Law Commons^™

Civil Procedure Update 2023, Verónica Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave

Faculty Scholarship

The Supreme Court has said that general jurisdiction provides at least one clear and certain forum to sue defendants, and that assumption has begun to shape the Court’s understanding of specific jurisdiction. But that assumption is wrong. General jurisdiction does not provide a guaranteed U.S. forum for foreign defendants or in cases involving multiple defendants. And even when defendants can be sued “at home,” such cases may be (and not infrequently are) dismissed for forum non conveniens, sometimes even when no alternative forum is available.

Nor is a regime reliant on a general jurisdiction backstop desirable. The Court’s narrowed version …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica K. Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Millions of debt cases are filed in the civil courts every year. In debt actions, asymmetrical representation is the norm, with the plaintiff almost always represented by counsel and the defendant very rarely so. A number of jurisdictions report that up to ninety-nine percent of defendants in debt cases appear pro se — a figure that calls into question the basic legitimacy of these proceedings.

Professor Daniel Wilf-Townsend’s central contribution to the literature on debt collection, and state civil justice more broadly, is to demonstrate through sophisticated empirics what has long been anecdotally reported: that a cluster of corporate plaintiffs …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.

This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts …

America's Lawyerless Courts: Legal Scholars Work To Recommend Large-Scale Changes In Lawyerless Civil Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

At approximately 9:00 on most weekday mornings, thousands of state civil courts open their doors and begin hearing cases. These cases involve hundreds of thousands of people acrossthe country. State civil courts are the core of America's civil justice system, whether measured by a raw number of cases or courts'impact on ordinary people's lives. These courts handle 98% of all civil matters filed each year – around 20 million cases.

Many people are pulled into civil court because they cannot pay their rent or debts. Many more come to court for help with intimate and family relationships, including those seeking …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …

A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro

Faculty Scholarship

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Civil Procedure As A Critical Discussion, Susan Provenzano, Brian N. Larson

Faculty Scholarship

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and …

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of …

The Procedure Of Patent Eligibility, Paul Gugliuzza

Faculty Scholarship

A decade ago, the patent-eligible subject matter requirement was defunct. Several recent Supreme Court decisions, however, have made eligibility the most important issue in many patent cases. To date, debates over the resurgent doctrine have focused mainly on its substance. Critics contend that the Supreme Court’s case law makes patents too easy to invalidate and discourages innovation. Supporters emphasize that the Court’s decisions help eradicate the overly broad patents often asserted by so-called patent trolls.

Yet one important consequence of eligibility’s revival has been procedural. Because district courts often view eligibility to present a pure question of law, they are—for …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

The Keys To The Kingdom: Judges, Pre-Hearing Procedure, And Access To Justice, Colleen F. Shanahan

Faculty Scholarship

Judges see themselves as – and many reforming voices urge them to be – facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges …

The Patently Unexceptional Venue Statute, Paul Gugliuzza, Megan M. La Belle

Faculty Scholarship

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics …

Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

The Corporation As Courthouse, Rory Van Loo

Faculty Scholarship

Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system of private actors. These actors include ratings websites that mete out reputational sanctions. The system also includes other corporations linked to the transaction, such as when American Express adjudicates a contested sale between a shopper and Home Depot. This vast private order offers promise to …

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany

Faculty Scholarship

No abstract provided.

Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …

Judicial Priorities, Bert I. Huang, Tejas N. Narechania

Faculty Scholarship

In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," which was causing legal research to become "unnecessarily burdensome, difficult and costly." This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …