Civil Procedure Commons^™

Is The Contempt Power Obsolete?, Nino C. Monea

Dickinson Law Review (2017-Present)

Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion …

Civil Procedure And The New Bar Exam, Jeffrey A. Parness

University of Colorado Law Review Forum

No abstract provided.

Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson

Catholic University Journal of Law and Technology

No abstract provided.

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Self-Intervention, Lumen N. Mulligan

University of Colorado Law Review

You cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state's sovereign interest, to intervene when the attorney general is already representing the state's sovereign interest. In this Article, I contend that the text, history, and practice of Rule 24(a)(2) prohibit such "self-intervention." I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties in interest. I further conclude that …

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …

Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …

Constitutional Standoff: An Example Of Practical Difficulty In Mississippi Venue Rules, Hunter C. Ransom

Mississippi College Law Review

Mississippi’s legislature and judiciary have been locked in a constitutional standoff over procedural rulemaking power for decades. In an article describing the history of the conflict, author William H. Page has predicted that the situation will inevitably lead to “practical difficulties” down the road. Years later, given ongoing conflicts among various aspects of civil procedure in Mississippi, that prediction is beginning to appear prescient. A prime example has developed in Mississippi’s venue rules.

This Comment has three goals. First, it seeks to resurface Page’s discussion of the “constitutional standoff.”3 Second, it describes how Page was likely correct in predicting that …

For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.

UNH Sports Law Review

No abstract provided.

Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel

Brigham Young University Prelaw Review

Diversity jurisdiction authorizes federal courts to act as impartial tribunals over certain matters of state law. To preserve states' judicial sovereignty, the US Supreme Court has prohibited diversity courts from directly interpreting state law, holding that federal courts must "predict" the legal outcome as if a state court had adjudicated. However, litigant abuse hinders consistency in legal outcomes. Discrepancies between courts spur forum shopping, which cyclically generates more legal incongruence. This paper identifies a "toxic cycle" plaguing diversity jurisdiction and offers five prescriptions which courts and Congress must use to reverse it.

Rethinking The Process Of Service Of Process, Mary K. Bonilla

St. Mary's Law Journal

Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

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 …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman

William & Mary Law Review Online

Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …

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 …

An Appellate Solution To Nationwide Injunctions, Sam Heavenrich

Indiana Law Journal

District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them …

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

Scholarly Works

No abstract provided.

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

Touro Law Review

No abstract provided.

Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese

Alan J. Meese

No abstract provided.

Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Responding To The Loss Of An En Banc Quorum (Update: Prawfsblawg Gets Results!?), Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Did The Supreme Court Recently Exercise A Power That Had Lain Dormant For Decades?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T'S Long Game On Unconscionability, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.

The Haves Of Procedure, Ion Meyn

William & Mary Law Review

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …