Civil Procedure Commons^™

Take Me Home To Conley V. Gibson, Country Roads: An Analysis Of The Effect Of Bell Atlantic Corp. V. Twombly And Ashcroft V. Iqbal On West Virginia's Pleading Doctrine, Devon J. Stewart

West Virginia Law Review

No abstract provided.

A Sense Of Disentitlement: Frame-Shifting And Metaphor In Ashcroft V. Iqbal, Lisa A. Eichhorn

Faculty Publications

No abstract provided.

Summary Of Schiff V. Winchell, 126 Nev. Adv. Op. No. 32, Amy Kominsky

Nevada Supreme Court Summaries

The Court determined whether the pre-judgment interest rate is calculated based the date of the original judgment or the date of affirmation on appeal.

Summary Of Quinlan V. Camden Usa Inc., 126 Nev. Adv. Op. No. 30, Zachary Lowe

Nevada Supreme Court Summaries

Appeal from district court’s award of attorney fees and costs in favor of Camden pursuant to a rejected offer of judgment on behalf of Quinlan. The Court decided whether Nevada would adopt an implied consent to service by facsimile for an offer of judgment under NRS 17.115 and NRCP 68.M

In Re Est. Of Sure Chief, No. 2009-P-20 (Blkft. Tr. Ct. App., Jul. 1, 2010)., Blackfeet Appellate Court

Court Decisions

Court of Appeals held that petitioner could not appeal the appointment of personal representative for her mother’s estate until she had exhausted her remedies at the Lower Court “with verification of how her rights have been violated.”

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2009 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, subject matter jurisdiction, arbitration, and statutory interpretation.

When Is An Alternative Forum Available - Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels

Articles

No abstract provided.

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Martin H. Redish, Peter Julian, Samantha Zyontz

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

Interregional Recognition And Enforcement Of Civil And Commercial Judgments: Lessons For China From Us And Eu Laws, Jie Huang

Duke Law SJD Dissertations

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This Dissertation is a comparative study and focuses on what lessons China can draw from the US and the EU to develop a Multilateral JRE Arrangement between Mainland China, Hong Kong, and Macao.

In Re Marriage Of Blackman And Blackman, 2008-Ca-100 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court held that Blackfeet Law and Order Code, Chapter 11 only allows appeal from final judgment. Because no final judgment had been rendered by the lower court, the appeal was without merit.

Tribe V. Marceau, 2010-Ap-05 (Blkft. Tr. Ct. App., Jun. 15, 2010), Blackfeet Appellate Court

Court Decisions

In a brief order, the Blackfeet Tribal Court of Appeals held that the Tribe could not appeal the trial court judge’s verdict of not guilty due to lack of evidence. The Court cited to Chapter 11 Sec. 11-A of the Blackfeet Tribal Law and Order Code, which limits the circumstances in which the Tribe can appeal in a criminal case. Sec. 11-B, which outlines the circumstances when the Tribe can appeal in a criminal case, does not provide that the Tribe can appeal a not guilty verdict.

Summary Of Polk V. Nevada, 126 Nev. Adv. Op. No. 19, John L. Ward

Nevada Supreme Court Summaries

No abstract provided.

Do Class Action Lawyers Make Too Little?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Class action lawyers are some of the most frequently derided players in our system of civil litigation. It is often asserted that class action lawyers take too much from class judgments as fees, that class actions are little more than a device for the lawyers to enrich themselves at the expense of the class. In this Article, I argue that some of this criticism of class action lawyers is misguided. In particular, I perform a normative examination of fee percentages in class action litigation using the social-welfarist utilitarian account of litigation known as deterrence-insurance theory. I argue that in perhaps …

Summary Of In Re Sandoval, 126 Nev. Adv. Op. No. 15, Amy Kominsky

Nevada Supreme Court Summaries

This case is a certified question that originates from the United States Bankruptcy Court for the District of Nevada to determine whether a default judgment entered for failure to respond to a valid complaint has issue preclusive effects.

Ashcroft In A Defendant's Wonderland: Redefined Pleading Standards In Ashcroft V. Iqbal, Cassidy M. Flake

Mercer Law Review

The United States Supreme Court's decision in Ashcroft v. Iqbal is the Court's awaited clarification of its earlier decision in Bell Atlantic Corp. v. Twombly. In the wake of Twombly, courts and commentators debated its application to cases other than antitrust disputes. The Court announced in Iqbal that the Twombly complaint requirement of facial plausibility applies to all civil actions filed in federal court, not just antitrust cases. Accordingly, Iqbal currently governs the standards by which all plaintiffs in federal court must draft complaints to state a legally sufficient claim for relief and survive a defendant's motion to …

The Pleading Problem, Adam N. Steinman

Faculty Scholarship

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a …

The Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin J. Effron

Faculty Scholarship

No abstract provided.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin J. Effron

William & Mary Law Review

Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic Corp. v. Twombly introduced the concept of “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases. The Article argues that it is unacceptable to automatically equate the existence of a class …

Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron

Faculty Scholarship

No abstract provided.

Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner

BYU Law Review

No abstract provided.

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

Book Review. Joan Biskupic, An American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

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 …

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

The Journal of Appellate Practice and Process

No abstract provided.

Corporate Governance In The Courtroom: An Empirical Analysis, Jessica M. Erickson

Law Faculty Publications

Conventional wisdom is that shareholder derivative suits are dead. Yet this death knell is decidedly premature. The current conception of shareholder derivative suits is based on an empirical record limited to suits filed in Delaware or on behalf of Delaware corporations, leaving suits outside this sphere in the shadows of corporate law scholarship. This Article aims to fill this gap by presenting the first empirical examination of shareholder derivative suits in the federal courts. Using an original, hand-collected data set, my study reveals that shareholder derivative suits are far from dead. Shareholders file more shareholder derivative suits than securities class …

Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

No abstract provided.

Iqbal And Bad Apples, Michael C. Dorf

Cornell Law Faculty Publications

In addition to its important implications for federal civil procedure, the Supreme Court’s decision in Ashcroft v. Iqbal put the imprimatur of the Supreme Court on a troubling narrative of the excesses carried out by the Bush Administration in the name of fighting terrorism. In this “few bad-apples narrative,” harsh treatment of detainees—especially in the immediate wake of the attacks of September 11th, but also years later in such places as Afghanistan, Iraq, the Guantanamo Bay detention center, and elsewhere—was the work of a small number of relatively low-ranking military and civilian officials who went beyond the limits of the …

The Newly-Enacted Cplr 3408 For Easing The Mortgage Foreclosure Crisis: Very Good Steps, But Not Legislatively Perfect, Mark C. Dillon

Pace Law Review

No abstract provided.

Federal Pleading And State Presuit Discovery, Scott Dodson

Faculty Publications

This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal - when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results …