Fort Bend County V. Davis, Scott Dodson
Dec 2018
The Irrelevance Of Jurisdictionality In Fort Bend County V. Davis, Scott Dodson
Scott Dodson
In Fort Bend County v. Davis, the Supreme Court has been asked to decide whether Title VII's exhaustion requirement is jurisdictional. I argue that the Court should not answer that question because it is the wrong question. The real issue confronting the parties in the case is whether the district court was correct to dismiss a claim for failure to exhaust when the defendant failed to raise the exhaustion defect until summary judgment. That issue implicates the effects of the defect, not its character. Those effects can be determined from ordinary principles of statutory interpretation. The parties and the …
The Irrelevance Of Jurisdictionality In Fort Bend County V. Davis, Scott Dodson
Dec 2018
The Irrelevance Of Jurisdictionality In Fort Bend County V. Davis, Scott Dodson
Scott Dodson
No abstract provided.
Jurisdiction In The Trump Era, Scott Dodson
Dec 2017
Jurisdiction In The Trump Era, Scott Dodson
Scott Dodson
The next four years—and perhaps beyond—are likely to solidify two recent trends in jurisdictional doctrine favoring defense interests. First, the narrowing of personal jurisdiction has given defendants more opportunities to secure home-state advantage and, as an ancillary matter, hinder plaintiff-friendly aggregation. This narrowing is likely to continue in light of President Trump’s judicial appointments and the disinclination of Congress and rulemakers to expand personal jurisdiction in federal court. Second, recent expansions of diversity jurisdiction allow defendants to invoke favorable federal procedures and interstate venue transfer. Despite longstanding calls to reduce the scope of diversity jurisdiction, Congress is trending in the …
A Model Code Of Conduct For Student-Edited Law Journal Submissions, Scott Dodson, Jacob Hirsch
Dec 2017
A Model Code Of Conduct For Student-Edited Law Journal Submissions, Scott Dodson, Jacob Hirsch
Scott Dodson
Although much commentary covers the peculiar American institution of the student-edited law review, the literature fails to develop detailed norms governing author and journal conduct during the submission process. This essay sets out a Model Code of Conduct for journal submissions. It addresses all phases of the submission process, from pre-submission journal disclosures to post-acceptance conduct. The hope is that the rules contained in the Model Code will spur norm development in an area badly in need of guidance.
Should The Rules Committees Have An Amicus Role?, Scott Dodson
Dec 2017
Should The Rules Committees Have An Amicus Role?, Scott Dodson
Scott Dodson
Despite its formal status as promulgator of federal-court rules of practice and procedure, the Supreme Court is a suboptimal rule interpreter, as recent groundbreaking but flawed rules decisions illustrate. Scholars have proposed abstention mechanisms to constrain the Court in certain rule-interpretation contexts, but these mechanisms disable the Court from performing its core adjudicatory functions of dispute resolution and law interpretation. This article urges a different solution: bring the rulemakers to the Court. It argues that the Rules Committees—those bodies primarily responsible for studying the rules and drafting rule amendments—should take up a modest amicus practice in rules cases to offer …
Personal Jurisdiction And Aliens, Scott Dodson, William Dodge
Dec 2017
Personal Jurisdiction And Aliens, Scott Dodson, William Dodge
Scott Dodson
The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole …
Defending Jurisdiction, Scott Dodson
Dec 2017
Defending Jurisdiction, Scott Dodson
Scott Dodson
This response to a critic of my Georgetown Law Journal article "Jurisdiction and Its Effects" defends my framework for jurisdiction.
Personal Jurisdiction And Aggregation, Scott Dodson
Dec 2017
Personal Jurisdiction And Aggregation, Scott Dodson
Scott Dodson
Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction—especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a number of areas, including simple …
A Negative Retrospective Of Rule 23, Scott Dodson
Dec 2016
A Negative Retrospective Of Rule 23, Scott Dodson
Scott Dodson
This symposium contribution offers a negative retrospective of Rule 23 through six decades of rulemaking. Rather than focus on what was, I consider what was not: major amendment proposals that failed to become law. This negative retrospective projects a dramatically different vision of Rule 23, and it offers insights into both the Rule 23 of today and the rulemaking process more generally.
Jurisdiction And Its Effects, Scott Dodson
Dec 2016
Jurisdiction And Its Effects, Scott Dodson
Scott Dodson
Jurisdiction is experiencing an identity crisis. The Court has given jurisdiction three different identities: jurisdiction as power, jurisdiction as defined effects, and jurisdiction as positive law. These identities are at war with each other, and each is unsustainable on its own. The result has been a breakdown in the application of the basic question of what is jurisdictional and what is not.
I aim to rehabilitate jurisdiction. Jurisdiction is none of the three identities above. Rather, jurisdiction determines forum in a multiforum system. It seeks not to limit a particular court in isolation but instead to define boundaries and …
Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo
Dec 2015
Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo
Scott Dodson
Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants—one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive …
The Gravitational Force Of Federal Law, Scott Dodson
Dec 2015
The Gravitational Force Of Federal Law, Scott Dodson
Scott Dodson
In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel—such as matters of court procedure, certain statutory law, and even some constitutional law—states have full authority to legislate and interpret state law in ways that diverge from analogous federal law. But, in large measure, they don’t. It is as if federal law exerts a gravitational force that draws states to mimic federal law even when federal law does not require state conformity. This paper is the first to explore the widespread phenomenon of …
An Opt-In Option For Class Actions, Scott Dodson
Dec 2015
An Opt-In Option For Class Actions, Scott Dodson
Scott Dodson
Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? …
Atlantic Marine And The Future Of Party Preference, Scott Dodson
Dec 2014
Atlantic Marine And The Future Of Party Preference, Scott Dodson
Scott Dodson
In Atlantic Marine, the U.S. Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. This paper is derived from my presentation at the symposium on Atlantic Marine held at UC Hastings College of the Law on September 19, 2014. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for …
Pleading And The Litigation Marketplace, Scott Dodson
Dec 2014
Pleading And The Litigation Marketplace, Scott Dodson
Scott Dodson
In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.
Literary Justice, Scott Dodson, Ami Dodson
Dec 2014
Literary Justice, Scott Dodson, Ami Dodson
Scott Dodson
This microsymposium essay empirically (and somewhat humorously) measures which current U.S. Supreme Court justice is the most literate, as determined by citations to great works of literary fiction. It further identifies the justices' favorite literary authors. Consistent with the mission of the Green Bag, the essay is meant to be lighthearted and entertaining, but it also recognizes the underlying importance of the intersection of legal opinion-writing and literary fiction.
The Short Paper, Scott Dodson
Dec 2013
The Short Paper, Scott Dodson
Scott Dodson
Short papers have been relegated to secondary status primarily because of their length. But many scholarly papers of under 10,000 words have had monumental impact in legal thought. I argue for a reassessment of the short paper's value and offer some prescriptions for assimilating more openness to the short paper going forward.
Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger
Dec 2013
Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger
Scott Dodson
This essay, adapted from the video presentation available at http://vimeo.com/89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative—of a decline in pleading liberality from Conley to Twombly to Iqbal—is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope to introduce a new visual format for academic scholarship that capitalizes on the virtues of narration, graphics, mapping, online accessibility, …
Party Subordinance In Federal Litigation, Scott Dodson
Dec 2013
Party Subordinance In Federal Litigation, Scott Dodson
Scott Dodson
American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my …
Parsing Judicial Activism, Scott Dodson
Dec 2012
Parsing Judicial Activism, Scott Dodson
Scott Dodson
This microsymposium contribution responds to Suzanna Sherry's paper "Why We Need More Judicial Activism" and offers a heuristic--what I call libertarian activism--for distinguishing activism that reduces governmental power from activism that enhances governmental power.
Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson
Aug 2012
Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson
Scott Dodson
This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.
Rethinking Extraordinary Circumstances, Scott Dodson
Dec 2011
Rethinking Extraordinary Circumstances, Scott Dodson
Scott Dodson
This short essay seeks to rationalize the "extraordinary circumstances" doctrine of Rue 60(b)(6) of the Federal Rules of Civil Procedure. The usual rule is that a movant for Rule 60(b)(6) relief must show extraordinary circumstances for that relief. Under the Ackermann rule (so named after the Supreme Court decision that spawned it), courts have held that any extraordinary circumstances cannot have been caused by the movant's own litigation conduct. I argue that the Ackermann rule, at its broadest, would be unjust to those litigants most in need of Rule 60(b)(6) relief and would overserve finality interests. I propose, instead, that …
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Dec 2011
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Scott Dodson
This essay, for Vanderbilt Law Review En Banc, critically assesses Jonathan Remy Nash’s article, "On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction," which proposes to use rules to demarcate jurisdictional boundaries at the front end while "migrating" standards into a discretionary abstention phase at the back end. While we believe Nash's cause is worthy, and while we applaud his creativity, we think his proposal suffers from ambiguous definitions of “rules” and “standards” and assumes that clear and simple “rules” are actually attainable in jurisdictional doctrine. We also show that Nash's proposal works only with a broad …
Presuit Discovery In A Comparative Context, Scott Dodson
Dec 2011
Presuit Discovery In A Comparative Context, Scott Dodson
Scott Dodson
In civil litigation around the globe, the usual process is that investigative discovery is allowed (if at all) only after the plaintiff files an initial pleading. Recently, however, a growing number of jurisdictions have adopted general mechanisms for presuit investigative discovery. This paper explores these mechanisms and probes their nature and importance. It first finds that presuit investigative discovery is surprisingly prevalent among common-law systems, despite the usual order of pleading and discovery. The paper then argues that presuit investigative discovery can provide a useful tool for enabling plaintiffs to file a sufficient complaint in fact-pleading jurisdictions. Finally, the paper …
A New Look At Dismissal Rates In Federal Civil Cases, Scott Dodson
Dec 2011
A New Look At Dismissal Rates In Federal Civil Cases, Scott Dodson
Scott Dodson
In the wake of Twombly and Iqbal, a number of studies have been conducted to determine their effects on dismissal practice in federal civil cases. However, because of coding and collection difficulties, those studies have tended to code whole cases rather than claims--leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute--and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and …
The Complexity Of Jurisdictional Clarity, Scott Dodson
Feb 2011
The Complexity Of Jurisdictional Clarity, Scott Dodson
Scott Dodson
The ideal of clear and simple jurisdictional rules seems like a no-brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates …
Hybridizing Jurisdiction, Scott Dodson
Dec 2010
Hybridizing Jurisdiction, Scott Dodson
Scott Dodson
Federal jurisdiction—the “power” of the court—is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any—or even all—of the attributes of jurisdictionality.
This Article drops the other shoe. Jurisdictional rules can be hybridized, too. Jurisdictional rules can be hybridized with nonjurisdictional features in myriad forms. …
Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson
Dec 2009
Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson
Scott Dodson
No abstract provided.
