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 …

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 …

Parsing Judicial Activism, Scott Dodson

Scott Dodson

This microsymposium contribution responds to Suzanna Sherry's paper "Why We Need More Judicial Activism" and offers a heuristic--what I call libertarian activism--for distinguishing activism that reduces governmental power from activism that enhances governmental power.

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.

Hybridizing Jurisdiction, Scott Dodson

Scott Dodson

Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson

Scott Dodson

No abstract provided.

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

Scott Dodson

No abstract provided.

Justice Souter And The Civil Rules, Scott Dodson

Scott Dodson

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. This short essay therefore analyzes a unique set of opinions—those that he authored on the federal …

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 …

Book Review: A History Of The Eighth Circuit, Scott Dodson

Scott Dodson

This is a book review of Jeffrey Brandon Morris's "Establishing Justice in Middle America: A History of the Eighth Circuit" (U. Minn. Press 2008).