Law Commons^™

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

Northwestern University Law Review

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. …

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

Nancy Welsh

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 …

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact …

Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini

Akron Law Review

In June 2016 the Supreme Court ruled in Dietz v. Bouldin that federal judges in civil cases could, in order to amend a flawed verdict, reuse a jury that was discharged and long gone. Under this ruling, by the time the court or the attorneys recognize the inconsistent ruling, the jury could and likely will have been profoundly prejudiced, therefore violating the claimant’s right to a fair trial afforded to him by our democratic system of justice. The prejudice test implemented by the Court in Dietz is not detailed enough to tighten the reins on judicial discretion and ensure that …

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

How To Fill A Procedural Loophole: Re-Evaluating The Ragan And Walker Analysis In Light Of Federal Rule Of Civil Procedure 4(M), Holly M. Boggs

Georgia Law Review

Legislatures implement statutes of limitations to
protect defendants from being brought into lawsuits for
incidents long past. However, a proceduralloophole in
the Georgiafederal court system could permit plaintiffs
to disregardstatutes of limitations and wait as long as
they please to notify a defendant of a pending claim.
The loophole exists because federal courts in Georgia
must defer to state law governing the tolling of statutes
of limitations, and that state law is procedurally
incompatible with the federal court's system. In order
to fill the procedural loophole, this Note argues that the
Eleventh Circuit should apply the federal rule-rather
than Georgia's …

Bespoke Discovery, Jessica Erickson

Law Faculty Publications

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …