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Articles 1 - 7 of 7
Full-Text Articles in Law
The Forms Had A Function: Rule 84 And The Appendix Of Forms As Guardians Of The Liberal Ethos In Civil Procedure, A. Benjamin Spencer
The Forms Had A Function: Rule 84 And The Appendix Of Forms As Guardians Of The Liberal Ethos In Civil Procedure, A. Benjamin Spencer
Faculty Publications
The Appendix of Forms that, from the time of their adoption have accom - panied the Federal Rules of Civil Procedure, are a seeming anachronism, more appropriate for a much simpler time that hardly characterizes modem day federal civil litigation. Perhaps the form for a negligence complaint is the most striking in this regard, offering only that at a certain time and place "the defendant negligently drove a motor vehicle against the plaintiff," causing harm.2 Not only does such a complaint fail to typify the negligence claims one might find on any federal docket, but it also fails to reflect …
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
All Faculty Scholarship
The Supreme Court’s decision in Scott v. Harris has quickly become a staple in many Civil Procedure courses, and small wonder. The cinematic high-speed car chase complete with dash-cam video and the Court’s controversial treatment of that video evidence seem tailor-made for classroom discussion. As is often true with instant classics, however, splashy first impressions can mask a more complex state of affairs. At the heart of Scott v. Harris lies the potential for a radical doctrinal reformation: a shift in the core summary judgment standard undertaken to justify a massive expansion of interlocutory appellate jurisdiction in qualified immunity cases. …
Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer
Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer
Faculty Publications
A movement is afoot to revise the longstanding presumption that in civil litigation the producing party bears the cost of production in response to discovery requests. An amendment to Rule 26( c )-which took effect in December 2015-makes explicit courts' authority to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next-an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated by probusiness interest groups and advocates before the Advisory Committee …
The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore
The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore
Faculty Articles
For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common …
Pragmatism Rules, Elizabeth G. Porter
Pragmatism Rules, Elizabeth G. Porter
Articles
The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …
Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.
Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.
Scholarly Works
In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …