Civil Procedure Commons^™

Open And Shut: Non-Removal Statutesand Door-Closing Penalties, Isaac Zwerling

Pepperdine Law Review

There is a longstanding tension in the Court’s treatment of non-removal statutes and door-closing penalties. On the one hand, the Court has held non-removal statutes—business registration statutes that condition a foreign corporation’s license on that corporation’s right to remove cases brought against it to federal court—pose an unconstitutional limit on federal court access. On the other, the Court has extended door-closing penalties statutes prohibiting unregistered foreign corporations from initiating an action in the forum state—to federal courts sitting in diversity. This Article surveys how the Court arrived at this puzzling result. It does so by analyzing each line of cases …

Powers V. Dist. Ct., 142 Nev. Adv. Op. 35 (May 14, 2026), Luis Dorantes

Nevada Supreme Court Summaries

NRS 629.620 is unconstitutional and of no effect to the extent that it conflicts with NRCP 35 in governing court-ordered mental and physical examinations during civil discovery.

Joinder, Not Jurisdiction: Toward A New Theory Of Standing, Adam N. Steinman

Faculty Scholarship

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is …

Procedural Political Economy, Luke P. Norris

Law Faculty Publications

When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy …

Piercing The Procedural Veil Of Qualified Immunity: From The Guardians Of Civil Rights To The Guardians Of States’ Rights, Leo Yu

Faculty Journal Articles and Book Chapters

Scholars have found that despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This article is the first to find that over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of …

Is The Contempt Power Obsolete?, Nino C. Monea

Dickinson Law Review (2017-Present)

Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion …

Civil Procedure And The New Bar Exam, Jeffrey A. Parness

University of Colorado Law Review Forum

No abstract provided.

Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson

Catholic University Journal of Law and Technology

No abstract provided.

Self-Intervention, Lumen N. Mulligan

University of Colorado Law Review

You cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state's sovereign interest, to intervene when the attorney general is already representing the state's sovereign interest. In this Article, I contend that the text, history, and practice of Rule 24(a)(2) prohibit such "self-intervention." I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties in interest. I further conclude that …

Lawyerless Law Development, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna Carpenter

Faculty Articles

State civil courts are the object of growing scholarly attention converging from two directions: rapidly expanding research regarding lawyerless state civil trial courts, and an increasing volume of voices calling for state supreme courts to serve as a balm for American democracy’s wounds. The challenges of lawyerless trial courts and the potential of state supreme courts converge when considering how law develops in state civil courts. We and others have asserted that law development is not happening in lawyerless courts, at least not in the way that American legal scholars conventionally understand law development. This Essay explores the core theoretical …

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …

Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …

Constitutional Standoff: An Example Of Practical Difficulty In Mississippi Venue Rules, Hunter C. Ransom

MC Law Review

Mississippi’s legislature and judiciary have been locked in a constitutional standoff over procedural rulemaking power for decades. In an article describing the history of the conflict, author William H. Page has predicted that the situation will inevitably lead to “practical difficulties” down the road. Years later, given ongoing conflicts among various aspects of civil procedure in Mississippi, that prediction is beginning to appear prescient. A prime example has developed in Mississippi’s venue rules.

This Comment has three goals. First, it seeks to resurface Page’s discussion of the “constitutional standoff.”3 Second, it describes how Page was likely correct in predicting that …

For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.

UNH Sports Law Review

No abstract provided.

Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel

Brigham Young University Prelaw Review

Diversity jurisdiction authorizes federal courts to act as impartial tribunals over certain matters of state law. To preserve states' judicial sovereignty, the US Supreme Court has prohibited diversity courts from directly interpreting state law, holding that federal courts must "predict" the legal outcome as if a state court had adjudicated. However, litigant abuse hinders consistency in legal outcomes. Discrepancies between courts spur forum shopping, which cyclically generates more legal incongruence. This paper identifies a "toxic cycle" plaguing diversity jurisdiction and offers five prescriptions which courts and Congress must use to reverse it.

Rethinking The Process Of Service Of Process, Mary K. Bonilla

St. Mary's Law Journal

Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica Steinberg, Colleen Shanahan, Anna Carpenter, Alyx Mark

Faculty Articles

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, …

The Million-Dollar Diversity Docket, Steven Gensler, Roger Michalski

Faculty Articles

What would happen if Congress raised the jurisdictional amount in the diversity jurisdiction statute? Given that it has been almost 25 years since the last increase, we are probably overdue for another one. But to what amount? And with what effect? What would happen if Congress raised the jurisdictional amount from the current $75,000 to $250,000 or, say, $1 million? Using a novel hand-coded data set of pleadings in 2900 cases, we show that the jurisdictional amount is not a neutral throttle. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes …

The Field Of State Civil Courts, Anna Carpenter, Alyx Mark, Colleen Shanahan, Jessica Steinberg

Faculty Articles

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

Judges In Lawyerless Courts, Anna Carpenter, Colleen Shanahan, Jessica Steinberg, Alyx Mark

Faculty Articles

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation. Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

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 …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

How Do You Know It Was Me? A Case Comment On Cobbler Nevada, Llc V. Gonzales, David T. Frankel

Cardozo Law Review

No abstract provided.

The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman

William & Mary Law Review Online

Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …

The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett

Faculty Publications

Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.

This paradox arises at the intersection of three distinct areas of doctrine:

(1) a newly sharpened requirement of concrete injury under Article III that …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna Carpenter, Colleen Shanahan, Alyx Mark

Faculty Articles

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

An Appellate Solution To Nationwide Injunctions, Sam Heavenrich

Indiana Law Journal

District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them …