Civil Procedure Commons^™

In Defense Of Plausibility: Ashcroft V. Iqbal And What The Plausibility Standard Really Means , Daniel W. Robertson

Pepperdine Law Review

No abstract provided.

Why Agencies Punish, Max Minzner

William & Mary Law Review

In addition to promulgating regulations, federal administrative agencies penalize entities that violate their rules. In 2010 alone, the National Highway Traffic Safety Administration imposed a statutory maximum $16.4 million penalty on Toyota, and the Securities and Exchange Commission recovered $535 million from Goldman Sachs, the largest civil penalty a financial services firm has ever paid. The academic literature proposes two major theories explaining why agencies might seek these monetary penalties. First, agencies might seek to deter misconduct by using civil penalties to raise the expected cost of regulatory violations above the cost of compliance. Alternatively, agencies might use civil penalties …

Plausibility Beyond The Complaint, Joseph A. Seiner

William & Mary Law Review

In Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Supreme Court announced a new plausibility standard for a plaintiff’s allegations. The decisions may have even broader implications, however, as many federal district courts have already applied this pleading standard to a defendant’s affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of the affirmative defense.

This Article addresses the two possible readings of Twombly and Iqbal: first, that the decisions are limited to a plaintiff’s civil complaint, and second, that a defendant must also comply with the Supreme Court’s plausibility standard by pleading enough …

Contested Elections As Secret Weapon: Legislative Control Over Judicial Decisionmaking, Matthew Lyon, Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

Evidence-Based Litigation Reform, Emily Spottswood

Scholarly Publications

No abstract provided.

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Standing For Private Parties In Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, Bradford Mank

Faculty Articles and Other Publications

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to …

Standing In Monsanto Co. V. Geertson Seed Farms: Using Economic Injury As A Basis For Standing When Environmental Harm Is Difficult To Prove, Bradford Mank

Faculty Articles and Other Publications

Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms. In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Scalia expressed skepticism that the plaintiffs could prove that the …

Mass Torts And Due Process, Sergio J. Campos

Articles

No abstract provided.

Getting Nowhere: Florida's Failed Choice Of Law Approach To Torts And A Proposal For Change, Shirley A. Wiegand

Florida A & M University Law Review

No abstract provided.

Reading The Standing Tea Leaves In American Electric Power V. Connecticut, Bradford Mank

Faculty Articles and Other Publications

In American Electric Power v. Connecticut (AEP), the U.S. Supreme Court by an equally divided vote of four to four affirmed the Second Circuit’s decision finding standing and jurisdiction in the case. Even though it did not announce the identities of the justices who voted for standing and against standing, the AEP decision took the unusual step of providing some explanation for how the Court divided on the standing question, and, as a result, provided important information about the positions of the justices on the issue. While it is not binding as a decision for the lower courts except …

Informational Standing After Summers, Bradford Mank

Faculty Articles and Other Publications

In its recent The Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The D.C. Circuit and the Sixth Circuit had previously reached different conclusions about whether environmental statutes promoting public participation or requiring environmental assessments in certain circumstances create a right to informational standing. The Ninth Circuit in its The Wilderness Society decision interpreted the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, which explicitly narrowed procedural rights standing, as implicitly narrowing standing rights in general and concluded that general notice and …

The Promise Of A Cooperative And Proportional Discovery Process In North Carolina: House Bill 380 And The New State Electronic Discovery Rules, Brian C. Vick, Neil C. Magnuson

Campbell Law Review

Using the experience of the federal courts under the 2006 Amendments as a guide, this Article examines H.B. 380 and the effect it will have on the discovery process in the state courts. Part I of this Article describes the litigation challenges created by the proliferation of ESI. Part II describes the history, structure and substance of the 2006 Amendments, and discusses their impact in the areas of cooperation and the use of proportionality principles in the federal courts. Part III describes the substance and structure of the rules changes encompassed by H.B. 380, and analyzes the effect that they …

(Dis)Service Of Process: The Need To Amend Rule 4 To Comply With Modern Usage Of Technology, 45 J. Marshall L. Rev. 459 (2012), Svetlana Gitman

UIC Law Review

No abstract provided.

The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …

Electronic Discovery And Sanctions For Spoliation: Perspectives From The Classroom, Robert A. Weninger

Catholic University Law Review

No abstract provided.

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.

Creating Diversity Jurisdiction In Removal Actions Through The Improper Use Of Federal Rule Of Civil Procedure 21: Procedural Blackjack Or Judicial Bust, Anthony Andricks

Cleveland State Law Review

Recently, federal district courts have held that Federal Civil Rule of Procedure 21 bestows upon them the power to sever nondiverse parties or claims to create diversity jurisdiction without first finding that a party or claim is improperly joined. Severance may mean that a plaintiff who brings a state court action against multiple parties, one or more of which is not diverse, runs the risk of a federal court severing the action in a removal analysis, even where the plaintiff has committed no improper joinder of parties. Severance may leave a plaintiff with the need to conduct simultaneous suits--one in …

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

University of Michigan Journal of Law Reform Caveat

I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA). My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure. In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, …

Erie As A Choice Of Enforcement Defaults, Sergio J. Campos

Articles

The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This Article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific …

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …

The Inextricable Merits Problem In Personal Jurisdiction, Cassandra Burke Robertson

Faculty Publications

In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in …

Private Transfer Fees: Developer Exploitation Or Legitimate Financing Vehicle, Burke T. Ward, Jamie P. Hopkins

Villanova Law Review (1956 - )

A private transfer fee (PTF) is typically created when a developer or homeowner decides to attach a covenant to the title of the home. This covenant, the PTF covenant, attaches the PTF to the real property. These covenants require payment of a fee—typically stated as one percent of the property's sale price—upon each resale or transfer of the property and often survive for a period of ninety-nine years. The recipients or owners of the PTF (PTF beneficiaries) can be almost anyone, including property developers, PTF developers, home owner associations (HOA), private investors, state governments, and non-profit charities. Usually, the PTF …

The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly, And The Application Of Judicial Experience, Henry S. Noyes

Villanova Law Review (1956 - )

SINCE 1938, Rule 8(a) of the Federal Rules of Civil Procedure (Federal Rules or Rules) has set the standard for how much a plaintiff must allege at the outset of a lawsuit in order to avoid dismissal for failure to state a claim. Rule 8 requires that a plaintiff must include in the complaint "a short and plain statement of the claim showing that the pleader is entitled to relief." Federal courts developed a well-settled set of principles to apply when deciding whether to dismiss a claim. Among these principles are the following: (1) the plaintiffs factual allegations are accepted …

Managing Summary Judgment, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook

University of Michigan Journal of Law Reform Caveat

This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …

Open The Door, Not The Floodgates: Controlling Qui Tam Litigation Under The False Claims Act, Christopher M. Alexion

Washington and Lee Law Review

No abstract provided.

Party's Over: Admissibility Of Post-Trial Juror Testimony Should Depend On The Nature Of The Conduct, Justin Gillett

University of Michigan Journal of Law Reform Caveat

What do you call a weeklong period in which you and a handful of acquaintances drink alcohol every day at lunch, sleep though the afternoons, smoke marijuana and ingest a couple lines of cocaine on occasion? You call it the time when a jury convicted Anthony Tanner and William Conover of conspiracy to defraud the United States and commit various acts of mail fraud. Under a current rule of evidence, which precludes juror testimony to impeach a verdict except on extraneous prejudicial information, juror intoxication is not an external influence about which jurors may testify. A new test for the …

Ripple Effects: The Unintended Change To Jurisdictional Pleading Standards After Iqbal, James E. Von Der Heydt

Cleveland State Law Review

This Note describes a little-observed ripple effect of the new pleading standard announced in Iqbal, the antiterrorism case whose holding swept broadly and changed the ground rules for considering allegations in so-called 12(b)(6) motions for all civil cases. This Note examines the interplay between the Twombly/Iqbal doctrine and federal courts’ practical approach to subject-matter jurisdiction. Part II describes the background jurisprudence on subject-matter jurisdiction, including the sharp line the Supreme Court has consistently re-drawn between claims lacking merit and those lacking jurisdictional basis, from Bell v. Hood through Arbaugh v. Y & H Corp. The consistent theme of this jurisprudence …