Law Commons^™

Atlantic Marine And The Future Of Party Preference, Scott Dodson

Scott Dodson

In Atlantic Marine, the U.S. Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. This paper is derived from my presentation at the symposium on Atlantic Marine held at UC Hastings College of the Law on September 19, 2014. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for …

Pleading And The Litigation Marketplace, Scott Dodson

Scott Dodson

In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.

Party Subordinance In Federal Litigation, Scott Dodson

Scott Dodson

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my …

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.

Rethinking Extraordinary Circumstances, Scott Dodson

Scott Dodson

The Complexity Of Jurisdictional Clarity, Scott Dodson

Scott Dodson

O'Connell V. Chapman Univ., No. 10-810, Scott Dodson

Scott Dodson

No abstract provided.

New Pleading, New Discovery, Scott Dodson

Scott Dodson

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

Comparative Convergences In Pleading Standards, Scott Dodson

Scott Dodson

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 pronouncement in Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner and towards a regime …

Pleading Standards After Bell Atlantic V. Twombly, Scott Dodson

Scott Dodson

On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.