Civil Procedure Commons^™

Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short

Faculty Scholarship

Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.

This Article …

The Case For A Canadian Panel On Multi-Jurisdictional Class Proceedings, Preston Jordan Lim, Justice William Hourigan

Faculty Publications

In Hryniak v Mauldin, the Supreme Court called for a cultural shift to promote timely and affordable access to the civil justice system in Canada. The failings of the civil justice system with respect to class proceedings are particularly troubling. The authors focus on multi-jurisdictional proceedings, which are procedurally complex and notoriously slow-moving, and on past efforts by the bar and bench to render these proceedings more efficient. For the most part, existing reform measures are discretionary, ad hoc, and premised on the consent of all the parties. Whereas cooperation is currently an option under the various reform measures, cooperation …

Bristol-Myers Squibb Co. V. Superior Court Of California, San Francisco County: An Exploration Of The "Arises Out Of" Prong In Personal Jurisdiction, Loden Walker

MC Law Review

The concept of personal jurisdiction in its modern context has existed since the early 1900s. In time, courts have vetted the idea that an individual, company, or legal entity may be brought under the jurisdiction of a state or federal court by reason of its particular contacts with the jurisdiction. In its creation, the Supreme Court of the United States added the requirement that the contact must "arise out of or relate to" the forum state. But dismally, the Court has provided very little on how to apply and operate the "arise out of" prong. As a result, both federal …

Calpers V. Anz Securities: Securities Time Bars, Whit Kendall

MC Law Review

Statutes of limitations and statutes of repose are critical mechanisms that help to limit liability in civil actions. In many instances, these two time bars are paired together in order to protect a defendant from an interminable threat of liability. Although these time limits are present in many types of statutes, they are especially important in statutes involving securities offerings because of the need to protect financial security. In the Securities Act of 1933 ("Securities Act"), there are two time bars, a statute of limitations and a statute of repose, which attempt to protect potential defendants from liability regarding the …

Issues, Evan C. Zoldan

William & Mary Law Review

The Federal Rules of Civil Procedure have issues—148 issues to be exact. Although the Rules use the term “issue” throughout their text, they do not use it in the same way each time. In some circumstances, the meaning of “issue” is made clear by surrounding context, minimizing any interpretive difficulty. But sometimes context does not clarify the term’s meaning, creating interpretive challenges. This Article argues that the ambiguous term “issue” found in Federal Rules of Civil Procedure 50 and 52 is best read to mean a “dispute of fact.” This reading best comports with judicial interpretations of Rules 50 and …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Civil Procedure For The Anthropocene, Roger Michalski, Emily S. Taylor Poppe

Faculty Articles

Climate considerations must become an element of procedural analysis. Scholars, rule makers, legislators, and judges have historically prioritized procedural values including cost, speed, and accuracy. More recent waves of scholarship—including critical perspectives—have emphasized participation as a further procedural goal. Yet this list has grown stale. Current environmental realities force all areas of law, including civil procedure, to reckon with climate change. In the future, proceduralists will be forced to integrate climate-aware thinking into their analyses, proposals, and discussions. Predictably, minds will disagree on how to accomplish this and the kinds of trade-offs that are warranted. Yet the fundamental point of …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Reimagining The Inclusive Jury, Anna Offit

Faculty Journal Articles and Book Chapters

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

2024 Edition

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Arbitration—From Sacred Cow To Golden Calf: Three Phases In The History Of The Federal Arbitration Act, Katherine V.W. Stone

Pepperdine Dispute Resolution Law Journal

For the past twenty-five years, without much fanfare, arbitration law has remade the civil justice system in the United States. As now interpreted, the Federal Arbitration Act (the ‘FAA’) requires millions of consumers, workers, homeowners, credit card holders, rental car uses, hospital patients, and other ordinary people to forgo use of the courts to vindicate important rights. One development that has garnered particular attention is the tendency of corporations to include class action waivers in arbitration agreements, thereby preventing consumers and employees from aggregating small claims and litigating on a collective basis. While arbitration has become ubiquitous, it has also …

Plaintiff's Problem: Constitutional Concerns With Service Of Process Under Alaska Rule Of Civil Procedure 4(D)(7)-(8), Casey Sawyer

William & Mary Bill of Rights Journal

Rule 4 of Alaska’s Rules of Civil Procedure prescribes how service of process must be completed for a civil lawsuit, much like Rule 4 of the Federal Rules of Civil Procedure. When filing suit against the State of Alaska or one of its agencies or officers, Alaska Civil Rule 4(d)(7)–(8) require that service of process be delivered to multiple locations. The plaintiff will usually have to serve the Attorney General’s office in the district of filing (either Anchorage or Fairbanks) and also must deliver service of process to the Attorney General’s office in Alaska’s capital city of Juneau. If they …

Use Of Natural Language Processing (Nlp) In Civil Case Management: A Report On Three Proof Of Concept Projects, Paula Hannaford-Agor, Jannet Okazaki

Faculty Publications

In 2016, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) endorsed recommendations to leverage technology to improve civil case management. In particular, Natural Language Processing (NLP) and related tools could be used to support two areas of civil case processing: sorting cases at filing based on the anticipated level of judicial involvement in case management, and confirming that essential procedural requirements have been satisfied before entering final judgments in cases.

To explore the feasibility of NLP to support court operations in these two areas, the National Center for State Courts (NCSC) designed three distinct …

Home Court Advantage? An Empirical Analysis Of Local Bias In U.S. District Court Diversity Jurisdiction Cases, Kyle C. Kopko, Christopher J. Devine

West Virginia Law Review

In granting diversity of citizenship jurisdiction to the federal courts, there is an underlying assumption that federal courts will be less biased toward out-of-state litigants as compared with state courts. While this may be true, the assumption fails to consider an important empirical question: to what extent do federal courts favor home state litigants or disfavor out-of-state litigants when deciding diversity jurisdiction cases? Relying on the Integrated Database (IDB) compiled by the Federal Judicial Center and the Administrative Offices of the U.S. Courts, we present an original, empirical analysis of diversity jurisdiction case outcomes in the U.S. districts courts from …

A Renewed Analysis Of The Expedited Actions Rules In Texas Courts, Paula Hannaford-Agor, Lindsey Wylie, Miriam Hamilton, Brittany K. T. Kauffman, Logan Cornett, James Swearingen, Michael Houlberg, Jeffrey Tsunekawa, Michael Smith, Sheri Woodfin,

Faculty Publications

In October 2021, the Texas Office of Court Administration (OCA) and the National Center for State Courts (NCSC) returned to the question of whether the Expedited Action Rules (EARs) adopted in 2012 in Texas were continuing to have a positive impact on civil case processing. With new funding from the State Justice Institute (SJI), the NCSC, OCA, and the Institute for the Advancement of the American Legal System at the University of Denver, set out to replicate a 2016 study. Using the same research methods, the project team gathered data from the district and county courts in Dallas, Fort Bend, …

Vega V. Tekoh, Elizabeth M. Hudson

Tennessee Law Review

No abstract provided.

Rules And Laws For Civil Actions 2023, Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

Maintaining Due Process By Extending Bristol-Myers Squibb Co. To Federal Class Actions, Felicia D. Sych

American University Law Review

In 2017, the U.S. Supreme Court issued its seminal decision in Bristol Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question …

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

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 …

Where Neutrality Stops And Reality Begins: Why Considering Identity Is Vital To Lead And Class Counsel Selection, Melissa Mortazavi

Faculty Articles

When courts consider a choice of class or lead counsel in multidistrict litigation ("MDL') or class action suits, they often follow the idea of a neutral partisan model. Such a model idealizes lawyer conduct as a blank conduit for client interests. In theory, lawyers should be able to bring their legal expertise absent any personal experiences, individualized identity, and morality outside of practice. But the reality is that neither lawyers nor their clients can fully divorce their identities or moral viewpoints from the legal system. This Essay argues that an identity-blind choice of class or lead counsel, grounded in a …

White-Collar Courts, Merritt E. Mcalister

UF Law Faculty Publications

Article III courts are white-collar courts. They are, scholars have said, “special.” They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite—jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

The Pro Se Gender Gap, Roger Michalski

Faculty Articles

This article is the first to identify, name, and empirically measure the pro se gender gap. Drawing on a massive dataset of all federal civil dockets spanning 10 years, it finds a 2-to-1 gender imbalance. For every federal female pro se litigant there are two males. This finding is robust and stable. It holds true for plaintiffs, defendants, and other parties. It is also true across most subject areas, across time, across length of litigation, and across states, districts, and circuits. The study excludes prisoner-rights and habeas petitions (including them would widen the gender gap even further). This gender gap …

Trade Secret Case Management Judicial Guide, Peter S. Menell, Victoria A. Cundiff, James Pooley, Elizabeth Rowe, Peter J. Toren, Rebecca Wexler

Faculty Books

The Trade Secret Case Management Judicial Guide provides judges with a comprehensive resource for surveying trade secret law and managing trade secret litigation. Chapters are organized according to the stages of litigation and guided by an early case management checklist.

Pop & Perjury: The Irs Valuation War With The Estate Of Michael Jackson

The University of New Hampshire Law Review

When Michael Jackson died unexpectedly in Los Angeles, California, on June 25, 2009, his career and earnings were nearing an all-time low. Plagued by past sexual abuse allegations, scandals, and questionable health, Michael Jackson’s personal finances were purported to be in complete disarray. However, following his unexpected death, the value of his estate, which was reported to be near to nothing, swelled as the world remembered his beloved contributions to the world and began to purchase accordingly. Sales of Michael Jackson’s music began to soar high. The estate’s value soared even higher as it signed licensing agreements and released new …

Running Crane, Et. Al. V. Parsons, 19-Ap-13 (Blkft Tr. Ct. App., Nov. 17, 2022), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court clarified that when the Court, in review of an appellate case, directs parties to submit a detailed summary of the status of the case, within a limited time period, and the partied do not provide that status update, the Court will dismiss that case, without prejudice.