Civil Procedure Commons^™

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Book Review: 'E-Discovery In Canada' By Todd J. Burke, Kelly Friedman, Andrew J. Mccreary, James Morton, Susan Nickle, Vincenzo Rondinelli, Glenn Smith, James Swanson & Susan Wortzman, Robert Currie

Articles, Book Chapters, & Popular Press

It is not hyperbolic to say that the proliferation of electronically stored information (ESI) is probably the most prominent change-harbinger and potential havoc-wreaker in civil litigation today — second only, perhaps, to the spiralling costs of litigation itself. Indeed, the practical and legal difficulties associated with the storage, gathering, preservation, disclosure and evidentiary use of ESI have the potential to act as a Trojan Horse, causing what would previously have been ordinary cases to implode under their weight. Increasing recognition of this is evident; electronic discovery (e-discovery) cases have begun to emerge in the reports, a successful co-operative effort by …

The Word Commons And Foreign Laws, Thomas O. Main

Scholarly Works

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …

Responding To The Loss Of An En Banc Quorum (Update: Prawfsblawg Gets Results!?), Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Did The Supreme Court Recently Exercise A Power That Had Lain Dormant For Decades?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

At&T'S Long Game On Unconscionability, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

A Moral Rights Theory Of Private Law, Andrew S. Gold

William & Mary Law Review

Private law—the law of torts, contracts, and property—is at an interpretive impasse. The two leading conceptual theories of private law—corrective justice and civil recourse theories—both suffer from significant weaknesses. Given these concerns, private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand private law. I will argue that private law is best understood as a means for individuals to exercise their moral enforcement rights.

Moral enforcement rights exist when an individual may legitimately use coercion to force another individual to comply with his or her moral duties. Not all interpersonal …

Plausibility Pleading Employment Discrimination, Charles A. Sullivan

William & Mary Law Review

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules of Civil Procedure, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. In addition, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been …

The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore

Faculty Scholarship

There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

The Price Of Access To The Civil Courts In Australia: Old Problems And New Solutions - A Commercial Litigation Funding Case Study, Camille Cameron

Articles, Book Chapters, & Popular Press

In the past decade litigation funding companies have assumed an increasingly prominent role in commercial litigation and class actions in Australia. The growth of commercial litigation funding is a predictable response to various features of Australia’s costs and fee allocation rules and practices, including the “loser pays” rule, the prohibition on lawyer’s charging contingency fees, the hourly billing practices of lawyers, and the open-ended and unpredictable nature of much civil litigation. This chapter explores the growth of commercial litigation funding in Australia and uses it as a window through which to view how Australia’s costs and fee allocation rules operate …

Erie’S Suppressed Premise, Michael S. Green

Faculty Publications

No abstract provided.

Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Journal Articles

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

Iqbal, Twombly, And The Lessons Of The Celotex Trilogy, Hillel Y. Levin

Scholarly Works

This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.

Pleading And Access To Civil Procedure: Historical And Comparative Reflections On Iqbal, A Day In Court And A Decision According To Law, James Maxeiner

All Faculty Scholarship

The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.

Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according …

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

Popular Media

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 …

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

Scholarly Articles

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 judges …

'Canada' In Electronic Evidence, Steve Coughlan

Articles, Book Chapters, & Popular Press

Canada is a bilingual and bi-jurisdictional country. Most provinces and territories are mainly English speaking and have common law as the basis for their legal system. The exception is the province of Quebec which is governed by civil law and where the majority speaks French. However, it must be noted that Quebec civil law has been substantially affected by common law, in particular with respect to discovery rules. The latter are closer to common law discovery rules than they are from, for instance, French civil law. Another important factor for the review of the management of digital evidence in Canada …

Civil Procedure Reform In Switzerland And The Role Of Legal Transplants, Samuel P. Baumgartner

Akron Law Faculty Publications

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide.

First, the new Swiss code of civil procedure includes a number of features that may look like …

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 …

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 …

Nobody Expects The Spanish Inquisition: A Primer On The Use (And Abuse) Of Ex Parte Proceedings In Civil Cases, Robert Currie

Articles, Book Chapters, & Popular Press

On any ex parte application, the utmost good faith must be observed. That requires full and frank disclosure of all material facts known to the applicant or counsel that could reasonably be expected to have a bearing on the outcome of the application. Because counsel for the applicant is asking the judge to invoke a procedure that runs counter to the fundamental principle of justice that all sides of a dispute should be heard, counsel is under a super-added duty to the court and other parties to ensure that as balanced a consideration of the issue is undertaken as is …

Balancing The Pleading Equation, Paul Stancil

Faculty Scholarship

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants' …