Friday, February 23, 2007

In Case you missed it

The week in review:

  • USSCT Update: PHILLIP MORRIS USA v. WILLIAMS The Court held that the Due Process Clause forbids a jury from partially basing a punitive-damages award upon its desire to punish the defendant for harming persons who are not before the court.  For Aaron Streett's Supreme Court newsletter, click HERE.

  • Guantanamo Bay Detainee Case from D.C. Circuit: Federal courts do not have jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba.  In depriving the courts of jurisdiction over the detainees’ habeas petitions, Congress did not violate the Suspension Clause.

  • Pleading fraudish claims with particularity: The Seventh Circuit affirmed a dismissal based on the particularized-pleading requirement of FRCP 9(b) regarding averments of fraud, even though the plaintiff did not plead "fraud" as a cause of action.  "Although claims of interference with economic advantage, interference with fiduciary relationship, and civil conspiracy are not by definition fraudulent torts, Rule 9(b) applies to 'averments of fraud' not claims of fraud, so whether the rule applies will depend upon the plaintiffs' factual allegations."

  • Britney Spears shaves her head.  (Link to image mercifully omitted).


February 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 22, 2007

A Must Listen

Click the link at the bottom of this post to listen to my interview with Prof. Stephen I. Vladeck on his forthcoming article, The Increasingly "Unflagging Obligation":  Federal Jurisdiction after Saudi Basic and Anna Nicole, which will be part of the Tulsa Law Review's Supreme Court Symposium this summer. 

This interview should intrigue anyone even remotely interested in federal jurisdiction (not because of my questions but because of his answers).  Stephen discusses what he calls the Supreme Court's "increasingly felicitous" view of federal jurisdiction.  What's motivating the Supreme Court to expand federal jurisdiction and what are the consequences? 

A big thank you to Prof. Vladeck for giving the interview.  I should also say he had no idea he would be the inaugural interviewee when he said this.   

We plan to post a new interview every Thursday, with topics ranging from upcoming articles to teaching ideas to practitioner views on hot procedural issues.  If you have an idea for an interview or an article that needs the attention of both our readers, don't hesitate to tell us about it.

Download interview.mp3 (The interview is 16' 33" in length and should take about 90 seconds or so to download.)



February 22, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 21, 2007

A confession ... then a case

Before my first post, I suppose I should confess:  I'm a B-list CivPro Prof.  Although I teach Federal Courts regularly, I only teach CivPro while Jeremy is sabbaticalling.  There's enough of an overlap between the courses to encompass most of what I'll post, but I hope neither of our readers mind when I stray.

In re Hot-HedAn ostensibly insignificant recent case from the 5th Circuit.

At first, the litigation proceeded according to the forum-fight template.  Plaintiff filed in state court.  Defendant removed.  Plaintiff moved to remand, arguing that the district court had no subject-matter jurisdiction.  The court denied the motion to remand. 

From the 5th Circuit's (per curiam but to-be-released-for-publication) opinion, one would think that the next procedural step also fit the template--Plaintiff petitioned the 5th Circuit for a writ of mandamus ordering the district court to remand the case.  The extent of the 5th Circuit's analysis regarding the interlocutory challenge disguised as an original proceeding was:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." In this case, a writ is an appropriate means by which we may review the denial of the motion to remand: “When the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.”

The court granted the petition in part and vacated the order denying the motion to remand.  Is the court suggesting that petitioning for mandamus is, as a "matter of course," the a proper procedure for challenging a district court's interlocutory ruling that rejects a challenge to subject-matter jurisdiction?  Without regard to whether the challenger has an adequate remedy by appeal or any exceptional circumstances?   --RR   


February 21, 2007 | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 20, 2007

Where to Start?

What topic do you cover first in Civil Procedure? 

This is an issue I’ve struggled with since leaving practice for teaching a few years back.  On the first day of class, I tell my students that learning Civil Procedure is difficult because the topics are interrelated.  A student can’t fully appreciate the importance of forum choice without understanding its effect on the law to be applied to the case.  On the other hand, sometimes I think a primer on the traditional approach to choice of law might help students unravel Pennoyer v. Neff.   

The problem, of course, is that we have to start somewhere.  We have to pick our poison.  For better or worse, my poison is territorial jurisdiction.  I spend the first two class days providing the students with an overview of the litigation process—my “anatomy of a lawsuit” lecture.  Then I assign Pennoyer and watch panic fill their eyes.  My students are smart, but Pennoyer makes them feel as though they are reading Greek. 

Oddly enough, I suppose that’s why I begin with Pennoyer—it makes a powerful impression.  Pennoyer teaches students that law school is damned hard and different from anything they’ve done before.  Pennoyer won’t tolerate a student simply taking what he wants from it and leaving the rest. It requires a struggle—a fitting metaphor for law school in the first week. 

Then again, starting with territorial jurisdiction has its downsides.  I’ve discussed this issue with other CivPro Profs, and many of them advocated starting with pleading (or even judgments) rather than Pennoyer.  Thoughts?


February 20, 2007 | Permalink | Comments (4) | TrackBack (0)

Monday, February 19, 2007


Welcome to the Civil Procedure Prof Blog.  Our hope is that this blog will become a sort of Civil Procedure “town square” for those with a passion for this area of the Law—a place where we can discover and discuss the latest developments in our field, share teaching advice, and bounce scholarship/research ideas off one another.  While we do want to provide a forum to discuss major developments, we have no plans to create a daily digest for all cases CivPro.  We’ll start the conversation but hope you’ll continue it via the comments section for each post.  We also invite you to steer the conversation.  If you think there’s something that needs our attention—such as a recent opinion or an interesting new article (even if it‘s your own)—e-mail us, and we’ll make it the subject of a post.  We hope you’ll add a quick visit to the Civil Procedure Prof Blog to your daily routine.  Let the conversation begin. 

February 19, 2007 | Permalink | Comments (1) | TrackBack (0)