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Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …
Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
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The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin
Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin
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In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …
Pleading And The Dilemmas Of “General Rules”, Stephen B. Burbank
Pleading And The Dilemmas Of “General Rules”, Stephen B. Burbank
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This article comments on Professor Geoffrey Miller’s article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act’s requirement of “general rules,” and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts the foundational …