September 11, 2009
Recent Commentary on Ashcroft v. Iqbal
Professors Kevin Clermont (Cornell) & Stephen Yeazell (UCLA) have posted on SSRN their article Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. ___ (forthcoming Mar. 2010). Here's the abstract:
The U.S. Supreme Court has revolutionized the law on pleading, by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions do more than redefine the pleading rules: by inventing a test for the threshold stage of a lawsuit, they have destabilized the entire system of civil litigation. The destabilization should rekindle a wide conversation about fundamental choices in designing our legal system. Those choices are debatable. The bone picked with the Court is not that it has taken the wrong path for pleading, but that it blazed a new and unclear path alone and without adequate warning or thought. The point of this Article is that wherever you stand on pleading - even if you think the federal litigation system is wildly out of control with many frivolous suits, or instead if you think the role of pleading should be further purified to eliminate all of its screening function - you should find these recent decisions lamentable.
The Article describes the Court’s choice to shift from minimal notice pleading to a robust gatekeeping regime, and next gives some reasons for thinking the Court’s course on this important matter may promise the worst of both worlds. Then, after some thoughts on the Court’s possible motivation, it briefly offers some ways out of the bog.
This week on Concurring Opinions, Jon Siegel (George Washington) has two very interesting posts on the consequences of Iqbal:
Finally, I'll mention that the folks at Concurring Opinions were nice enough to allow me to post some thoughts on Iqbal last month. See Re-reading Iqbal (a new take on the 12(b)(6) wars), which summarizes some of the arguments I make in my recent article The Pleading Problem. Here's my abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.
PS: Yes, I managed to hold out for an entire 48 hours before indulging in transparent self-promotion as an editor of this blog. The over-under was 42.5.
PPS: Actually, that's the O/U for this weekend's Broncos-Bengals opener. Vegas hasn't yet taken an interest in law professor blogging, which is probably for the best.
If you were worried about laptops in the classroom . . .
Judges are also worried about jurors with technology. As law.com reports via The Recorder, a new rule in a California state court "would remind potential jurors not to blog, Tweet or conduct Internet research about cases."
September 10, 2009
First Circuit Decision on FRCP 51 and Jury Instructions
In last week's decision in DeCaro v. Hasbro, Inc., No. 09-1054, 2009 WL 2767296, 2009 U.S. App. LEXIS 19707, the U.S. Court of Appeals for the First Circuit weighed in on FRCP 51(b)(1)'s requirement that "[t]he court must inform the parties of its proposed instructions . . . before instructing the jury and before final jury arguments." The court held that "a district court is under no obligation to give the parties the full text of its intended instructions at any time before the jury is charged." It rejected the argument that the 2003 amendments to Rule 51 intended to change prior practice on this issue. (The court acknowledged that Rule 51 was further amended pursuant to the 2007 restyling, but stressed that "the 2007 revisions were of a purely stylistic nature.")
The decision also addresses the provisions in Rule 51(c)(1) and 51(d)(1)(B) regarding objections to jury instructions.
For additional coverage, see the National Law Journal.
Using Empirical Methods in Procedure Scholarship
Two new articles posted to SSRN employ quantitative empirical methods in researching issues involving the federal courts:
Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation
Margaret S. Williams (Federal Judicial Center)
Tracey E. George (Vanderbilt University -- School of Law)
This paper provides the preliminary results of a convenience sample of ninety MDL orders from 2003 to 2009. The study investigates the rationale for transfer of federal civil litigation by the Panel, where cases are assigned, and to whom. The purpose of the analysis is to identify factors that explain past transfers by the Panel, both to particular districts and judges. The results provided here represent a draft paper submitted to the Conference on Empirical Legal Studies for possible presentation at its annual meeting in November 2009.
Public Perceptions of the Lower Federal Courts
Sara C. Benesh (University of Wisconsin - Milwaukee)
Amy Steigerwalt (Georgia State University)
Nancy Scherer (Wellesley College)
The lower federal courts decide cases every day that are essential to a democracy and yet, lower federal court judges are not accountable to the people nor are their decisions often reversed (or even reviewed) by the U.S. Supreme Court. Their decisions are not self-implementing. Hence, our confidence in these local federal courts -- to make the right decisions and to decide cases fairly -- is essential to upholding the rule of law. But, we know little about levels of confidence in these courts or knowledge about these courts. This article seeks to inform on both of those points via use of a national randomly generated survey.
Iqbal Symposium at Penn State
Nancy Welsh (nxw10@DSL.PSU.EDU) of Penn State, Dickinson School of Law has announced the following conference:
On Friday, March 26, 2010, Penn State will hold a symposium addressing
the Supreme Court's recent decision in Ashcroft v. Iqbal. There will be
* One panel will address Iqbal's implications for the role of the
courts and judges in providing American society with both the
opportunity for redress of harms and a common law-based approach to the
development of law.
* A second panel will explore the majority's reference to
purposeful discrimination and what it signals about contemporary
understandings of race in America.
* The third panel will examine Iqbal's implications for Section
1983, including the decision's potential impact on supervisory
liability, qualified immunity and the behavior of agency officials
operating under adverse conditions.
At this point, presenters include Jeff Rachlinski (Cornell), Natsu Saito
(Georgia State), Mark Brown (Capital), and several members of Penn
State's faculty: Victor Romero, Kit Kinports, Gary Gildin, Shoba Wadhia,
Ray Campbell, and myself. The slate of presenters is likely to expand.
Papers will be published in a symposium issue of the Penn State Law
Review. The symposium will be held at Penn State's Carlisle,
Pennsylvania, facility. Students, faculty and guests in the University
Park facility also will be able to participate (and engage in one-on-one
sidebar discussions) through the pervasive and advanced system of
videoconferencing that links both locations in our unitary law school
We would welcome your attendance.
September 9, 2009
Stand in the Place Where You Live: Standing decision from Brooklyn
Back in March, Judge Korman issued an opinion ordering the FDA to allow 17-year-olds access to Plan B (the "morning after pill"). 603 F.Supp.2d 519 (E.D.N.Y. 2009). Following that ruling, three pro-life Christian groups sought to intervene in the lawsuit to challenge the ruling. Last week, Judge Korman ruled that these groups do not have standing to challenge the lawsuit.
Tummino v. Hamburg, 2009 WL 2762822 (E.D.N.Y.)
Number 9, Number 9, Number 9: Some Significant 9th Circuit Decisions on Federal Preemption
On this numerically significant day (09/09/09), readers may be interested in the 9th Circuit’s recent decisions in Saher v. Norton Simon Museum of Art at Pasadena, No. 07-56691, 2009 WL 2526676, 2009 U.S. App. LEXIS 18604, and Movsesian v. Victoria Versicherung AG, No. 07-56722, 2009 WL 2516336, 2009 U.S. App. LEXIS 18737. These decisions struck down two provisions in the California Code of Civil Procedure on preemption grounds:
(1) Cal. Civ. Proc. Code § 354.3 had extended the statute of limitations (until Dec. 31, 2010) for actions for the recovery of Holocaust-era art. Saher held that this provision "intrudes on the power to make and resolve war, a power reserved exclusively to the federal government by the Constitution."
(2) Cal. Civ. Proc. Code § 354.4 had similarly extended the statute of limitations for claims arising out of life insurance policies held by victims of the Armenian Genocide. Movsesian held that this provision "conflicts with Executive Branch foreign policy, and thus, is preempted."
P.S. Apologies to the Beatles for this post’s title. See here.
Welcome to the Civil Procedure & Federal Courts Blog
Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational.
We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us.