Civil Procedure Commons^™

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt

Faculty Scholarship

This draft analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The draft identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative …

The Continuing Gloom About Federal Judicial Rulemaking, Richard D. Freer

Faculty Articles

In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in “crisis” and its fans are experiencing “malaise.” This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew B. Lawrence

Faculty Articles

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.

Faculty Scholarship

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of …

The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Faculty Scholarship

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems—the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained reflection has been carried out as to the import and impact of this longstanding law school …

A Pragmatic Approach To Discovery Reform: How Small Changes Can Make A Big Difference In Civil Discovery, Paul W. Grimm, David S. Yellin

Faculty Scholarship

No abstract provided.

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

Six Degrees Of Separation: From Derivative Suits To Shareholder Class Actions, Ángel Oquendo

Faculty Articles and Papers

Trans-individual litigation has revolutionized modern law. It has radically altered the manner of assertion and adjudication of legal claims. Beyond concerning a large number of people, the underlying suits operate in a unique fashion. In particular, they call for the constant protection of the interests of the parties on whose behalf the plaintiffs purport to speak. Not surprisingly, corporate law has partaken in this phenomenon. For instance, derivative suits allow individuals to sue for a larger collectivity, somewhat along the lines of the citizen suits established over a century later. Of course, they entertain the claims of the corporation, rather …

Symmetry And Class Action Litigation, Alexandra Lahav

Faculty Articles and Papers

In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to equalize resources between individual plaintiffs and organizational defendants by allowing plaintiffs to pool their claims. Current developments of class action doctrine, however, reinforce in the courtroom the asymmetry that exists between individual plaintiffs and organizational defendants outside the court. This Article explores these trends and the questions they raise. …

A Matter Of National Importance: The Persistent Inefficiency Of Deceptive Advertising Class Actions, Stacey M. Lantagne

Journal of Business & Technology Law

No abstract provided.

The Constitutionality Of Government Fees As Applied To The Poor, Henry Rose

Faculty Publications & Other Works

No abstract provided.

Harmonization Of Procedure: Theory And Practice, Thomas O. Main

Scholarly Works

Review of Kramer & Rhee, Civil Litigation in a Globalizing World (2012).

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Faculty Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Rights Come With Responsibilities: Personal Jurisdiction And Corporate Personhood, Roger Michalski

Faculty Articles

No abstract provided.

(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss

Publications

No abstract provided.

Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis

Faculty Publications

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determine[in] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …

Shoes That Did Not Drop, Richard Marcus

University of Michigan Journal of Law Reform

I take "Shoes That Did Not Drop"' as my topic because I appreciate, by now, that what the Advisory Committee on Civil Rules does not do is, in some ways, as important as what it does. Similarly, the decision not to do something is equally important as, and may be more difficult than, the decision to do something. It may sometimes seem that amending the Rules is too easy. Greg Joseph once said that they are amended as often as the telephone book. Some even think that it was a mistake to create a Rules Committee.3 These reactions are overstated, …

Is Now The Time For Simplified Rules Of Civil Procedure, Paul V. Niemeyer

University of Michigan Journal of Law Reform

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to …

The Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.

University of Michigan Journal of Law Reform

In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury's size below twelve members, with a floor of six unless the parties …