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Civil Procedure Prof Blog

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Post Frequency: 6.4/day

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

NY Times Story on Lack of Clarity in SCOTUS Opinions (See, e.g., Iqbal; Twombly)

Posted on November 19, 2010
This week?s New York Times contains an article by Adam Liptak titled Justices Are Long on Words but Short on Guidance. From the article: The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized...

Hardaway, Berger, and DeField on E-Discovery and Rule 26

Posted on November 17, 2010
Robert Hardaway (University of Denver), Dustin Berger (Columbia University), and Andrea DeField (University of Denver) have posted E-Discovery's Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age to SSRN. Abstract: Changes in technology allow litigants to create and...

Decision of Interest: Mohawk, Perlman, and the Appealability of Privilege Rulings (U.S. v. Krane)

Posted on November 16, 2010
As covered earlier here, the Supreme Court decided last year that an order compelling disclosure of a document despite a claim of attorney-client privilege is not immediately appealable under the collateral order doctrine. Mohawk Industries, Inc. v. Carpenter, 130 S...

NY Times Story on Litigation Financing

Posted on November 15, 2010
Sunday?s New York Times contains an article Investors Put Money on Lawsuits to Get Payouts, which begins: Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people?s lawsuits, pumping hundreds of millions of...

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Sherry on Doctrinal Change

Posted on November 11, 2010
Prof. Suzanna Sherry (Vanderbilt) has posted on SSRN a draft of her forthcoming article, Foundational Facts and Doctrinal Change, to be published in the University of Illinois Law Review (January 2011). Here?s the abstract: Doctrine is at the center of...

SCOTUS Oral Argument in Class Action Arbitration Case: AT&T Mobility v. Concepcion

Posted on November 09, 2010
We covered earlier the Supreme Court?s grant of certiorari in AT&T Mobility LLC v. Concepcion (09-893), which presents the issue: Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular...

NYTimes Sunday Magazine Cover Story about BP Litigation

Posted on November 08, 2010
The Sunday Magazine of the New York TImes has a long and interesting feature on the role on organization of lawyers in the BP litigation with a particular emphasis on the personalities involved and their past association with complex litigation....

Douglas on Election Law Procedure

Posted on November 05, 2010
Just in time for this week, Joshua A. Douglas (University of Kentucky) has posted The Procedure of Election Law in Federal Courts to SSRN. Abstract: Much attention is paid to the substantive outcomes of election law decisions. But little scholarship....

SCOTUS Oral Argument in Preemption Case: Williamson v. Mazda

Posted on November 04, 2010
The Supreme Court heard oral argument yesterday in Williamson v. Mazda Motor of America, Inc. (08-1314), which presents the question: Where Congress has provided that compliance with a federal motor vehicle safety standard ?does not exempt a person from liability...

Dodson on Jurisdictional Clarity

Posted on November 03, 2010
Scott Dodson (William and Mary School of Law) has posted The Complexity of Jurisdictional Clarity to SSRN. Abstact: The ideal of clear and simple jurisdictional rules seems like a no- brainer. Clarity in areas of subject-matter jurisdiction generally reduces the...

SCOTUS Oral Argument in Ortiz v. Jordan

Posted on November 02, 2010
We covered earlier the Supreme Court's grant of certiorari in Ortiz v. Jordan, which presents the issue: "May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal...

SCOTUS Cert Grant of Interest: Fox v. Vice

Posted on November 01, 2010
The Supreme Court granted certiorari today in Fox v. Vice (No. 10-114), which presents the following questions: 1) Can defendants be awarded attorney's fees under 42 U.S.C. � 1988 in an action based on a dismissal of a claim, when...

Strahilevitz on Pseudonymous Litigation

Posted on November 01, 2010
Lior Strahilevitz (University of Chicago Law School) has posted Pseudonymous Litigation to SSRN. Abstract: We presently lack a good theory for when we should permit parties to litigate using a pseudonym, and American and European legal systems differ sharply on...

Decision of Interest: Twombly/Iqbal in the Eleventh Circuit

Posted on October 29, 2010
Last week the U.S. Court of Appeals for the 11th Circuit issued a significant opinion on federal pleading standards in the wake of the Supreme Court?s decisions in Twombly and Iqbal. The case is Speaker v. U.S. Dept of Health...

Halberstam and Reimann on Federalism (comparative)

Posted on October 28, 2010
Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN. Abstract: How and to what degree do federations produce uniform law within their system? Our comparative...

Sullivan on Iqbal and Employment Discrimination Claims

Posted on October 26, 2010
Prof. Charles Sullivan (Seton Hall) has posted on SSRN a draft of his article, Plausibly Pleading Employment Discrimination, which is forthcoming in the William & Mary Law Review. Here?s the abstract: The Supreme Court?s unanimous 2002 decision in Swierkiewicz v...

3d Cir. on Preemption of Cellphone Liability Lawsuits

Posted on October 25, 2010
The Third Circuit has held in Farina v. Nokia that consumers may not sue cellphone companies over health hazards posed by cellphone radio wave emissions because this conflicts with the FCC's power to regulate the industry. The decision is available...

Copeland on Judicial Federalism Through a Relational Lens

Posted on October 21, 2010
Prof. Charlton Copeland (Miami) has posted on SSRN his forthcoming article Federal Law in State Court: Judicial Federalism Through a Relational Lens, which will be published in the William & Mary Bill of Rights Journal. Here?s the abstract: Enforcing federalism...

Eleventh Circuit Reverses Itself on CAFA: Cappuccitti v. DirecTV

Posted on October 18, 2010
This summer we covered (and critiqued) the Eleventh Circuit?s decision in Cappuccitti v. DirecTV, Inc., 611 F.3d 1252 (11th Cir. July 19, 2010), which had interpreted the jurisdictional provisions of the Class Action Fairness Act (CAFA). The July decision held...

SCOTUS Cert Grant of Interest: Ashcroft v. Al-Kidd

Posted on October 18, 2010
The Supreme Court granted certiorari today in Ashcroft v. Al-Kidd (10-98), limited to questions 1 and 2: (1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a...

Knutsen on Deterence of Litigation in Canada

Posted on October 18, 2010
Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN. Abstract: Costs today play a disproportionate role in many civil litigation decisions in Canada because of...

NYTimes Editorial Highlights Need for Lawyers to Low Income Litigants in Civil Cases

Posted on October 15, 2010
An editorial in today's New York Times describes the inability of budget constrained legal representation programs for low income litigants to provide enough lawyers to persons in civil cases. It calls on the New York State Legislature and Congress to...

SCOTUS Cert Grant of Interest: Bond v. United States

Posted on October 13, 2010
The Supreme Court granted certiorari yesterday in Bond v. United States (No. 09-1227). The question presented is: ?Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the...

Third Annual Junior Faculty Federal Courts Workshop

Posted on October 12, 2010
Last week the University of Illinois College of Law hosted the Third Annual Junior Faculty Federal Courts Workshop in Chicago. Drafts of many of the papers presented are available on SSRN, including: Scott Dodson, The Complexity of Jurisdictional Clarity Joshua...

Two New Twombly/Iqbal Articles

Posted on October 11, 2010
Alex Reinert (Cardozo School of Law) has posted The Costs of Heightened Pleading to SSRN. Abstract: In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases,...

"Petition to Decision": A Digital Archive of Supreme Court Civil Rights Cases

Posted on October 05, 2010
Prof. David Achtenberg (UMKC) has rolled out the website Petition to Decision. From the announcement: Petition to Decision is a comprehensive digital archive of all the available papers of the Supreme Court justices relating to selected civil rights cases...

Toyota's Twombly/Iqbal Strategy

Posted on October 04, 2010
Toyota has filed motions to dismiss in many of sudden acceleration cases including a case recently filed in Virginia. They argue that the plaintiffs have failed to state a claim because they cannot identify a specific defect which caused the...

Miller on Pleading: From Conley to Twombly to Iqbal

Posted on October 04, 2010
Now in print in the latest issue of the Duke Law Journal is an article by Professor Arthur Miller (NYU) entitled From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J....

SEALS Call for Papers on American Civil Procedure in the 21st Century

Posted on October 02, 2010
Here is a call for papers for the 2011 Southeastern Association of Law Schools 2011 Annual Meeting, which will be held in Hilton Head, South Carolina between July 24 and July 30, 2011. The discussion group topic for this call...

9/11 Health Care Bill and the Responders' Lawsuit Settlement

Posted on September 30, 2010
On Wednesday, the House passed a $7.4 billion dollar bill to provide medical treatment for those suffering from respiratory difficulties in the aftermath of 9/11. Because the first responders will be a large beneficiary of this legislation, it is thought...

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