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Civil Procedure Prof Blog

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Last Entry: April 01, 2011 at 13:59:54

Is Erie Among The Most Maligned Decisions In Supreme Court History?

Posted on April 01, 2011
Yes, according to a symposium going on today at Pepperdine University School of Law entitled Supreme Mistakes: Exploring the Most Maligned Decisions In Supreme Court History. From the symposium brochure: This symposium will focus on notable United States Supreme Court...

Serving Dick Tracy: Warren Beatty vs. Tribune Media Services Lawsuit Raises Interesting Personal Jurisdiction, First-Filed Rule Issues

Posted on April 01, 2011
I would like to thank Robin, Cynthia, and Adam for having me as a guest blogger this month. My goal in teaching Civil Procedure has been to try to liven up the class with cases involving interesting fact patterns and...

SCOTUS Decision in Astra USA v. Santa Clara County

Posted on April 01, 2011
This week the Supreme Court issued a unanimous decision in Astra USA, Inc. v. Santa Clara County (covered earlier here). Justice Ginsburg?s opinion begins: Section 340B of the Public Health Services Act imposes ceilings on prices drug manufacturers may charge...

Welcome Guest Blogger Colin Miller

Posted on April 01, 2011
We are pleased to welcome Professor Colin Miller as a guest blogger during the month of April. Colin is an Associate Professor at The John Marshall Law School in Chicago, where he teaches evidence, criminal procedure, criminal law, and civil...

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Yesterday's SCOTUS Oral Argument in PLIVA, Inc. v. Mensing: Federal Preemption & Generic Drugs

Posted on March 31, 2011
The Supreme Court heard argument yesterday in three consolidated cases that raise the question of federal preemption of state-law tort liability in claims involving generic drugs. The oral argument transcript is available here. The cases are PLIVA, Inc...

Oral Argument Transcript in Wal-Mart v. Dukes

Posted on March 30, 2011
The transcript from yesterday's oral argument in Wal-Mart Stores, Inc. v. Dukes is available here. For a sampling of the extensive commentary and stories about yesterday's argument, see the ABA Journal, How Appealing, the National Law Journal, and SCOTUSblog...

While you were thinking about Dukes v. Wal-Mart...

Posted on March 30, 2011
The 11th Circuit recently decided Fitzpatrick v. General Mills, ordering a distrct court to broaden the class it certified. Fitzpatrick is a class action brought by plaintiffs who believe that General Mills overcharged them for "probiotic yogurts" such as Yo...

SCOTUS Oral Argument in Wal-Mart v. Dukes

Posted on March 29, 2011
The Supreme Court hears argument today in Wal-Mart Stores, Inc. v. Dukes. The questions presented are: Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)?which by its terms is limited to injunctive or corresponding...

Green on Erie's Suppressed Premise

Posted on March 28, 2011
Michael Steven Green (William and Mary Law School) has posted Erie's Suppressed Premise to SSRN. Abstract: The Erie doctrine is usually understood as a limitation on federal courts? power. This Article concerns the unexplored role that the Erie doctrine has...

Federal Judicial Center Report on the Impact of Twombly/Iqbal

Posted on March 28, 2011
The Federal Judicial Center has released a Report to the Advisory Committee on Civil Rules entitled Motions to Dismiss for Failure to State a Claim After Iqbal, authored by Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared...

Judge Chin Rejects Google Books Settlement

Posted on March 23, 2011
Judge Chin (SDNY) rejected the settlement negotiated in the Google Books class action case. He worries that the settlement would be unfair to copyright owners and suggested that an opt-in format would be preferable to the current opt-out settlement. The...

Today's SCOTUS Decision in Matrixx Initiatives v. Siracusano: More on Pleading

Posted on March 22, 2011
Today the Supreme Court issued a unanimous opinion (per Justice Sotomayor) in Matrixx Initiatives, Inc. v. Siracusano (No. 09-1156), affirming the Ninth Circuit?s conclusion that the plaintiffs? complaint adequately stated a claim for securities fraud...

Second Circuit Decision in Amnesty International v. Clapper: Plaintiffs Have Standing to Challenge Federal Wiretapping Procedures

Posted on March 21, 2011
Today?s opinion in Amnesty International v. Clapper (No. 09-4112-cv) begins: Attorneys, journalists, and labor, legal, media, and human rights organizations brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (?FISA?), which...

Decision of Interest: Eighth Circuit on CAFA and 1447(c)'s Remand Deadline

Posted on March 21, 2011
In a decision issued earlier this month, the Eighth Circuit considered the deadline for seeking a remand to state court based on the ?Local Controversy? exception to jurisdiction under the Class Action Fairness Act (CAFA). See 28 U.S.C. � 1332(d)(4)....

Lahav on Redish's Class Action Book

Posted on March 21, 2011
Alexandra Lahav (University of Connecticut) has posted Book Review: Are Class Actions Unconstitutional to SSRN. Abstract: This is a book review of Martin Redish, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford U...

Decision of Interest: Twombly/Iqbal and Affirmative Defenses

Posted on March 16, 2011
Last week Judge Jerome B. Simandle (U.S. District Court for the District of New Jersey) issued an opinion addressing whether the approach to pleading articulated by the Supreme Court in Twombly and Iqbal applies to the pleading of affirmative defenses...

Simard & Tidmarsh on Foreign Citizens in U.S. Class Actions

Posted on March 15, 2011
?Professors ??Linda Sandstrom Simard (Suffolk) and Jay Tidmarsh (Notre Dame) have posted on SSRN a draft of their article Foreign Citizens in Transnational Class Actions, which will be published in the Cornell Law Review. Here's the abstract: ??????This Article addresses...

More on SCOTUS Discussion of Pleading Standards in Last Week's Skinner Decision

Posted on March 14, 2011
We covered earlier the Supreme Court's discussion of federal pleading standards in its Skinner v. Switzer opinion, issued last week. Howard Wasserman has some additional commentary over at PrawfsBlawg in a post entitled "Some hints (or further confusion) about the...

Rotunda on Compulsory Counterclaims in Bankruptcy Court

Posted on March 14, 2011
Ronald Rotunda (Chapman University) has posted Stern v. Marshall, and the Power of Bankrupcty Courts to Issue Final Orders On All Compulsory Counterclaims to SSRN. Abstract: Article III of the Constitution grants federal district judges, appellate court judges, and Supreme...

Witness Statements from Congressional Hearing on the Lawsuit Abuse Reduction Act

Posted on March 11, 2011
Statements from the three witnesses at today?s congressional hearing on H.R. 966 (covered earlier here) are now available. Here are the links: Elizabeth A. Milito NFIB Small Business Legal Center Lonny Hoffman University of Houston Law Center Victor E...

Congressional Hearing On Legislation To Amend FRCP 11: The Lawsuit Abuse Reduction Act (H.R. 966)

Posted on March 10, 2011
The House Judiciary Committee?s Subcommittee on the Constitution is holding a hearing tomorrow (March 11th) at 10:00 a.m. on H.R. 966. The legislation is entitled the "Lawsuit Abuse Reduction Act of 2011," and its purposes include "[t]o amend Rule 11...

Release of Federal Judiciary Caseload Statistics

Posted on March 09, 2011
The Administrative Office of the U.S. Courts has released its latest data (through 6/30/2010) on caseloads in the U.S. Courts of Appeals, District Courts, and Bankruptcy Courts. The statistical tables are available here. --A (Hat Tip: Blog of the Legal...

Campos and Erichson Debate the Future of Mass Torts on PENNumbra

Posted on March 08, 2011
PENNumbra, the online companion to the Penn Law Review is hosting a debate about the procedural future of mass torts between Sergio Campos (University of Miami) and Howard Erichson (Fordham University). From Sergio's opening statement: The evolving case law on...

Discussion of Pleading Standards in Today's SCOTUS Decision (Skinner v. Switzer)

Posted on March 07, 2011
Readers following federal pleading standards after Twombly and Iqbal may be interested in a snippet from today's Supreme Court opinion in Skinner v. Switzer. The opinion cites neither Twombly nor Iqbal but does cite the Court?s pre-Twombly pleading decisions Scheuer...

Today's SCOTUS Decision in Skinner v. Switzer: Use of Section 1983 to Compel DNA Testing of Crime-Scene Evidence

Posted on March 07, 2011
Today the Supreme Court issued its decision in Skinner v. Switzer, holding by a 6-3 vote that a � 1983 suit is a proper vehicle for compelling DNA testing of crime-scene evidence. Justice Ginsburg?s majority opinion (joined by Chief Justice...

Stevenson on Jury Selection and the Coase Theorem

Posted on March 04, 2011
Drury Stevenson (South Texas College of Law) has posted Jury Selection and the Coase Theorem to SSRN. Abstract: The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation...

Huang on Lightened Scrutiny

Posted on March 03, 2011
Bert I. Huang (Columbia University Law School) has posted Lightened Scrutiny to SSRN. Abstract: The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many...

Commentary: Two Cheers for Henderson

Posted on March 02, 2011
From Professor Scott Dodson (William & Mary) comes the following commentary on yesterday?s SCOTUS decision in Henderson v. Shineski (covered earlier here)... Yesterday, the Court handed down its decision in Henderson v. Shinseki (09-1036), holding that the statutory deadline for...

Dodge on the Limits of Private Procedural Ordering

Posted on March 02, 2011
Jaime Dodge (Harvard Law School) has posted The Limits of Private Procedural Ordering to SSRN. Abstract: Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs ? most commonly, forum selection and choice of law...

SCOTUS Decision in Henderson v. Shinseki

Posted on March 01, 2011
We covered earlier the Supreme Court?s grant of certiorari in Henderson v. Shinseki, the latest case in the Court?s ongoing struggle to distinguish ?jurisdictional? requirements from ?nonjurisdictional? ones. In an 8-0 decision (Justice Kagan took no part in the case),...

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