Civil Procedure Commons^™

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Piercing The Procedural Veil Of Qualified Immunity: From The Guardians Of Civil Rights To The Guardians Of States’ Rights, Leo Yu

Faculty Journal Articles and Book Chapters

Scholars have found that despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This article is the first to find that over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of …

Reimagining The Inclusive Jury, Anna Offit

Faculty Journal Articles and Book Chapters

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

Counting Is Hard! A Theory Of Doctrinal Expansion, Kip M. Hustace

Lewis & Clark Law Review

We conventionally see pleading as liberalized, with leeway for inconsistent claims and expansive choice among theories of relief, or counts. Yet procedure scholars have shown how heightened pleading post-Twiqbal constricts liberality, turning us back toward 19th century fact-intensive code pleading. This Article theorizes a further constriction: proliferating and ossifying counts. While affording pleading latitude, doctrinal expansion forces hard strategy decisions and represents an inversion of the maxim that procedure shapes substance. Expansion increases system complexity, making localized strategy and discretion more impactful and amplifying opportunities for juridical manipulation. The result: doctrines complexifying toward a tipping point, beyond which we make …

Can State Legislatures Strip Federal Courts Of Jurisdiction To Review State Laws?, Matthew I. Hall, Eliza K. Hall

Scholarly Works

For more than a century, federal courts have relied on the Ex parte Young doctrine to provide authority to protect individual constitutional rights against state infringement. Ex parte Young provides the primary mechanism for federal judicial review of allegedly unconstitutional state laws, permitting persons whose federal rights are affected by state law to seek an injunction in federal court against the state officials charged with enforcing the law. By some accounts, the Ex parte Young doctrine is an exception to sovereign immunity; by others, it is merely an example of the “traditional tool of equity” known as the anti-suit injunction. …

Sweeping General Jurisdiction Under The Specific Jurisdiction Rug: A Doctrinal Map Of The Contraction And Expansion Of Personal Jurisdiction As Told By Ford, Amy L. Moore

Law Faculty Scholarship

This Article provides a doctrinal mapping of the Supreme Court’s modern personal jurisdiction jurisprudence through the lens of Ford Motor Co. v. Montana Eighth Judicial District Court. Tracing the evolution of specific and general jurisdiction from International Shoe through Bristol-Myers Squibb, the Article examines how the Court’s articulation of the “arise out of or relate to” requirement has shifted over time. While Ford purported to clarify the relationship prong of specific jurisdiction, the Article argues that the decision instead destabilizes the doctrinal boundary between specific and general jurisdiction. By reinvigorating the “relate to” language without articulating clear limiting …

Brief Of A Former Federal Judge, Fair And Just Prosecution, 17 Law Professors, And 4 Domestic Violence Researchers And Advocates As Amici Curiae In Support Of Petitioner, Jamie Abrams

Amicus Briefs & Court Filings

While amici are not formally affiliated with each other and come from a variety of professional fields, they are all keenly aware of the pernicious effects of gender bias against female defendants in American courtrooms. Each is deeply familiar with the toll that gender bias exacts not only on the individual women whose interactions with the criminal legal system are tainted by it, but also on the quality, reliability, and fairness of the criminal legal system. Together they have a distinct interest in ensuring that inflammatory and prejudicial gendered stereotypes about how women should look, act, and comport themselves are …

Balancing Efficiency And Authority: The Proper Role Of Magistrate Judges In Section 1782 Applications For International Discovery, Sophia Silvernail

Oklahoma Law Review

No abstract provided.

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Can Litigation Analytics Tell Us What Became Of The 2015 Proportionality Amendments To The Federal Rules Of Civil Procedure?, Patricia W. Moore

Faculty Articles

In 2015, the Federal Rules of Civil Procedure pertaining to discovery were amended for the seventh time in 40 years–part of a cyclic effort to address the so-called “cost and delay” of litigation. The centerpiece of the amendments was the reconfigured requirement that requested discovery be “proportional to the needs of the case,” in addition to being relevant and nonprivileged. The concept of “proportionality” crystallized the 2015 amendments in a single mantra. The proposed amendments inspired passionate and polarized public reactions. Plaintiffs’ attorneys opposed them as an impediment to obtaining the discovery they needed to prove their case, particularly in …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder

Fordham Journal of Corporate & Financial Law

Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos M. Vázquez

Notre Dame Law Review

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . . [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the …

The Administrative State's Jury Problem, Richard Lorren Jolly

Washington Law Review

This Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural …

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article discusses Supreme Court of Virginia and, for the first time, Court of Appeals of Virginia analysis of procedural issues. The Article further discusses revisions to civil procedure provisions of the Code of Virginia and Rules of the Supreme Court of Virginia in the last year.

The Article first addresses opinions of the supreme court and court of appeals, then new legislation enacted during the 2023 General Assembly Session, and finally revisions to the Rules of the Supreme Court of Virginia.

Rule 4 And Personal Jurisdiction, Scott Dodson

Notre Dame Law Review

State-court personal jurisdiction is regulated intensely by the Fourteenth Amend-ment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders. Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are largely confined to the same personal-jurisdiction limits as state courts because of Rule 4(k), which provides that service “establishes personal jurisdiction” in federal court only upon specified conditions, including when the state courts would have personal jurisdiction. Some commentators have further argued that Rule 4(k) sets a limit on federal-court personal jurisdiction independent of service …

A $53m Settlement That Will Improve Conditions In Ny Prisons And Jails, Alexander A. Reinert

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Professor Alexander Reinert has seen his work bring about major changes in prison and jail conditions in New York City and New York State many times. In April 2023, he was co-counsel with lawyers of Cuti Hecker Wang LLP in a historic settlement in Miller v. City of New York, which involved detainees held in restrictive isolation at two jails on Rikers Island and one unit at what was then the Manhattan Detention Complex.

Civil Rights Clinic Wins Historic Louisiana Case Ending Solitary Confinement Of Individuals Awaiting Death Sentences, Betsy Ginsberg, Cardozo Civil Rights Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Should an incarcerated person who has been sentenced to death be required to live out the rest of his or her life in solitary confinement? Not according to the Cardozo Civil Rights Clinic, which recently won a historic settlement changing policy in Louisiana prisons.

Law School News: A Courtroom Drama Worth Watching 10-22-2023, Suzi Morales

Life of the Law School (1993- )

No abstract provided.