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Miscellaneous

Federal Civil Practice Bulletin

Dedicated to federal civil practice and procedure.

Post Frequency: 5.3/day

Last Entry: January 13, 2014 at 12:37:00

Fifth Circuit Notes Split Re Proper Privity Analysis in Context of EPA-Negotiated Consent Decree on a Prior CWA Suit

Posted on June 04, 2008
Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):We recognize that, in some limited instances, ?a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits...

Prof. Spencer Posts Article on Pleading Civil Rights Claims

Posted on June 02, 2008
Professor A. Benjamin Spencer (W&L) has just posted an Article entitled Pleading Civil Rights Claims in the Post-Conley Era. Here is the Abstract:Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term...

Prof. Lahav Posts Essay on Value of Jurisdictional Redundancy

Posted on May 30, 2008
Professor Alexandra D. Lahav (Conn.) has recently posted an Essay entitled Recovering the Social Value of Jurisdictional Redundancy on SSRN. Here is the Abstract:This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced...

Prof. Redish and Dennis Mrashko Post Article on Rules Enabling Act on SSRN

Posted on May 28, 2008
Professor Martin Redish (Northwestern) and Dennis Murashko (10th Circuit law clerk) have posted an Article entitled The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation on SSRN. Here is the Abstract:The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation...

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Fifth Circuit Hears Case about whether Judge's Discretion Should Be Limited When Party Requests Venue Transfer

Posted on May 27, 2008
From the Texas Lawyer, May 22, 2008:In a mandamus case that could significantly alter one of the hottest federal civil dockets in Texas, the full 5th U.S. Circuit Court of Appeals heard arguments on May 22 over whether a trial judge?s discretion should be limited when a party moves to transfer venue...

N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Posted on May 26, 2008
Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):Courts have wrestled with the articulation of a clear test for interpreting what constitutes ?prepared in anticipation of litigation? in the context of an IRS summons...

Eighth Circuit Finds SLUSA Preemption Based on Merely Coincident Nondisclosures

Posted on May 21, 2008
Per Siepel v. Bank of America, N.A., --- F.3d ----, 2008 WL 2079028 (8th Cir. May 19, 2008):The Plaintiffs argue that the Bank's non-disclosure was not ?in connection with? the purchase of the securities, such that the non-disclosure did not relate to a decision whether to purchase a security...

Prof. Sharkey Posts Article on CAFA Settlement Notice Provision

Posted on May 20, 2008
Professor Catherine M. Sharkey (NYU) has recently posted an Article entitled CAFA Settlement Notice Provision: Optimal Regulatory Policy? on SSRN. Here is the Abstract:Written for The University of Pennsylvania Law Review's symposium, Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005, this article evaluates the largely ignored settlement notice provision...

Prof. Sebok Posts Essay on Punitive Damages Limitations on SSRN

Posted on May 19, 2008
Professor Anthony Sebok (Brooklyn) recently posted a brief essay entitled After Philip Morris v. Williams: What is Left of the 'Single-Digit' Ratio? on SSRN. Here is the Abstract:This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007...

Prof. Moss Posts Article on Improving Discovery

Posted on May 15, 2008
Professor Scott A. Moss of the University of Colorado Law School recently posted an Article entitled Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age on SSRN. Here is the Abstract:Cases are won and lost in discovery, yet discovery draws too little academic attention...

First Circuit Discusses Degree of Merits Inquiry Required at Class Certification Stage for Novel or Complex Theories of Injury

Posted on May 14, 2008
Per In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6 (1st Cir. Mar. 28, 2008):In challenging the certification of the state damages classes, defendants primarily argue that the district court did not engage in a sufficiently searching inquiry into the relevant merits issues...

Prof. Burch Posts Article on Securities Class Actions on SSRN

Posted on May 13, 2008
Professor Elizabeth Chamblee Burch (Florida State) has recently posted an Article entitled Securities Class Actions as Pragmatic Ex Post Regulation on SSRN (forthcoming Georgia Law Review). Here is the Abstract:Securities class actions are on the chopping block-again...

Prof. Rose Posts Article on Reforming Securities Litigation Reform on SSRN

Posted on May 12, 2008
Professor Amanda Rose (Vanderbilt) recently posted an Article entitled Reforming Securities Litigation Reform: A Proposal for Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5 on SSRN. Here is the Abstract:For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle...

Prof. Campbell Posts Article on Antitrust Pleading Standards after Twombly

Posted on May 07, 2008
Professor Charles Campbell has recently posted an Article entitled A 'Plausible' Showing after 'Bell Atlantic Corp. v. Twombly' on SSRN. Here is the Abstract:The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly is creating quite a stir...

Prof. Parness Posts Article on Improving Judicial Settlement Conferences

Posted on May 06, 2008
Professor Jeffrey Parness has recently posted an Article entitled Improving Judicial Settlement Conferences on SSRN. Here is the Abstract:Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences...

Prof. Ward Posts Article on Tombly

Posted on May 05, 2008
Professor Ettie Ward (St. John's) has posted an Article entitled The After-Shocks of Twombly: Will We Notice Pleading Changes? on SSRN. Here is the Abstract:Bell Atlantic Corp. v. Twombly was decided by the Supreme Court on May 21, 2007 and has already been cited more than 9400 times as of March 15, 2008...

Prof. Epstein Posts Article on Bell Atlantic v. Twombly

Posted on April 30, 2008
Professor Richard A. Epstein of the University of Chicago School of Law has recently posted an Article entitled Bell Atlantic V. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments on SSRN. Here is the Abstract:The recent Supreme Court decision in Bell Atlantic v...

Civil Rules Committee Approves Proposed Rules Amendments

Posted on April 29, 2008
At its April 7-8, 2008, meeting, the Advisory Committee on Civil Rules approved amendments to Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81, Supplemental Rules B, C, and G, and Illustrative Civil Forms 3, 4, and 60 regarding the computation of time under the rules...

Second Circuit Describes Twombly as Having Created Heightened Pleading Standard for Antitrust Claims

Posted on April 28, 2008
Per Ross v. Bank of America, N.A.(USA), --- F.3d ----, 2008 WL 1836640 (2d Cir. Apr. 25, 2008):In our view, the cardholders have pled ?actual and imminent? harms sufficient to establish Article III injury in fact. There is no heightened standard for pleading an injury in fact sufficient to satisfy Article III standing simply because the alleged injury is caused by an antitrust violation...

Prof. Roederer Publishes Article on Tort Reform

Posted on April 25, 2008
Professor Christopher J. Roederer of the Florida Coastal School of Law recently published an article entitled Democracy and Tort Law in America: The Counter-Revolution, 110 W. Va. L. Rev. 647 (2008). Here is an excerpt from the Introduction:Th[e] gap between the ?haves? and ?have nots? cuts across both socioeconomic aspects of life (education, jobs, income, mobility) and civil and political aspects of life (the ability to participate in civic and political life, through voting, volunteering, protesting, donating, etc...

Prof. Miller Posts Article on Pleading after Tellabs

Posted on April 22, 2008
Professor Geoffrey Miller has recently posted an Article entitled Pleading After Tellabs on SSRN. Here is the Abstract:In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged...

Prof. Green Posts Article on Erie

Posted on April 21, 2008
Professor Craig Green recently posted an Article entitled Erie and Problems of Constitutional Structure: A Response to Professor Clark on SSRN. Here is the Abstract:Erie has become a lamentably prevalent authority for limiting federal judicial power; I have called this phenomenon Erie's new myth...

Iowa Law Review Symposium Pieces on Summary Judgment Available on SSRN

Posted on April 14, 2008
SSRN now has available papers on Summary Judgment from a recent Iowa Law Review Symposium entitled "Procedural Justice: Perspectives on Summary Judgment, Preemptory Challenges, and the Exclusionary Rule." Here are links to those papers:Suja Thomas, The Unconstitutionality of Summary Judgment: A Status Report http://ssrn...

Prof. Nagareda Posts Article on Trans-Atlantic Civil Litigation

Posted on April 11, 2008
Prof. Richard Nagareda recently posted an Article entitled Aggregate Litigation across the Atlantic and the Future of American Exceptionalism on SSRN. Here is the Abstract:This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate basis - chiefly, though not exclusively, by way of class actions...

E.D. Wisc. Denies Motion to Dismiss Title VII Claim, Citing Swierkiewicz and Twombly

Posted on April 09, 2008
Per Kimble v. Wisconsin Dept. of Workforce Development, Slip Copy, 2008 WL 916964 (E.D. Wis. Arp. 2, 2008):Plaintiff worked as a supervisor for the Equal Rights Division (?ERD?) within the Wisconsin Department of Workforce Development, for around twenty-five years before retiring...

Prof. Floyd Publishes Article on Supplemental Jurisdiction

Posted on April 07, 2008
Professor C. Douglass Floyd recently published an Article entitled Three Faces of Supplemental Jurisdiction after United Mine Workers v. Gibbs, 60 Fl. L. Rev. 277 (April 2008). Here is an excerpt from the Introduction:In a post-Gibbs world, therefore, three competing views of the permissible scope of federal subject matter jurisdiction over non-diverse state law claims have emerged...

Prof. Steinman Posts Article on Erie Doctrine

Posted on April 03, 2008
Professor Adam Steinman has just posted his latest Article, entitled What is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), on SSRN. Here is the Abstract:As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren...

Professor Cassandra Robertson Posts Article on Federal Judges' Ability to Grant New Trials on the Weight of the Evidence

Posted on April 02, 2008
Professor Cassandra Burke Robertson has just posted her Article entitled Judging Jury Verdicts on SSRN. The piece will be published in the Tulane Law Review. Here is the Abstract:Empirical studies show that juries generally perform their job conscientiously and that the large majority of jury verdicts are accurate and fair...

Boston College Law Review Publishes Article on Bell Atlantic v. Twombly

Posted on March 27, 2008
The Boston College Law Review has just published a piece by Professor A. Benjamin Spencer (Richmond/W&L) entitled Plausibility Pleading, 49 B.C. L. Rev. 431 (2008). Here is the Abstract:Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a)(2), which requires a ?short and plain? statement of a plaintiff?s claim...

The Supreme Court has decided the

Posted on March 26, 2008
The Supreme Court has decided the case of Hall Street Associates, L.L.C. v. Mattel, Inc., No. 06-989, a case pertaining to the role of the judiciary in reviewing arbitration awards under the Federal Arbitration Act. Here is an excerpt from the Syllabus of the case:The Federal Arbitration Act (FAA), 9 U...

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