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Articles 1 - 30 of 43
Full-Text Articles in Law
Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short
Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short
Faculty Scholarship
Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.
This Article …
Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll
Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll
Law & Economics Working Papers
As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …
Preliminary Injunctions In Public Law: The Merits, Kevin J. Lynch
Preliminary Injunctions In Public Law: The Merits, Kevin J. Lynch
Sturm College of Law: Faculty Scholarship
The law of preliminary injunctions has been evolving, in many instances away from its roots in equity and towards a more rigid and formalistic approach that raises the bar for when a preliminary injunction may be granted. This change has its roots in hostility at the Supreme Court to certain types of rights, such as abortion, voting rights, public health, and environmental protection, to name a few. In the aftermath of the Supreme Court’s 2009 decision in Winter v. Natural Resources Defense Council, a few circuits have adopted a strict, literal reading of some dicta from that case in order …
Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert
Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert
Faculty Articles
This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …
The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol
The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol
Faculty Articles
The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …
A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro
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.
Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly …
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …
Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux
Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux
Publications
This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.
Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux
Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux
Publications
No abstract provided.
The Federal Rules Of Inmate Appeals, Catherine T. Struve
The Federal Rules Of Inmate Appeals, Catherine T. Struve
All Faculty Scholarship
The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management …
Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux
Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux
Publications
No abstract provided.
The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux
The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux
Publications
No abstract provided.
Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux
Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux
Publications
This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.
This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …
The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux
The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux
Publications
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.
First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …
Class Action Myopia, Maureen Carroll
Class Action Myopia, Maureen Carroll
Articles
Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …
Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta
Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta
Faculty Publications
So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …
Processing Disability, Jasmine E. Harris
Processing Disability, Jasmine E. Harris
All Faculty Scholarship
This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, …
Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell
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 …
A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux
A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux
Publications
No abstract provided.
The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux
The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux
Publications
No abstract provided.
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux
The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux
Publications
No abstract provided.
Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux
Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux
Publications
No abstract provided.
The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.
The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.
Articles
Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.
This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …
Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe
Law Faculty Scholarship
The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …
How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux
How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux
Publications
No abstract provided.
The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.
The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.
Articles
The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.
This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Publications
No abstract provided.
I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh
Faculty Scholarship
With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Law Faculty Publications
No abstract provided.