Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 13 of 13
Full-Text Articles in Civil Procedure
Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer
Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer
Faculty Publications
On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
Faculty Publications
Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.
This paradox arises at the intersection of three distinct areas of doctrine:
(1) a newly sharpened requirement of concrete injury under Article III that …
Erie’S Suppressed Premise, Michael S. Green
Erie’S Suppressed Premise, Michael S. Green
Faculty Publications
No abstract provided.
The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer
The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer
Faculty Publications
Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …
Comparative Convergences In Pleading Standards, Scott Dodson
Comparative Convergences In Pleading Standards, Scott Dodson
Faculty Publications
Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure's deep and widespread exceptionalism. But this may be changing, at least in certain areas. The American notice pleading standard, for example, which has long been considered exceptional, shows signs of trending toward the fact pleading models of foreign countries. Congressional experimentation with heightened pleading in statutes such as the Private Securities Litigation Reform Act and the Supreme Court's recent pronouncements in Iqbal v. Ashcroft and Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner …
Understanding Pleading Doctrine, A. Benjamin Spencer
Understanding Pleading Doctrine, A. Benjamin Spencer
Faculty Publications
Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …
The Challenge Of Comparative Civil Procedure, Scott Dodson
The Challenge Of Comparative Civil Procedure, Scott Dodson
Faculty Publications
This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.
Pleading Standards After Bell Atlantic Corp. V. Twombly, Scott Dodson
Pleading Standards After Bell Atlantic Corp. V. Twombly, Scott Dodson
Faculty Publications
On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.
The Forum Defendant Rule In Arkansas, Scott Dodson
The Forum Defendant Rule In Arkansas, Scott Dodson
Faculty Publications
Section 1441(b) of the removal statute prohibits removal of a diversity case if a defendant is a citizen of the state in which the case was originally filed. The bar to removal is known as the Forum Defendant Rule. Is removal in violation of the Forum Defendant Rule a jurisdictional or nonjurisdictional defect? The characterization matters because a jurisdictional defect can be raised at any time, while a nonjurisdictional defect must be raised within a specific period of time or is waived. The Supreme Court has not resolved the characterization, but a number of circuit courts, including the Eighth Circuit, …
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Faculty Publications
No abstract provided.
Chapters Of The Civil Jury, Doug R. Rendleman
Chapters Of The Civil Jury, Doug R. Rendleman
Faculty Publications
The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …
Practice And Pleading (15th Annual Survey Of Virginia Law), W. Taylor Reveley Iii
Practice And Pleading (15th Annual Survey Of Virginia Law), W. Taylor Reveley Iii
Faculty Publications
After quickly outlining recent, legislation in the field of practice and pleading, this Article proceeds to a more detailed treatment of pertinent judicial developments. Several of the Supreme Court of Appeals' decisions merit close attention, principally Rakes v. Fulcher and Sullivan v. Little Hunting' Park, Inc. Recurrent in the discussion of the judicial opinions is concern not only with the announced law, but also with the manner of the announcement-concern, that is, with both the legal results and the legal craftsmanship. Organizationally, an attempt has been made to discuss the judicial material at the time of its "moment of truth" …
Robinson's Practice: Book Review Of The Practice Of Law And Equity In Virginia, Lucian Minor
Robinson's Practice: Book Review Of The Practice Of Law And Equity In Virginia, Lucian Minor
Faculty Publications
No abstract provided.