Law Commons^™

Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano

Indiana Law Journal

Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …

Enforcing Outbound Forum Selection Clauses In State Court, John Coyle, Katherine Robinson

Indiana Law Journal

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap. …

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 …

Rethinking Standards Of Appellate Review, Adam Steinman

Indiana Law Journal

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Indiana Law Journal

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a …

A Welfarist Perspective On Lies, Ariel Porat, Omri Yadlin

Indiana Law Journal

Should a Muslim employee who, in order to avoid discrimination, falsely stated in his job interview that he is Christian be fired for his dishonesty? Should a buyer of a tract of land who, before contracting, conducted an expensive investigation that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land’s mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead …

Commonality And The Constitution: A Framework For Federal And State Court Class Actions, Joseph A. Seiner

Indiana Law Journal

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. …

Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger

Indiana Law Journal

The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

1367 And All That: Recodifying Federal Supplemental Jurisdiction, Thomas D. Rowe Jr.

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

The Forgotten Proviso Of § 1367(B) (And Why We Forgot), Peter Raven-Hansen

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Supplemental Jurisdiction: A Confession, An Avoidance, And A Proposal, David L. Shapiro

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Comment On The Supplemental- Jurisdiction Statute: 28 U.S.C. § 1367, Arthur D. Wolf

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Making Sense Of Nonsense: Reforming Supplemental Jurisdiction, Graham C. Lilly

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Teaching Supplemental Jurisdiction, Stephen C. Yeazell

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Crosscurrents: Supplemental Jurisdiction, Removal, And The Ali Revision Project, Joan Steinman

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Revisiting The Policy Case For Supplemental Jurisdiction, Robert G. Bone

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

"Common Nucleus Of Operative Fact" And Defensive Set-Off: Beyond The Gibbs Test, William A. Fletcher

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Integrating Supplemental Jurisdiction And Diversity Jurisdiction: A Progress Report On The Work Of The American Law Institute, John B. Oakley

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Toward A Principled Statutory Approach To Supplemental Jurisdiction In Diversity Of Citizenship Cases, Richard D. Freer

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

An Alternative And Discretionary § 1367, Edward H. Cooper

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Supplemental Jurisdiction-Take It To The Limit!, Howard P. Fink

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Introduction (A Reappraisal Of The Supplemental-Jurisdiction Statute: Title 28 U.S.C Sec. 1387, Symposium), Gene R. Shreve

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C sec. 1387.

Mandatory Disclosure Can Improve The Discovery System, Angela R. Lang

Indiana Law Journal

No abstract provided.

Civil Contempt And The Rational Contemnor, Linda S. Beres

Indiana Law Journal

No abstract provided.

The 1993 Revision Of Federal Rule 11, Carl Tobias

Indiana Law Journal

No abstract provided.

Private Justice And The Federal Bench, Lauren K. Robel

Indiana Law Journal

No abstract provided.

The Heileman Power: Well-Honed Tool Or Blunt Instrument?, Thomas A. Tozer

Indiana Law Journal

No abstract provided.