Civil Procedure Commons^™

Justice Souter And The Civil Rules, Scott Dodson

Faculty Publications

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. And what it finds is a justice deeply committed to the fair treatment of the litigants …

The Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin J. Effron

William & Mary Law Review

Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic Corp. v. Twombly introduced the concept of “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases. The Article argues that it is unacceptable to automatically equate the existence of a class …

Federal Pleading And State Presuit Discovery, Scott Dodson

Faculty Publications

This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal - when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results …

Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer

Faculty Publications

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal 's factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits …

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Subverting Rule 56? Mcdonnell Douglas, White V. Baxter Healthcare Corp., And The Mess Of Summary Judgement In Mixed-Motive Cases, Christopher J. Emden

William & Mary Business Law Review

No abstract provided.

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Faculty Publications

Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …

Comparative Convergences In Pleading Standards, Scott Dodson

Faculty Publications

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 pronouncements in Iqbal v. Ashcroft and Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner …

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Faculty Publications

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states.T his limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Standing Still In The Roberts Court, Jonathan H. Adler

Faculty Publications

In 2007, The New York Times reported "limiting the ability of plaintiffs to bring or appeal lawsuits" had emerged as an early "theme" of the Roberts Court. The Wall Street Journal concurred, reporting "the biggest change under Chief Justice Roberts might not involve who wins on the merits" but "who gets through the courthouse door in the first place." An early consensus is emerging... that one effect of the Roberts Court is to make it more difficult for prospective plaintiffs to have their day in federal court.

Because standing decisions are more insulated from legislative revision than other sorts of …

Creeping By Moonlight: A Look At Civil Commitment Laws For Sexually Violent Predators Through The Lens Of The Yellow Wallpaper, Heather R. Willis

William & Mary Journal of Race, Gender, and Social Justice

This note examines the constitutional and social implications of the civil commitment of sexually violent predators in the United States. These commitments are implemented on sexual offenders deemed too dangerous to be placed back into society after serving prison sentences and have been gaining popularity across the United States. Currently, these commitments are considered constitutional in limited circumstances by the Supreme Court, but while these commitments are meant for only the most dangerous and least controllable individuals, the public reaction to sexual offenses increases the possibility these commitments will be misused. As a part of examining this commitment process, this …

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

Mandatory Rules, Scott Dodson

Faculty Publications

Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …

The Importance Of E-Discovery, Scott Dodson

Faculty Publications

This short essay explores the increasing importance of e-discovery to litigants in both federal and state courts in Arkansas.

Plausibility Pleading, A. Benjamin Spencer

Faculty Publications

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a) (2), which requires a "short and plain" statement of a plaintiffs claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the …

God, Gaia, The Taxpayer, And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court considered standing in two high-profile cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. Both were 5-4 decisions in which the Court decided along traditional, ideological lines, and both decisions may provide an indication of the future direction of the Supreme Court.

In Hein, a five-Justice majority denied taxpayer standing to challenge the Bush Administration's so-called "faith-based initiatives" as a violation of the First Amendment's Establishment Clause. In Massachusetts, the Court broke new ground as it took several steps in a decidedly "liberal" direction. The five Justice …

In Search Of Removal Jurisdiction, Scott Dodson

Faculty Publications

The ubiquitous and somewhat careless use of the term “jurisdictional” by courts has spawned confusion over what is and is not jurisdictional in a variety of contexts, including removal. The issue has critical implications for litigants. Yet it lacks scholarly coverage and is the subject of deep divisions in the lower courts. In this article, I develop an initial framework for tackling the jurisdictional/procedural characterization issues of the removal statute. I build upon the groundwork laid by prior precedent and modify it to account for the quasi-jurisdictional nature of removal and its impact on the federal-state balance of power. I …

The Challenge Of Comparative Civil Procedure, Scott Dodson

Faculty Publications

This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

The Forum Defendant Rule In Arkansas, Scott Dodson

Faculty Publications

Section 1441(b) of the removal statute prohibits removal of a diversity case if a defendant is a citizen of the state in which the case was originally filed. The bar to removal is known as the Forum Defendant Rule. Is removal in violation of the Forum Defendant Rule a jurisdictional or nonjurisdictional defect? The characterization matters because a jurisdictional defect can be raised at any time, while a nonjurisdictional defect must be raised within a specific period of time or is waived. The Supreme Court has not resolved the characterization, but a number of circuit courts, including the Eighth Circuit, …

Pleading Standards After Bell Atlantic Corp. V. Twombly, Scott Dodson

Faculty Publications

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.

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Subclassing, Scott Dodson

Faculty Publications

This Article is the first to take a hard look at Federal Rule of Civil Procedure 23(c)(4)(B), an oft-slighted part of the class action scheme that permits a court to create subclasses "when appropriate." Despite its tautologically unhelpful text, no other court or commentator has undertaken a comprehensive analysis of this provision. The time to do so is certainly now. As class actions grow bigger, plaintiffs seek new ways to meet Rule 23 "s certification requirements. Just in the last few years, plaintiffs have turned to subclassing's sister provision, Rule 23(c)(4)(A), which has consequently received a flurry of commentary from …

The Dubious Origins And Dangers Of Clawback And Quick-Peek Agreements: An Argument Against Their Codification In The Federal Rules Of Civil Procedure, Laura Catherine Daniel

William & Mary Law Review

No abstract provided.

Trial Trends And Implications For The Civil Justice System, Paula Hannaford-Agor, Robert C. Lafountain, Shauna Strickland

Faculty Publications

Bench and jury trials have been declining steadily for the past twenty years, both in absolute numbers and as a proportion of civil dispositions. This “vanishing trial” phenomenon was long suspected by many within the state court system, but has only recently been empirically confirmed. This issue of Caseload Highlights focuses on trends in civil trial characteristics and discusses possible causes of these trends and their implications for practitioners and policy-makers in state courts.

This abstract has been taken from the body of the report.

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Forcing The Issue: Activist Veterinarian Seeks Rights For Arrestees As Well As Animals, Kathryn R. Urbonya

Popular Media

No abstract provided.

The Transformation Of The American Civil Trial: The Silent Judge, Renée Lettow Lerner

William & Mary Law Review

No abstract provided.