Friday, February 29, 2008

Mandatory Rules

It's submission season, and we're trying to keep up with links to work that will interest our readers.  The following two pieces by Prof. Dodson fit that category and are accompanied by abstracts:

Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article I recently published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity has led courts and commentators to overlook the fact that nonjurisdictional rules need not be the mirror inverse but may instead have some of these attributes of jurisdictionality. A nonjurisdictional rule might, for example, be mandatory, meaning that it is subject to waiver or forfeiture, but if properly raised by the party for whose benefit it lies, it has the jurisdictional-like attribute of being immune to equitable exceptions. This Article is the first to take a hard look at nonjurisdictional rules and, particularly, mandatory rules. It first argues that they have an important normative role to play in our procedural system. It then shows that, in practice, mandatory but nonjurisdictional characterizations may help explain a number of perplexing doctrines. As an example, the Article demonstrates how such a characterization can help reconcile the otherwise maddeningly inconsistent doctrine of state sovereign immunity. Ultimately, the Article suggests that a greater appreciation for mandatory rules both can benefit the procedural system and can broaden our view of what salutary roles nonjurisdictional rules can play.

In Bowles v. Russell, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional. In a short essay published in Northwestern University Law Review's Colloquy, I critiqued that decision, suggested a better approach, and previewed some of the difficulties that the decision may cause for the future. Professors Perry Dane and Beth Burch and Mr. King Poor, Esq. responded. This short essay replies to their responses and develops additional reasons for characterizing the time to file a notice of appeal as mandatory but nonjurisdictional.


February 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2008

Rooting for the Restyled Rules

I invite you to read my new article Rooting For The Restyled Rules (Even Though I Opposed Them).  The article dovetails nicely, I think, with discussions we had here with Prof. Hartnett and here with Prof. Parker about the Style Project.  Please email me any comments you have, and I'll be sure to thank you in an asterisked footnote.  The abstract follows--Counseller

The Restyling Amendments of December 1, 2007 made top-to-bottom changes to the text of the most important and successful set of rules in the American civil justice system. These amendments are the culmination of more than fifteen years of work by members of the Rules Committees and their style consultants.  The goal of these Restylists was to redraft the Rules to improve style and clarity without changing meaning.  In short, they sought to achieve “clarity without change.”  The Restylists are confident they achieved this goal, but not everyone shares their confidence.  Critics worry that the Restylists made unwanted changes to the law of procedure, despite their best efforts to avoid them.  Critics also believe that improving merely the style and clarity of Rules did not justify  the costs of transitioning from one set of rules to another and that the Restylists may have sacrificed other more important reforms on the altar of the Style Project.  I have never been certain that the criticisms are accurate, but I decided that an improvement in the mere style of the Rules did not justify much uncertainty.  For this reason, I joined other critics in opposing the enactment of the Restyling Amendments in an essay titled The Restyling of the Federal Rules of Civil Procedure:  A Solution in Search of a Problem.  Now that the Restyling Amendments are effective, however, I am rooting for their success and urging other critics to do the same.  Whether the Restyling Amendments should have been adopted in the first place is now moot.  The issue now is what we can do to maximize the chance that the Restyled Rules will succeed, despite their faults.  This year alone, the Restyled Rules will affect the rights and obligations of hundreds of thousands of litigants. We must hope and work to ensure that the Rules function as their supporters believed they would rather than as critics like me feared they would.  This article is a call to optimism and action.  It calls for critics to be optimistic that the Rules will not be as problematic as we feared and provides the rationale for that optimism.  This article also calls for action on the part of the Advisory Committee to eliminate the known and undesirable substantive changes resulting from the Restyling.  This critical support and Advisory Committee action will help to ensure that the Federal Rules of Civil Procedure are a model of both clarity and procedure.



February 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2008

Twombly scholarship

The hot topic this submission season appears to be pleading post-Twombly.   Below are the links to and abstracts of some recent works:

  • Professor Lonny Hoffman, Burn Up the Chair with Unquenchable Fire:  What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings.
    • This paper addresses the most talked about “new” tool for managing the burdens of modern litigation: judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  The issue has generated an astonishing amount of recent attention in courts and academic circles, in large part due to the Supreme Court’s decisions in 2005 in Dura Pharms. Inc. v. Broudo and subsequent decisions in the early summer of 2007 in Bell Atlantic v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd.  In this paper, I advance the novel argument that any coherent account of judicial pleading power requires going beyond the law of pleading.  I argue that bringing awareness to doctrinal linkages with pleading practice can inform normative thinking about the appropriate limits of judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  To be more specific, I argue that we can profitably focus attention on two doctrinal intersections with pleading practice: one obvious; the other less so, at least at first blush.  The first and most significant point of intersection is with summary judgment.  The second intersection, between Rule 8 and removal, though of less central importance than the linkage with summary judgment, can also help order thinking about appropriate limits on judicial power to enforce pleading norms.  The subject of this work lies at the core of the most predominant thematic tension running through procedural law: balancing access to justice against efficiency.  Ultimately, how and where we mark the scope of judicial pleading power will matter more to prospective claimants (and prospective defendants) than just about any other debate over procedural justice with which courts, rulemakers and theorists have been engaged.  See Phillips v. County of Allegheny, ___ F.3d ___, 2008 WL 305025 (3d. Cir., Feb. 5, 2008) (“Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.”).

  • Prof. Charles Campbell, A "Plausible" Showing After Bell Atlantic Corp. v. Twombly
    • The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Now a complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Only decided last May, Bell Atlantic has been cited in over 3,700 cases.

      Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly.” Just what is a plausible “showing that the pleader is entitled to relief” under Rule 8(a)(2)?

      I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that “a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years. Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility” requirement in all respects.

      The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader’s claim to make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

  • As a Twombly resource, don't forget about the Twombly bibliography Prof. Scott Dodson posted recently at Prawfsblag.  --RR

February 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2008

Federal Rules Reign Supreme

Last Wednesday, the Supreme Court handed down its opinions in Riegel v. Medtronic, Rowe v. New Hampshire Motor Transp. Assoc., and Preston v. Ferrer.  Over at the SCOTUS Blog, you can read more on Riegel here and more on Rowe here.  The common theme in all three cases, as discussed here in an NPR story, is that the Supreme Court overwhelmingly favors an interpretation of federal rules that allows them to prevail over state rules.  Big business is happy because they have less to worry about from state regulation while state officials inundated with arguments for preemption probably aren't.--Counseller

February 25, 2008 | Permalink | Comments (0) | TrackBack (0)