Civil Procedure Commons^™

Recent Developments In Federal Jurisdiction And Pleading, Wendy Collins Perdue

Law Faculty Publications

Recent developments in federal jurisdiction and pleading including subject matter jurisdiction, personal jurisdiction and notice, venue, forum non conveniens, forum selection clauses, and pleading.

The Past And Future Of The Federal Rules In State Courts, Carl W. Tobias

Law Faculty Publications

Response to Prof. John B. Oakley's writings comparing state court procedural rules with the Federal Rules of Civil procedure.

Professor Oakley's substantial contribution to the Nevada Law Journal dispute resolution symposium neither accords much treatment to how or why the earlier uniformity between state and federal procedural regimes changed so dramatically over such a brief period nor proffers very many suggestions for the future. My response aspires primarily to scrutinize how federal-state consistency deteriorated and secondarily to consider what, if any, measures should be instituted to change the present condition of state civil procedure in the fifty jurisdictions comprising the …

Local Federal Civil Procedure For The Twenty-First Century, Carl W. Tobias

Law Faculty Publications

Federal civil procedure is now byzantine. Lawyers and parties face, and federal judges apply, a bewildering panorama of requirements. There are strictures in the Federal Rules of Civil Procedure as well as Title 28 of the United States Code and dozens of substantive statutes. A stunning array of local measures-including local rules; general, special, and scheduling orders; individual-judge practices; and mechanisms that courts adopted under the Civil Justice Reform Act (CJRA) of 1990 to reduce cost and delay-also govern cases in all ninety-four districts. Many of the provisions· are inconsistent or duplicative, while a significant percentage are difficult to discover, …

A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias

Law Faculty Publications

The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act …

Erie Railroad V. Tompkins, Wendy Collins Perdue

Law Faculty Publications

Erie Railroad v. Tompkins 304 U.S. 64 (1938), limited the power of federal courts to create judge-made law that would displace state law. Jurists view the Supreme Court's decision both a modern cornerstone of American judicial federalism and an example of legal realism's influence.

The Expiration Of The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

Ever since the United States Congress passed the Civil Justice Reform Act of 1990 (CJRA), a minor mystery of federal court jurisprudence has been whether - and if so, precisely when - that significant and controversial legislation expired. The measure instituted unprecedented nationwide experimentation with procedures that lawmakers intended to decrease cost and delay in civil litigation, but the statute's implementation additionally balkanized federal practice and procedure.

A Modest Reform For Federal Procedural Rulemaking, Carl W. Tobias

Law Faculty Publications

Following the adoption of the amendments to the Federal Rules of Civil Procedure relating to discovery in 2000, Prof. Tobias notes the lack of empirical research or other indication of how the new rules might work in practice preceding their enactment. He suggests that Congress should reconsider a reject 1983 amendment to F.R.C.P. 83 which would authorize courts to obtain Judicial Conference approval to test promising mechanisms for five years before adoption.

The 2000 Federal Civil Rules Revisions, Carl W. Tobias

Law Faculty Publications

During April 2000, the United States Supreme Court prescribed a comparatively thorough set of amendments to the Federal Rules of Civil Procedure. These amendments took effect in December 2000. That development represented the culmination of a rule revision proceeding commenced in 1996 by the Judicial Conference of the United States Advisory Committee on Civil Rules (Advisory Committee). Because certain provisos that the Supreme Court included in the 2000 amendments are rather controversial and could alter significant features of modern federal civil litigation primarily involving discovery, these revisions deserve assessment. This Essay undertakes that effort by emphasizing changes in mandatory prediscovery, …

Congress And The 2000 Federal Civil Rules Amendments, Carl W. Tobias

Law Faculty Publications

In April 2000, the United States Supreme Court promulgated, and Chief Justice William H. Rehnquist transmitted to the United States Congress, a comprehensive package of amendments to the Federal Rules of Civil Procedure. The Judicial Conference of the United States, the policymaking arm of the federal courts, had forwarded these proposals to the Supreme Court in September 1999, and the Justices transmitted the amendments to Congress without making any modifications. The new group of federal rules amendments warrants assessment for two reasons. First, a few provisions in the package of revisions are comparatively controversial and could significantly change important aspects …

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

Fin-De-Siecle Federal Civil Procedure, Carl W. Tobias

Law Faculty Publications

Professor Laurens Walker's The End of the New Deal and the Federal Rules of Civil Procedure, 82 Iowa L. Rev.1269 (1997) (New Deal's End), is a thought-provoking evaluation of the relationship between the New Deal's conclusion and modem civil process. Professor Walker canvasses a series of recent, puzzling changes which "present the most serious challenge to the procedural status quo since the adoption of the original Federal Rules in 1938." The author finds that the New Deal's demise and the rejection of that regime's reliance on experts, policies of centralized federal decisionmaking, and establishment of the national government …

Local Procedural Review In The Eighth Circuit, Carl W. Tobias

Law Faculty Publications

The resolution of substantive disputes is the responsibility that legal scholars, additional federal court observers and the public most closely associate with the United States Courts of Appeals. It is important to remember, however, that circuit judicial councils in each of the courts also discharge significant duties. These obligations are principally administrative, although their comprehensive implementation can be critical to the effective operation of the appellate courts and to the federal district courts within the circuits' purview. The review of local district procedures for consistency and redundancy with the Federal Rules of Civil Procedure and Acts of Congress is one …

Discovery Reform Redux, Carl W. Tobias

Law Faculty Publications

The recent resolve of the Advisory Committee on the Civil Rules to revisit reform of the discovery rules, which the Supreme Court revised as recently as 1993, is replete with ironies. In August, 1998, that Committee, which has primary responsibility for studying the Federal Rules of Civil Procedure and developing suggestions for their improvement, published proposals that would significantly revise the substantial 1993 revisions of the discovery rules. Ironies suffuse many specific aspects of the rule revision process and of the proposals to revise the 1993 revisions less than five years after their implementation. I emphasize the proposal to revise …

Reforming Common Sense Legal Reforms, Carl W. Tobias

Law Faculty Publications

The Contract With America figured prominently in the Republican Party's victories in the 1994 congressional races. During the opening days of the 104th Congress, therefore, approximately one hundred sponsors introduced the Common Sense Legal Refonns Act (CSLRA), which embodied several measures that comprised the Contract's ninth precept. The only constituent of this package of proposals which actually became law was the Private Securities Litigation Refonn Act (PSLRA). Both Houses of Congress did pass products liability reform bills but lacked the requisite votes to override President Bill Clinton's veto. The House of Representatives approved the Attorney Accountability Act (AAA), which would …

Nearing The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuing the series of essays which evaluate and document the phenomenon of federal civil justice reform, this essay initially affords an update on recent developments in civil justice reform at the national level and in the United States District Court for the District of Montana (Montana District). The essay emphasizes the conclusion of two major studies that analyze the national reform effort and the submission to Congress of reports and a recommendation, which were premised substantially on these studies, by the Judicial Conference of the United States. The essay also stresses the completion by the Ninth Circuit District Local …

Civil Justice Reform Sunset, Carl W. Tobias

Law Faculty Publications

This article uses the Civil Justice Reform Act of 1990 (CJRA) as the backdrop for addressing efforts to increase uniformity, simplicity, and transsubstantivity, and to decrease expense and delay in civil litigation. Professor Tobias discusses both the origin and the implementation of the CJRA. By requiring each federal district court to formulate a civil justice expense and delay reduction plan, the purpose of the CJRA is to decrease expense and delay in civil litigation. Professor Tobias argues that the CIRA has been successful because districts have applied techniques that have saved cost and time and have provided new data that …

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJR.lrs gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

The Sources And Scope Of Federal Procedural Common Law: Some Reflections On Erie And Gasperini, Wendy Collins Perdue

Law Faculty Publications

In this Essay I explore what traditional Erie cases would look like if we treated those cases just like classic federal common law cases. I conclude that such an approach is consistent with Erie itself and is also consistent with many of the holdings, if not the language, of traditional Erie cases. This unified approach to substantive and procedural federal common law might have some advantages. In addition to providing conceptual uniformity, this approach would offer an escape from current Erie doctrine, which is confused and unsatisfactory. Under the current doctrine, the Court appears to vacillate between the balancing test …

The Judicial Conference Report And The Conclusion Of Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act (CJRA) of 1990 instituted a nationwide experiment with procedures for decreasing expense and delay in federal civil litigation. Congress required all ninety-four federal district courts to adopt civil justice expense and delay reduction plans and to apply cost and delay reduction measures for at least four years.Congress correspondingly prescribed considerable evaluation of the experimentation which the federal districts undertook. The 1990 legislation mandated that each court annually assess the efficacy of the procedures which the district employed. Moreover, Congress required that an “independent organization with expertise in the area of Federal court management” conduct a …

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Contemplating The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuation of the series of essays analyzing and documenting federal civil justice reform, this essay first provides an update on developments in civil justice reform nationally and in the United States District Court of Montana (Montana District). The essay then stresses the continuing work of the Ninth Circuit District Local Rules Review Committee and additional issues relating to case assignments in the Montana District. Finally, the essay takes a glimpse into the future.

Some Realism About Federal Procedural Reform, Carl W. Tobias

Law Faculty Publications

A New Confederacy? Disunionism in the Federal Courts is a thought-provoking tour de force about many ills that federal court observers believe plague the modem federal district courts. In Disunionism, Professor Paul Carrington paints a perceptive portrait of the troubling conditions that he asserts impede civil litigation in a number of districts, and he trenchantly criticizes district judges for their contributions to these circumstances while admonishing the Judicial Conference to sweep "our national courts clear of all local clutter."

The Federalism Pendulum, Ronald J. Bacigal

Law Faculty Publications

Following Franklin's example, this essay takes a protracted view of the federalization of criminal procedure. It is important to review how the federalism pendulum has swung over the years to reflect concepts of what the Constitution was meant to mean, what it has come to mean, and what it ought to mean.

The Cult Of Finality: Rethinking Collateral Estoppel In The Postmodern Age, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

The Civil Justice Reform Act Amendment Act Of 1995, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Four members of the Senate Judiciary Committee introduced the Civil Justice Reform Act Amendment Act of 1995 on February 23, 1995 as Congress was considering numerous aspects of the Contract With America, most relevantly the legal reforms in its ninth tenet. Senator Orrin Hatch (R-Utah), Chair of the Senate Judiciary Committee, Senator Charles Grassley (RIowa), Chair of the Subcommittee on Courts and Administrative Practice, Senator Joseph Biden (D-Del.), the ranking minority member of the Senate Judiciary Committee, and Senator Howell Heflin (D-Ala.), former Chair of the Courts and Administrative Practice Subcommittee, sponsored the legislation. Passage of the proposal by the …

Continuing Federal Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

I analyzed refinements in the experimentation which the Montana Federal District Court and other districts have conducted under the Civil Justice Reform Act (CJRA) of 1990 and I assessed certain proposed legal reforms which the Republican Party included in its Contract With America in the last issue of the Montana Law Review. I reported that the Montana Federal District Court had prepared a set of local rule changes in light of the 1993 Federal Rules amendments and that the district had formally proposed those modifications for public comment. I also reported that the United States House of Representatives had passed …

Ongoing Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The essay initially provides an update of pertinent developments respecting civil justice reform in the United States and in the Montana Federal District Court. The paper emphasizes the agreement of House and Senate conferees on a products liability reform measure which involves civil justice reform and the work of the Ninth Circuit Local Rules Review Committee. The essay concludes with a brief glance into the future.

Suggestions For Circuit Court Review Of Local Procedures, Carl W. Tobias

Law Faculty Publications

During the 1980s, both the Judicial Conference of the United States, which is the policy-making arm of the federal courts, and Congress evinced increasing concern about the proliferation of local civil procedures, such as local rules and the procedures that individual judges apply The Judicial Conference and Congress were particularly troubled by those local procedural requirements that conflicted with the Federal Rules of Civil Procedure (Federal Rules) or provisions of the United States Code.

In 1986, the Judicial Conference commissioned the Local Rules Project to collect and organize all local rules, standing orders of individual judges, and other local procedural …

Automatic Disclosure And Disuniformity In The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

The 1993 amendment to Federal Rule of Civil Procedure 26(a)(1) imposes automatic disclosure and is the most controversial formal proposal to revise the Federal Rules ever developed. The provision requires litigants to divulge information that is important to their cases before commencing formal discovery. The amendment also permits all ninety-four federal districts to vary the revision or to reject it completely. Moreover, judges and parties in specific cases may modify any disclosure requirements adopted by the districts.

The amendment has remained controversial since it became effective on December 1, 1993. Less than a majority of districts subscribe to the Federal …

Re-Evaluating Federal Civil Justice Reform In Montana,, Carl W. Tobias

Law Faculty Publications

Part I of this piece initially affords an update of relevant developments relating to civil justice reform nationally and in the Montana Federal District Court. It emphasizes the congressional decision to extend the deadlines governing analysis of experimentation in the pilot districts and recent developments that led the Montana district to delay the preparation of a written annual assessment. Part II of this paper then glances into the future.