Civil Procedure Commons^™

Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston

Michigan Law Review

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different …

How States Can Protect Their Policies In Federal Class Actions, Lucas Watkins

Campbell Law Review

The role of the states in our constitutional system is to protect their citizens and supply tort liability. Where federal law does not preempt state systems of liability, state law supplies the tort- and contract-based rules that govern the vast majority of the relationships in our society and economy. Some think that national rules of liability, or new national choice-of-law rules, should supplant today's state-by-state regulation. But until Congress enacts a comprehensive regulatory scheme, state law will control the causes of action that plaintiffs can bring. And the state law that controls the cause should control the way that the …

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

Loss Causation And Class Certification, Steven Serajeddini

Michigan Law Review

Courts have long faced difficulty interpreting loss causation under Section 10b-5 of the Securities Act of 1934. This difficulty stems from the seemingly irreconcilable conflict between this core element of common law fraud and the procedural demands of Rule 23 of the Federal Rules of Civil Procedure, the typical vehicle for a 10b-5 class action. Recently, some courts and commentators have begun to consider loss causation as an individualized inquiry that is not common among class members, and one that therefore warrants consideration at the class certification stage. The existing justifications center on the conceptually distinct 10b-5 element of reliance, …

Understanding Pleading Doctrine, A. Benjamin Spencer

Michigan Law Review

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 …

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery …

Victor Stanley, Inc. V. Creative Pipe, Inc.: How To Utilize Rule 502 To Prevent Inadvertent Disclosure And Reduce Discovery Costs In An Age Of Electronically Stored Information, Michael J. Christin

Maryland Law Review Online

No abstract provided.

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

Plausibility Pleading, A. Benjamin Spencer

Faculty Publications

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a) (2), which requires a "short and plain" statement of a plaintiffs claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the …

The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso

Michigan Journal of International Law

This Note provides a European perspective on the issues raised by In re Rubber Chemicals Antitrust Litigation (Rubber Chemicals), and expresses concern regarding the inconsistent approach taken by U.S. courts to the discoverability of the Leniency submissions. This Note also warns that this inconsistency may have a chilling effect on participation in the E.U. Leniency Program and may thus impede enforcement of European anti-cartel law.

Making Effective Rules: The Need For Procedure Theory, Robert G. Bone

Oklahoma Law Review

No abstract provided.

Justness! Speed! Inexpense! An Introduction To The Revolution Of 1938 Revisited: The Role And Future Of The Federal Rules, Steven S. Gensler

Oklahoma Law Review

No abstract provided.

Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts 1938-2006, Seymour Moskowitz

Law Faculty Publications

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where "private attorneys general" may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This …

Managing Preservation Obligations After The 2006 Federal E-Discovery Amendments, Thomas Y. Allman

Richmond Journal of Law & Technology

The 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (2006 Amendments or the Amendments) do not directly address the onset or scope of preservation obligations. As noted in the September 2005 Report of the Standing Committee of the Judicial Conference recommending adoption of the 2006 Amendments, preservation obligations “arise from independent sources of law” and are dependent upon “the substantive law of each jurisdiction.” However, the Amendments have a major impact on how parties must analyze and execute preservation obligations involving electronically stored information (“ESI”).

The 2006 Amendments To The Rules Of Civil Procedure: Accessible And Inaccessible Electronic Information Storage Devices, Why Parties Should Store Electronic Information In Accessible Formats, Benjamin D. Silbert

Richmond Journal of Law & Technology

Discovery jurisprudence is a cornerstone of civil litigation in the United States. The Federal Rules of Civil Procedure, as adopted in 1938, introduced a broad discovery process, which was not a previously accepted practice. The Federal Rules of Civil Procedure have been revised several times since 1938, reflecting the evolution of society. However, prior to 2006, 1970 was the last time the discovery rules were amended to take into account changes in information technology. In the last thirty-seven years, technological advances in electronic storage and communication have changed the way people live and how business is conducted, beyond what could …

Just Say "No Fishing": The Lure Of Metaphor, Elizabeth G. Thornburg

University of Michigan Journal of Law Reform

The phrase "fishing expedition" is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court's attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the "fishing expedition" metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use …

Symposium Reflections: A Rulemaking Perspective, Edward H. Cooper

Articles

These reflections seek to situate this most excellent Symposium in the rulemaking process. All contributors are working with an eye to that process. Their goal is to achieve a better understanding of how offer-ofjudgment rules actually work in practice. The major focus is on Rule 68 of the Federal Rules of Civil Procedure as it has affected practice in actions brought under fee-shifting statutes, but Professor Yoon's article adds insights into state practice in the very different world of automobile accident claims. There is no reason to attempt to summarize or synthesize the papers or discussions that stand so well …

Zubulake V. Ubs Warburg: Evidence That The Federal Rules Of Civil Procedure Provide The Means For Determining Cost Allocation In Electronic Discovery Disputes, Bahar Shariati

Villanova Law Review (1956 - )

No abstract provided.

Restyling The Civil Rules: Clarity Without Change, Edward H. Cooper

Articles

Devoted fans and casual users of the Federal Rules of Civil Procedure will feel mixed emotions on contemplating the Style Project that aims to rewrite every rule from Rule 1 to the end. Well they might. The Style Project's purpose is simply stated. The Civil Rules, created in an inspired fit of creativity, have been amended repeatedly over the years. Experience has shown that even inspired initial drafting could not avoid all misadventures and that amendments drafted by successive generations wielding different drafting tools do not always fit well. The present rules can be reworked to say more clearly what …

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

Faculty Scholarship

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson

Faculty Scholarship

It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether …

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

Civil Procedure: Class Certification And The Predominance Requirement Under Oklahoma Section 2023(B)(3), Steven S. Gensler

Oklahoma Law Review

No abstract provided.

Deregulating Voluntary Dismissals, Michael E. Solimine, Amy E. Lippert

University of Michigan Journal of Law Reform

Federal Rule of Civil Procedure 41(a) and its state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. Within certain windows of opportunity, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has …

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 …

Keeping Courts Afloat In A Rising Sea Of Litigation: An Objective Approach To Imposing Rule 38 Sanctions For Frivolous Appeals, Scott A. Martin

Michigan Law Review

As their dockets swell, federal judges' tolerance for attorney misconduct wears thin. More than ever, judges are willing to impose sanctions for abuses of federal court processes, including frivolous appeals. As one judge explained, "[w]ith courts struggling to remain afloat in a constantly rising sea of litigation, a frivolous appeal can itself be a form of obscenity." Aside from the need to reduce caseloads, other factors underlie the courts' willingness to impose sanctions for frivolous appeals. One concern is that the costs to responsible, ethical litigants increase sharply when the court system's resources are diverted to meritless claims. Another motivating …

Civil Procedure By Contract: A Convoluted Confluence Of Private Contract And Public Procedure In Need Of Congressional Control, David H. Taylor, Sara M. Cliffe

University of Richmond Law Review

There is great appeal to the notion that parties to a contract may provide in their agreement for how certain aspects of any dispute that may subsequently arise will be resolved. The appeal is so great, in fact, that both parties and courts have embraced the use and enforcement of pre-litigation agreements ("PLAs"). These agreements take a variety of forms. Parties may agree to the forum in which their dispute will be resolved. They may designate the law that will be applied to the resolution of the dispute. Parties may designate what evidence may or may not be presented as …

Simplified Rules Of Federal Procedure?, Edward H. Cooper

Articles

Writing in 1924, seventy-eight volumes ago, Professor Edson R. Sunderland began The Machinery of Procedural Reform with this sentence: "Much has been said and written about the imperfections of legal procedure."' Much of his article describes circumstances in which procedural reform occurred only in response to conditions that had become "intolerable." A decade later, Congress enacted the Rules Enabling Act that still provides the framework for reforming federal procedure.2 The Enabling Act establishes a deliberate and open process for amending the rules initially adopted under its authority. It may take longer today to consider and adopt a single rule amendment …

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 …