Law Commons^™

Certification And Civil Rights, Carl W. Tobias

Law Faculty Publications

In this 1991 article, Carl Tobias responds to Professor Arthur Miller's suggestion that Federal Rule of Civil Procedure 11 should not be prematurely revised.

"Professor Miller's admonitions may convince some observers, especially those authorized to propose revisions in, or to amend, the Rule that there is little wrong with Rule 11's application and that the federal judiciary simply needs a few more years to refine the implementation of this new concept. Numerous problems, however, remain substantial and some may be intrinsic or even irremediable, while certain litigants, especially civil rights plaintiffs, cannot afford to wait. I trust that Professor Miller's …

Federal Court Procedural Reform In Montana, Carl W. Tobias

Law Faculty Publications

Much activity related to civil procedure recently occurred that could significantly affect practice in the Montana Federal District Court. During October 1991, the Committee to Redraft the Uniform District Court Rules (Local Rules Committee), which is charged with considering revision of the local rules, issued an Interim Report that includes suggested changes in those rules. The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (Standing Committee) distributed in August 1991 preliminary drafts of proposals to amend in varying degrees eighteen Federal Rules of Civil Procedure. The Advisory Group to Implement the Civil …

Personal Jurisdiction And The Beetle In The Box, Wendy Collins Perdue

Law Faculty Publications

In 1980 in World-Wide Volkswagen v. Woodson, the Supreme Court described personal jurisdiction as "an instrument of interstate federalism." Two years later in Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, the Court back-pedaled and explained that personal jurisdiction "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Then, in 1985 in Phillips Petroleum v. Shutts, the Court explained that the purpose of personal jurisdiction is "to protect a defendant from the travail of defending in a distant forum." Three years later in Van Cauwenberghe v. Biard, …

Standing To Intervene, Carl W. Tobias

Law Faculty Publications

The Supreme Court has rarely considered what applicants must show to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) since the Court amended the provision in 1966. This dearth of Supreme Court treatment has meant that primary responsibility for interpreting Rule 24(a)(2) has devolved upon the lower federal courts. Many of these courts and numerous commentators have recognized that it is very difficult to identify precisely what the Rule demands of those that seek to intervene of right. During much of the last quarter century, however, the federal judiciary agreed about one important proposition: Rule 24(a)(2) does …

Judicial Discretion And The 1983 Amendments To The Federal Civil Rules, Carl W. Tobias

Law Faculty Publications

The first section of this Article briefly describes the developments which created the perception that the federal courts were experiencing a litigation explosion and which ultimately led to the promulgation of the 1983 amendments as one response to the perceived explosion. It also examines the substantive content of those changes, especially how the revisions enlarged federal judicial discretion. The second section evaluates the courts' implementation of the 1983 amendments and finds that this application has adversely affected numerous litigants, particularly civil rights plaintiffs, while providing some benefits, namely fostering more expeditious dispute resolution.

The third section provides suggestions for the …

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Recent Work Of The Civil Rules Committee, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Congress reformed the procedures for amending the Federal Rules of Civil Procedure in 1988 by prescribing greater public participation in the rules revision process. Since that time, the Advisory Committee on the Civil Rules, which has primary responsibility for studying the Rules and developing proposals for change in them, has examined several important Rules and made controversial recommendations for modifying those provisions. Although the Committee has assessed and suggested controversial revision in summary judgment and discovery, this article analyzes recent efforts of the Committee involving Rule 11, a provision that was fundamentally amended as recently as 1983.

Montana Rule 11 …

Rehnquist Or Rorty?, Carl W. Tobias

Law Faculty Publications

A postmodern response to Gene Shreve, Eighteen Feet of Clay: Thoughts on Phantom Rule 4(m), 67 Ind. L.J. 85 (1991).