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.

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 …

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 …

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 …

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 …

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 …

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.

The Inextricable Merits Problem In Personal Jurisdiction, Cassandra Burke Robertson

Faculty Publications

In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in …

Twombly’S Seismic Disturbances, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), has had a seismic impact on federal civil litigation. We all thought the notice pleading concept introduced un­der the Federal Rules of Civil Procedure had substantially eased the plaintiff's burden at the pleading stage. The Supreme Court in Twombly said "yes, but," and emphasized that notice pleading was never intended to dispense entirely with the need to plead facts demonstrating a right to relief. In short, facts matter: Rule 8 of the Federal Rules of Civil Procedure requires a statement of circumstances, events, and …

Rethinking Extraordinary Circumstances, Scott Dodson

Faculty Publications

This short essay for Northwestern University Law Review's Colloquy seeks to rationalize the "extraordinary circumstances" doctrine of Rue 60(b)(6) of the Federal Rules of Civil Procedure. The usual rule is that a movant for Rule 60(b)(6) relief must show extraordinary circumstances for that relief. Under the Ackermann rule (so named after the Supreme Court decision that spawned it), courts have held that any extraordinary circumstances cannot have been caused by the movant's own litigation conduct. I argue that the Ackermann rule, at its broadest, would be unjust to those litigants most in need of Rule 60(b)(6) relief and would overserve …

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Faculty Publications

Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Faculty Publications

The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC, Judge Shira A. Scheindlin-of the Zubulake v. UBS Warburg LLC2 e-discovery casespenned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches …

Global Civil Procedure Trends In The Twenty-First Century, Scott Dodson

Faculty Publications

Recent scholarship in comparative civil procedure has identified
“American exceptionalism” as a way to describe practices which set the
United States apart from most of the world, particularly the civil law world.
This Article focuses on two areas of “exceptionalism”: pleading standards
and the role of judges. Specifically, pleading requirements are considerably
less strict in the United States compared to other countries. Additionally,
U.S. judges are less active in conducting litigation than their counterparts
elsewhere, especially judges in the civil law tradition. This Article traces
some modern trends toward convergence between the United States and
the rest of the world. …

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

Erie’S Suppressed Premise, Michael S. Green

Faculty Publications

No abstract provided.

Making Sense Of Twombly, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In May 2007, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Reversing the Second Circuit, the Court held that an antitrust complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray averments of agreement that amounted merely to legal conclusions, failed as a matter of law to state a claim for conspiracy in violation of § 1 of the Sherman Act and had been properly dismissed by the trial court. The Court then proceeded to (1) redefine the concept of notice pleading by "retiring" …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Faculty Publications

Culturally based litigation practices are central to the policies of federal courts. Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts. These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts. This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure. The author proposes that rulemaking must compliment cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, …

Justice Souter And The Civil Rules, Scott Dodson

Faculty Publications

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. And what it finds is a justice deeply committed to the fair treatment of the litigants …

A Sense Of Disentitlement: Frame-Shifting And Metaphor In Ashcroft V. Iqbal, Lisa A. Eichhorn

Faculty Publications

No abstract provided.

Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer

Faculty Publications

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal 's factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits …

Federal Pleading And State Presuit Discovery, Scott Dodson

Faculty Publications

This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal - when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results …

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

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 …

Civil Rights And Federal Courts: Creating A Two-Course Sequence, Howard M. Wasserman

Faculty Publications

No abstract provided.

Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman

Faculty Publications

Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a "mismatch " between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S. C. §S 1983 and Bivens, …