Law Commons^™

A Progress Report In Automatic Disclosure In The Federal Districts, Carl W. Tobias

Law Faculty Publications

In this brief article, Tobias gives an update on a controversial amendment in the Federal Rules of Civil Procedure, which provides for mandatory prediscovery, or automatic, disclosure. This articles serves to update readers on developments and clarifications since the author's previous article on the subject, published half a year earlier.

Elevated Pleading In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark.

The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and …

The Transmittal Letter Translated, Carl W. Tobias

Law Faculty Publications

The letter in which Chief Justice Rehnquist transmitted to Congress amendments to various Federal Rules of Civil Procedure, which became effective on December 1, 1993 is reproduced. Professor Tobias then offers his "translation" of the letter with his interpretation of what likely took place during the rule revision process involving the Advisory Committee on the Civil Rules, emphasizing the controversial revision of F.R.C.P. Rule 11.

Evaluating Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act of 1990 (CJRA) has reached the mid-point of its implementation nationally and in the Montana Federal District Court. At this juncture, one of the most important aspects of statutory effectuation is evaluation of the experimentation that federal district courts have conducted under the legislation. The timing is particularly propitious in the Montana federal district because the court recently completed the annual assessment of statutory implementation that the CJRA requires. These developments in civil justice reform, particularly relating to evaluation of the experimentation which has occurred, warrant examination. This Article undertakes that effort. The Article first …

Recent Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court has continued to experiment with nearly all of the procedures that the court included in the civil justice expense and delay reduction plan which it officially adopted during April 1992 under the Civil Justice Reform Act (CJRA) of 1990. The most important procedures are automatic disclosure, co-equal assignment of cases to Article III judges and magistrate judges located in Billings, and rather close judicial case management. The judicial officers, who include three active and one senior Article III judges and three full-time magistrate judges, and many Montana attorneys who practice in federal court have now …

1993 Federal Rules Amendments And The Montana Civil Rules, Carl W. Tobias

Law Faculty Publications

On December 1, 1993, the most comprehensive package of amendments to the Federal Rules of Civil Procedure (Federal Rules) in their half-century history became effective. Although the revisions include a number of changes that are relatively innocuous, modifications in Rule 11 governing sanctions and Rule 26 requiring mandatory pre-discovery or automatic disclosure were and remain controversial. The amendment to Rule 11 altered the 1983 revision of that Rule which had proved to be the most controversial amendment ever developed. The amendment to Rule 26 prescribing automatic disclosure was the most controversial formal proposal changing the Rules in their history. These …

The 1993 Revision Of Federal Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 revision of Rule 11 of the Federal Rules of Civil Procedure ("Rule 11" or the "Rule") proved to be the most controversial amendment in the long history of the Federal Rules. Many federal judges inconsistently interpreted the provision's language and inconsistently applied the Rule. The 1983 version fostered much costly, unwarranted satellite litigation over its phrasing and the magnitude of sanctions that courts imposed while increasing incivility among lawyers. Rule 11 motions were filed and granted against civil rights plaintiffs more frequently than any other class of litigant, and numerous judges vigorously enforced the provision against the plaintiffs, …

Improving The 1988 And 1990 Judicial Improvements Acts, Carl W. Tobias

Law Faculty Publications

In this article, Professor Tobias analyzes and attempts to harmonize the conflicting frameworks for civil procedure reform embodied in the Civil Justice Reform Act of 1990 (CJRA) and its immediate predecessor, the Judicial Improvements and Access to Justice Act of 1988 (JIA). Congress intended the JIA to open the national and local rulemaking processes to public scrutiny and to decrease the use of local rules. Yet Professor Tobias finds the 1990 Act at odds with the earlier measure in several ways. By encouraging local experiments aimed at reducing litigation costs and delay, he argues, the CJRA shifted the locus of …