Civil Procedure Commons^™

The Transformation Of Trans-Substantivitiy, Carl W. Tobias

Law Faculty Publications

Professor Linda Mullenix and Professor Gene Shreve have recently ventilated two intertwined issues at the core of modern federal civil procedure. They questioned scholars' growing criticism of the idea that the Federal Rules of Civil Procedure are trans-substantive. Both writers also asked about the increased emphasis that commentators have accorded procedure's detrimental effects on specific rights, such as civil rights, and on particular groups or litigants, such as minorities. The preferable response to these plaints is a single word: Congress. Because the issues that Professors Mullenix and Shreve raise are thought-provoking, however, they deserve elaboration.

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Rule Revision Roundelay, Carl W. Tobias

Law Faculty Publications

A critique of the proposed revision of F.R.C.P. Rule 11.

The Montana Federal Civil Justice Plan, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court and thirty-three other federal districts recently took steps to qualify as Early Implementation District Courts (EIDC) under the Civil Justice Reform Act of 1990. The Montana District completed the development of its civil justice expense and delay reduction plan, which also includes numerous proposed amendments of the local rules necessary to implement the plan, before the December 31, 1991 statutory deadline. In the last issue of this journal, I analyzed the work that preceded development of the plan. I examined the efforts of the Advisory Group to Implement the Civil Justice Reform Act of 1990 …

Civil Justice Planning In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court recently finalized its civil justice expense and delay reduction plan under the Civil Justice Reform Act (CJRA) of 1990. In April, 1992, the Montana District essentially adopted whole cloth, and made effective, the civil justice plan that it had issued in December, 1991 to qualify for designation as an Early Implementation District Court (EIDC). Relatively few members of the Montana Bar exhibited much interest in the planning effort that preceded promulgation of the civil justice plan. Because the new procedural regime that the Montana District instituted could significantly change the character of federal court practice, …

Legal Lore: Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by pub- lication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. …

Should Montana Adopt A Civil Justice Reform Act?, Carl W. Tobias

Law Faculty Publications

Civil justice reform in the federal government has become highly controversial. Each branch of the federal government apparently is vying to outdo the others in the field of civil justice reform. Congress passed the Civil Justice Reform Act of 1990 (CJRA) to reduce expense and delay in federal civil litigation, and the federal judiciary has been implementing that statute since late 1990. In December, 1991, the Montana Federal District Court became one of thirty-four federal districts which issued civil justice expense and delay reduction plans to qualify for designation as Early Implementation District Courts (EIDC) under the CJRA.

During October, …

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

Amending The Other Party Joinder Amendments, Carl W. Tobias

Law Faculty Publications

Comparatively little controversy attended the semi-annual meeting of the Civil Rules Advisory Committee which was held in late November, 1991. During that meeting, however, the Committee preliminarily considered the prospect of amending Federal Rule of Civil Procedure 23, which governs class actions.

The Advisory Committee is now contemplating possible revision of Rule 23 governing class actions. If that effort proceeds, the Committee should seriously consider reexamining Rules 19 and 24(a)(2), the other two party joinder provisions that were simultaneously changed and integrated with Rule 23 more than a quarter-century ago. This would enable the Committee to propose an integrated package …

Civil Justice Reform Roadmap, Carl W. Tobias

Law Faculty Publications

All three branches of the federal government have instituted initiatives aimed at reducing expense and delay in civil litigation. On October 23, 1991, President Bush issued an Executive Order that imposes a number of requirements on government lawyers who participate in civil litigation. During February 1992, the Administration sponsored introduction of the Access to Justice Act, its legislative proposal for civil justice reform. The bill did not pass, because it included certain provisions that apparently proved unacceptable to many members of the House and Senate.

Regardless of how the controversy over civil justice reform is ultimately resolved, the reform effort …

Certification And Civil Rights, Carl W. Tobias

Law Faculty Publications

In this 1991 article, Carl Tobias responds to Professor Arthur Miller's suggestion that Federal Rule of Civil Procedure 11 should not be prematurely revised.

"Professor Miller's admonitions may convince some observers, especially those authorized to propose revisions in, or to amend, the Rule that there is little wrong with Rule 11's application and that the federal judiciary simply needs a few more years to refine the implementation of this new concept. Numerous problems, however, remain substantial and some may be intrinsic or even irremediable, while certain litigants, especially civil rights plaintiffs, cannot afford to wait. I trust that Professor Miller's …

Rehnquist Or Rorty?, Carl W. Tobias

Law Faculty Publications

A postmodern response to Gene Shreve, Eighteen Feet of Clay: Thoughts on Phantom Rule 4(m), 67 Ind. L.J. 85 (1991).

Personal Jurisdiction And The Beetle In The Box, Wendy Collins Perdue

Law Faculty Publications

In 1980 in World-Wide Volkswagen v. Woodson, the Supreme Court described personal jurisdiction as "an instrument of interstate federalism." Two years later in Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, the Court back-pedaled and explained that personal jurisdiction "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Then, in 1985 in Phillips Petroleum v. Shutts, the Court explained that the purpose of personal jurisdiction is "to protect a defendant from the travail of defending in a distant forum." Three years later in Van Cauwenberghe v. Biard, …

Standing To Intervene, Carl W. Tobias

Law Faculty Publications

The Supreme Court has rarely considered what applicants must show to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) since the Court amended the provision in 1966. This dearth of Supreme Court treatment has meant that primary responsibility for interpreting Rule 24(a)(2) has devolved upon the lower federal courts. Many of these courts and numerous commentators have recognized that it is very difficult to identify precisely what the Rule demands of those that seek to intervene of right. During much of the last quarter century, however, the federal judiciary agreed about one important proposition: Rule 24(a)(2) does …

Judicial Discretion And The 1983 Amendments To The Federal Civil Rules, Carl W. Tobias

Law Faculty Publications

The first section of this Article briefly describes the developments which created the perception that the federal courts were experiencing a litigation explosion and which ultimately led to the promulgation of the 1983 amendments as one response to the perceived explosion. It also examines the substantive content of those changes, especially how the revisions enlarged federal judicial discretion. The second section evaluates the courts' implementation of the 1983 amendments and finds that this application has adversely affected numerous litigants, particularly civil rights plaintiffs, while providing some benefits, namely fostering more expeditious dispute resolution.

The third section provides suggestions for the …

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Recent Work Of The Civil Rules Committee, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Congress reformed the procedures for amending the Federal Rules of Civil Procedure in 1988 by prescribing greater public participation in the rules revision process. Since that time, the Advisory Committee on the Civil Rules, which has primary responsibility for studying the Rules and developing proposals for change in them, has examined several important Rules and made controversial recommendations for modifying those provisions. Although the Committee has assessed and suggested controversial revision in summary judgment and discovery, this article analyzes recent efforts of the Committee involving Rule 11, a provision that was fundamentally amended as recently as 1983.

Montana Rule 11 …

Federal Court Procedural Reform In Montana, Carl W. Tobias

Law Faculty Publications

Much activity related to civil procedure recently occurred that could significantly affect practice in the Montana Federal District Court. During October 1991, the Committee to Redraft the Uniform District Court Rules (Local Rules Committee), which is charged with considering revision of the local rules, issued an Interim Report that includes suggested changes in those rules. The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (Standing Committee) distributed in August 1991 preliminary drafts of proposals to amend in varying degrees eighteen Federal Rules of Civil Procedure. The Advisory Group to Implement the Civil …

Virginia Manuscript Law Reports, William Hamilton Bryson

Law Faculty Publications

Case law, including published cases and cases that have never been published, is the basis of the common law. Professor Bryson discusses the use of manuscript law reports in Virginia during the eighteenth and nineteenth centuries.

Finley V. United States: Unstringing Pendent Jurisdiction, Wendy Collins Perdue

Law Faculty Publications

The approach adopted by the Supreme Court in Finley v. United States calls into question not only pendent-claim jurisdiction but ancillary jurisdiction as well. Particularly vulnerable to attack are those uses of ancillary jurisdiction that involve the addition of new parties such as class action, intervention, and impleader. Furthermore, the opinion may lay a foundation for attacking ancillary-claim jurisdiction involving counterclaims or cross-claims. This commentary will examine Finley and the potential impact of the opinion on the various permutations of ancillary and pendent jurisdiction.

Reassessing Rule 11 And Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules amended Federal Rule of Civil Procedure (Rule 11) in August 1983 because of increasing concern about attorney abuses in civil lawsuits and about the so-called litigation explosion. The revision commands courts to sanction lawyers and parties who do not undertake reasonable prefiling inquiries. Certain aspects of the new version's implementation provoked substantial controversy which continued virtually undiminished from the amendment's August 1983 effective date at least until the fifth anniversary of its adoption. Perhaps most controversial was the question whether courts' application inhibited the pursuit of legitimate litigation, especially cases involving civil rights …

An Independent Public Law, Carl W. Tobias

Law Faculty Publications

This Article analyzes the application of numerous Federal Rules in public law litigation to show how the resurrection of private law approaches and hostility toward public interest litigants serves to disadvantage public interest litigants. The assessment is intended to discourage such future enforcement of the Federal Rules and analogous judicial treatment in other areas of public law. The Article is also meant to foster greater appreciation of public law and the articulation of a larger complement of public law principles so as to facilitate the growth of an independent public law.

Intervention After Webster, Carl W. Tobias

Law Faculty Publications

Webster v. Reproductive Health Services throws down the gauntlet on the "most politically divisive domestic legal issue of our time," imperiling women's progress in securing reproductive freedom and power in society. The battle over abortion rights is likely to splinter an already deeply divided country. After fierce fighting in many statehouses, some legislatures will pass statutes further restricting abortion. The major battleground, however, will quickly shift to the federal courts, where plaintiffs seeking to protect procreative freedom will challenge these measures. Judges, parties, and lawyers participating in this litigation will rigorously analyze the issues of "substance" that Webster and the …

Rule 11 And Civil Rights Litigation, Carl W. Tobias

Law Faculty Publications

The recent amendment of rule 11 may well have engendered more controversy than any other revision since the Federal Rules of Civil Procedure were first promulgated one-half century ago. The new version essentially requires that judges impose sanctions on lawyers and parties who fail to conduct reasonable inquiries before filing court papers. The amendment's adoption was prompted by increasing concern about abuse of the litigation process and about the "litigation explosion" -the perception that unprecedented numbers of civil cases were being filed and that too many lacked merit. Proponents have hailed the revised rule as the savior of the civil …

Public Law Litigation And The Federal Rules Of Civil Procedure, Carl W. Tobias

Law Faculty Publications

The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in …

Annual Survey Of Virginia Law - Civil Procedure And Practice, William Hamilton Bryson

Law Faculty Publications

Rules 2:41 and 3:3(c) of the Rules of Virginia Supreme Court ("Rules of Court") require the dismissal of an action if service of process is not accomplished within one year after the filing thereof unless the plaintiff can show "due diligence" or good cause for the delay. 3 Since the plaintiff can get personal service on a defendant who has absconded by means of the general long arm statute,4 it will be a heavy burden in practice to show due diligence or good cause or it will be a highly unusual situation. Recently, two issues have arisen regarding these rules.

Court Costs In Virginia, William Hamilton Bryson

Law Faculty Publications

Costs are certain official expenses of litigation that the court orders the losing party to pay to the prevailing party. They are not a part of the judgment but are appurtenant to it.

Sin, Scandal And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue

Law Faculty Publications

Professor Perdue recounts the underlying story of the U.S. Supreme Court's seminal personal jurisdiction case, Pennoyer v. Neff.

Rule 19 And The Public Rights Exception To Party Joinder, Carl W. Tobias

Law Faculty Publications

The increasing number of "public interest" lawsuits suggests that federal courts increasingly will confront difficult party joinder questions posed by such litigation. These problems arise because entities not involved in the litigation may have interests that may be adversely affected by the litigation. The joinder issue presented by such cases is whether rule 19 of the Federal Rules of Civil Procedure requires that the suit be dismissed or whether the litigation can continue without joinder of the absent entities. Numerous courts have dealt with the question by creating a 'public rights exception," which permits the litigation to continue even without …