Civil Procedure Commons^™

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 …

Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer

Faculty Publications

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal 's factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits …

Autoptic Film, Alex Murray

Cardozo Law Review

No abstract provided.

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell

Cornell Law Faculty Publications

The U.S. Supreme Court revolutionized the law on pleading by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions did more than redefine the pleading rules: by inventing a foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation. This destabilization should rekindle a wide conversation about fundamental choices made in designing our legal system.

Those choices are debatable. Thus, the bone this Article picks with the Court is not that it took the wrong path for pleading, but that it blazed a new and unclear …

Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. No. 5, Anthony R. Sassi

Nevada Supreme Court Summaries

The Court clarifies and explains the procedure announced in Huneycutt v. Huneycutt 2 for seeking a remand to the district court to alter, vacate, or otherwise modify or change a district court order or judgment after an appeal to the Supreme Court has been perfected. Additionally, the Court explains that the perfection of the appeal does not toll the six-month period for seeking NRCP 60(b)(2) relief.

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Law Day Oral Argument Session Fifth District Court Of Appeal, 2010, Honorable William D. Palmer, Chief Judge, Honorable Bruce Jacobus, Honorable C. Alan Lawson

Law Day Presentations

As part of Law Day activities, a three judge panel hear appellate oral arguments on a first-degree murder case, a contract dispute, and a sexual battery and false imprisonment case, in the FAMU College of Law's Ceremonial Moot Courtroom. The Court entertains questions from the gallery regarding the appellate process and organization of the appellate court following each argument.

Summary Of Dictor V. Creative Mgmt. Servs., Llc, 126 Nev. Adv. Op. No. 4, Tenesa S. Scaturro

Nevada Supreme Court Summaries

Appeal of district court order granting summary judgment.

What's Past Is Prologue? Why The Prison Litigation Reform Act Does Not—And Should Not—Classify Punitive Damages As Prospective Relief, Lisa Benedetti

Washington Law Review

The Prison Litigation Reform Act of 1995 (PLRA) arose from Congress’s intent to curb frivolous and institutionally invasive prisoner civil rights litigation. In furtherance of its goals, the PLRA limits the prospective relief prisoners can receive to such relief that is narrowly tailored to the federal rights violation at issue and the least intrusive means necessary to correct the violation, otherwise known as the need-narrownessintrusiveness standard. Under the PLRA, prospective relief includes all relief other than compensatory monetary damages. However, while the courts have frequently applied and interpreted the PLRA over the past decade, only one circuit has addressed whether …

Subverting Rule 56? Mcdonnell Douglas, White V. Baxter Healthcare Corp., And The Mess Of Summary Judgement In Mixed-Motive Cases, Christopher J. Emden

William & Mary Business Law Review

No abstract provided.

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Faculty Publications

Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …