Friday, March 11, 2011

Witness Statements from Congressional Hearing on the Lawsuit Abuse Reduction Act

Statements from the three witnesses at today’s congressional hearing on H.R. 966 (covered earlier here) are now available. Here are the links:

Elizabeth A. Milito
NFIB Small Business Legal Center

Lonny Hoffman
University of Houston Law Center

Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.


March 11, 2011 in Current Affairs, Federal Rules of Civil Procedure, In the News | Permalink | Comments (0)

Thursday, March 10, 2011

Congressional Hearing On Legislation To Amend FRCP 11: The Lawsuit Abuse Reduction Act (H.R. 966)

The House Judiciary Committee’s Subcommittee on the Constitution is holding a hearing tomorrow (March 11th) at 10:00 a.m. on H.R. 966. The legislation is entitled the "Lawsuit Abuse Reduction Act of 2011," and its purposes include "[t]o amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability."

Information on the hearing is available here, and the text of the bill can be found here. Here is the witness list:

Elizabeth A. Milito
NFIB Small Business Legal Center

Professor Lonny Hoffman
University of Houston Law Center

Mr. Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.

If you’re in D.C. and want to check it out, the location is 2141 Rayburn House Office Building.


March 10, 2011 in Current Affairs, Federal Rules of Civil Procedure, In the News | Permalink | Comments (0)

Wednesday, March 9, 2011

Release of Federal Judiciary Caseload Statistics

The Administrative Office of the U.S. Courts has released its latest data (through 6/30/2010) on caseloads in the U.S. Courts of Appeals, District Courts, and Bankruptcy Courts. The statistical tables are available here.


(Hat Tip: Blog of the Legal Times)

March 9, 2011 in Federal Courts | Permalink | Comments (0)

Tuesday, March 8, 2011

Campos and Erichson Debate the Future of Mass Torts on PENNumbra

PENNumbra, the online companion to the Penn Law Review is hosting a debate about the procedural future of mass torts between Sergio Campos (University of Miami) and Howard Erichson (Fordham University). 

From Sergio's opening statement:

The evolving case law on aggregate litigation, based largely on notions of notice and due process (embodied in “day in court” principles), has been met with significant criticism on both sides by reformers who claim that the system is inherently unfair or encourages wasteful litigation.

In The Future of Mass Torts... And How to Stop It, Professor Sergio Campos argues for a change in course from the current treatment of mass torts. The current model of providing each individual plaintiff a “day in court,” he suggests, ultimately undermines plaintiffs’ interests by dividing the potential recovery—and thus the litigation incentives—among the plaintiffs while leaving the defendant with the full incentive to avoid litigation. Although the Supreme Court has recently upheld plaintiffs’ right to individual litigation, due process need not be inherently inflexible. By looking to older precedent, such as Mullane v. Central Hanover Bank & Trust Co., Campos supports a “compelled, collective ownership” of claims by procedures such as multi-district litigation or the mandatory class action. Although this model may infringe on “litigant autonomy,” Campos argues that this is ultimately necessary to best protect the interests of mass tort plaintiffs.



March 8, 2011 in Class Actions, Mass Torts, MDLs, Recent Scholarship | Permalink | Comments (0)

Monday, March 7, 2011

Discussion of Pleading Standards in Today's SCOTUS Decision (Skinner v. Switzer)

Readers following federal pleading standards after Twombly and Iqbal may be interested in a snippet from today's Supreme Court opinion in Skinner v. Switzer. The opinion cites neither Twombly nor Iqbal but does cite the Court’s pre-Twombly pleading decisions Scheuer and Swierkiewicz. Here’s the relevant paragraph:

Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was “not whether [Skinner] will ultimately prevail” on his procedural due process claim, see Scheuer v. Rhodes, 416 U. S. 232, 236 (1974), but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002). Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure §1219, pp. 277–278 (3d ed. 2004 and Supp. 2010).


March 7, 2011 in Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (2)

Today's SCOTUS Decision in Skinner v. Switzer: Use of Section 1983 to Compel DNA Testing of Crime-Scene Evidence

Today the Supreme Court issued its decision in Skinner v. Switzer, holding by a 6-3 vote that a § 1983 suit is a proper vehicle for compelling DNA testing of crime-scene evidence. Justice Ginsburg’s majority opinion (joined by Chief Justice Roberts and Justices Scalia, Breyer, Sotomayor, and Kagan) explains:

In Wilkinson v. Dotson, 544 U. S. 74 (2005), we comprehensively surveyed this Court’s decisions on the respective provinces of §1983 civil rights actions and §2254 federal habeas petitions. Habeas is the exclusive remedy, we reaffirmed, for the prisoner who seeks “immediate or speedier release” from confinement. Id., at 82. Where the prisoner’s claim would not “necessarily spell speedier release,” however, suit may be brought under §1983. Ibid. Adhering to our opinion in Dotson, we hold that a postconviction claim for DNA testing is properly pursued in a §1983 action. Success in the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or inconclusive. In no event will a judgment that simply orders DNA tests “necessarily impl[y] the unlawfulness of the State’s custody.” Id., at 81. We note, however, that the Court’s decision in Osborne [129 S. Ct. 2308 (2009)] severely limits the federal action a state prisoner may bring for DNA testing. Osborne rejected the extension of substantive due process to this area, and left slim room for the prisoner to show that the governing state law denies him procedural due process.

Justice Ginsburg described Skinner’s due process claim as follows: “He does not challenge the prosecutor’s conduct or the decisions reached by the [state court] in applying Article 64 to his motions; instead, he challenges, as denying him procedural due process, Texas’ postconviction DNA statute ‘as construed’ by the Texas courts.”

Justice Thomas filed a dissenting opinion, joined by Justices Kennedy and Alito. He writes:

We have not previously addressed whether due process challenges to state collateral review procedures may be brought under §1983, and I would hold that they may not. Challenges to all state procedures for reviewing the validity of a conviction should be treated the same as challenges to state trial procedures, which we have already recognized may not be brought under §1983. Moreover, allowing such challenges under §1983 would undermine Congress’ strict limitations on federal review of state habeas decisions. If cognizable at all, Skinner’s claim sounds in habeas corpus.


March 7, 2011 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (3)