Law Commons^™

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder

Fordham Journal of Corporate & Financial Law

Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …

Bringing "Civil"Ity Into Immigration Law: Using The Federal Rules Of Civil Procedure To Fix Immigration Adjudication, Richard Frankel -- Professor Of Law

Vanderbilt Law Review

Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings.

In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the …

Entombed Writs' Effective Renaissance: Surveying And Sealing Federal Rule Of Civil Procedure 60(B)'S Interpretive Gaps, Amir Shachmurove

Cleveland State Law Review

For centuries, the hoary principle of finality and the Latin-denominated writs devised so as to mollify its obduracy cast fearsome shadows, unchallenged within the courts of the British Isles. In the United States, these expatiated doctrines stalked with equal aplomb from the time of Chief Justice John James Marshall to the advent of the Federal Rules of Civil Procedure. For nearly 150 years, therefore, federal procedural law recognized only the skimpiest opportunities for renewed introspection afforded by these increasingly anachronistic constructs, ones nonetheless imbued with more and more of antiquity’s nearly sacerdotal sheen with each passing year.

In time, as …

Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer

Faculty Publications

On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …

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 …

The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm

Catholic University Law Review

Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …

The Shifting Sands Of Cost Shifting, Andrew M. Pardieck

Cleveland State Law Review

The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery …

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a …

Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly …

Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll

Book Chapters

According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …

The Parable Of The Forms, Samuel L. Bray

St. John's Law Review

(Excerpt)

It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form.

So, too, it might be good to have different forms of action. That way, everyone knows upfront …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …

The Federal Courts’ Rulemaking Buffer, Jordan M. Singer

William & Mary Law Review

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Pleading Conditions Of The Mind Under Rule 9(B): Repairing The Damage Wrought By Iqbal, A. Benjamin Spencer

Faculty Publications

In 2009, the Supreme Court decided Ashcroft v. Iqbal, in which it pronounced-among other things- that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure-which permits allegations of malice, intent, knowledge, and other conditions of the mind to be alleged "generally" -requires adherence to the plausibility pleading· standard it had devised for Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. That is, to plead such allegations sufficiently, one must offer sufficient facts to render the condition-of-the-mind allegation plausible. This rewriting of the standard imposed by Rule 9(b)'s second sentence-which came only veritable moments after the Court …

Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas

All Faculty Scholarship

In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this Article, we empirically assess the response of plaintiffs’ attorneys to these developments. Specifically, we document a troubling trend—the flight of merger litigation to federal court where these cases are overwhelmingly resolved through voluntary dismissals that provide no benefit to the plaintiff class but generate a payment to plaintiffs’ counsel in the form of a mootness fee. In 2018, for example, 77% of deals with litigation were …

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

Northwestern University Law Review

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Nancy Welsh

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact …

Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini

Akron Law Review

In June 2016 the Supreme Court ruled in Dietz v. Bouldin that federal judges in civil cases could, in order to amend a flawed verdict, reuse a jury that was discharged and long gone. Under this ruling, by the time the court or the attorneys recognize the inconsistent ruling, the jury could and likely will have been profoundly prejudiced, therefore violating the claimant’s right to a fair trial afforded to him by our democratic system of justice. The prejudice test implemented by the Court in Dietz is not detailed enough to tighten the reins on judicial discretion and ensure that …

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.