Law Commons^™

Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer

Faculty Publications

Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …

The Twin Aims Of Erie, Michael S. Green

Faculty Publications

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Faculty Publications

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class. " Although this "commonality" requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23 's commonality requirement unsupported by the text of …

The Global Chase: Seeking The Recognition And Enforcement Of The Lago Agrio Judgment Outside Of Ecuador, Manuel A. Gómez

Faculty Publications

No abstract provided.

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman

Faculty Publications

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and …

Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis

Faculty Publications

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determine[in] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …

The Cplr At Fifty: A View From Academia, Vincent C. Alexander

Faculty Publications

(Excerpt)

First and foremost, teaching students in an advanced civil procedure course that concentrates on the CPLR helps them prepare for civil litigation in all of the state courts of New York. As we all know, New York has numerous civil courts of original subject matter jurisdiction--a distressing feature for students and litigants alike. What is sometimes overlooked, however, is that the CPLR governs the procedure in all of those courts unless some specific statute says otherwise. Even for students who intend to practice law in other states, an in-depth study of the CPLR will enhance their ability to cope …