Civil Procedure Commons^™

Transferred Justice: An Empirical Account Of Federal Transfers In The Wake Of Atlantic Marine, Roger Michalski

Faculty Articles

This Article presents empirical findings on motions to transfer in the wake of the Supreme Court's decision in Atlantic Marine Construction Co. Inc. v. United States District Court for the Western District of Texas. Based on an original dataset of roughly 15,500 federal transfers over three years, it traces the evolving patterns of interdistrict transfers and how doctrinal changes affect the flow of cases between districts. These patterns suggest both beneficial and troubling aspects of the federal transfer system. On the beneficial side, transfers do important work in regulating and directing the massive flow of prisoners' rights and habeas corpus …

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter

Faculty Articles

No abstract provided.

The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in …

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

Faculty Articles

For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common …

Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Articles

This Article proceeds as follows: Part II locates MDJD suits within the broader context of the IP troll debate. It explains why attempts to define copyright trolls in terms of status—i.e., in terms of the plaintiff’s relationship to the underlying IP—are ultimately flawed and suggests a conduct-focused approach based on identifying systematic opportunism. Part II explains why MDJD lawsuits have all of the hallmarks of copyright trolling, and it explores the basic economics of MDJD litigation. It then presents empirical data documenting the astonishing rise of MDJD lawsuits over the past decade. Part III explores the role of statutory damages …

Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter

Faculty Articles

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a …

Civil-Izing Federalism, Brooke Coleman

Faculty Articles

When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the …

The Efficiency Norm, Brooke Coleman

Faculty Articles

Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that …

Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman

Faculty Articles

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change …

Trans-Personal Procedures, Roger Michalski

Faculty Articles

Recent court decisions have reignited a national debate about corporate personhood. This debate recognizes that the legal status of artificial persons is of great importance to the fabric of society, law, and politics. Questions about the status of artificial persons are typically raised in the context of substantive law, where corporate personhood has triggered strong reactions and important scholarship. But there is another, completely neglected side to this debate. The status of artificial entities is not solely negotiated in the context of substantive law. Procedure, similarly, must also choose whether to treat natural and artificial entities alike or not. This …

This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi

Faculty Articles

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This article suggests that may not always be true. This article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

The Reappearing Judge, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler

Faculty Articles

No abstract provided.

The Continuing Gloom About Federal Judicial Rulemaking, Richard D. Freer

Faculty Articles

In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in “crisis” and its fans are experiencing “malaise.” This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew B. Lawrence

Faculty Articles

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

Rights Come With Responsibilities: Personal Jurisdiction And Corporate Personhood, Roger Michalski

Faculty Articles

No abstract provided.

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Faculty Articles

No abstract provided.

Remodeling The Multi-Door Courthouse To "Fit The Forum To The Folks": How Screening And Preparation Will Enhance Adr, Tim Hedeen

Faculty Articles

The article offers information on remodeling of multi-door courthouse to enhance Alternative Dispute Resolution (ADR) efficiency. It informs that symposium, The Future of Court ADR: Mediation and Beyond that was held in September 2011 featured scholars and practitioners to discuss the past and future of ADR. It informs that research and practice in mediation have deepened the understanding in engaging with prospective clients.

Managing Summary Judgment, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong

Faculty Articles

The United States has long embraced the concept of regulatory litigation, whereby individual litigants, often termed “private attorneys general,” are allowed to enforce certain public laws as a matter of institutional design. Although several types of regulatory litigation exist, the U.S. class action is often considered the paradigmatic model for this type of private regulation.

For years, the United States appeared to be the sole proponent of both regulatory litigation and large-scale litigation. However, in February 2012, the European Union dramatically reversed its existing policies toward mass claims resolution when the European Parliament adopted a resolution proposing to create a …

What If?: A Study Of Seminal Cases As If Decided In A Twombly/Iqbal Regime, Brooke D. Coleman

Faculty Articles

What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going …

Don't Just Do Something!: E-Hearsay, The Present Sense Impression, And The Case For Caution In The Rulemaking Process, Liesa L. Richter

Faculty Articles

No abstract provided.

Special Rules For Social Media Discovery?, Steven S. Gensler

Faculty Articles

No abstract provided.

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Faculty Articles

Every year in Professor Brooke Coleman’s 1L Civil Procedure course, she introduces the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. However, every year when Professor Coleman teaches it, she finds herself rejecting the case and its approach even more. In short, …

Summary Judgment: What We Think We Know Versus What We Ought To Know, Brooke D. Coleman

Faculty Articles

The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to …

The Vanishing Plaintiff, Brooke D. Coleman

Faculty Articles

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Articles

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

Pleading And Proving Foreign Law In The Age Of Plausibility Pleading, Roger Michalski

Faculty Articles

No abstract provided.

Tremors Of Things To Come: The Great Split Between Federal And State Pleading Standards, Roger Michalski

Faculty Articles

No abstract provided.