Friday, October 5, 2012
To be published in Texas Tech Law Review and posted on SSRN: Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State, by Jill Curry and Matthew Ward.
This article originated from a 2010-11 study the Federal Judicial Center conducted to examine the impact, if any, of the Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation in the United States federal courts. To examine this impact, we compared removal rates of cases to federal courts between states using notice pleading standards and states using fact pleading standards. We predicted that heightened pleading standards in federal courts would encourage plaintiffs in cases with federal and state claims, especially plaintiffs alleging a violation of their civil rights, to file in
state courts to benefit from the liberal notice pleading standard. Therefore, defendants would be more likely to remove such cases filed in notice pleading state court to federal courts to take advantage of the newly announced heightened pleading standard. After reviewing existing commentary and existing empirical research about the impact of Twombly and Iqbal, we explain the methodology for our removal study, present the results of a preliminary study to examine removal rates of four states, and subsequently present the results of our expanded examination of removal rates of all fifty states and the District of Columbia. However, the results demonstrate that these expectations were not met. There was no systematic increase in the rate of removal after Twombly and Iqbal and the effect was not more pronounced in notice pleading states compared to fact pleading states, questioning the assertion that cases are being diverted from federal court to state courts due to heightened pleading standards.
Prof. Louis Kaplow (Harvard) has posted on SSRN a draft of his article, Multistage Adjudication, which will be published in the Harvard Law Review. Here’s the abstract:
Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Iqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.
(Hat Tip: Larry Solum)
Thursday, October 4, 2012
Prof. Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, Forum Non Conveniens as a Jurisdictional Doctrine. Here’s the abstract:
In Forum Non Conveniens as a Jurisdictional Doctrine, I reconsider the doctrine of forum non conveniens from a jurisdictional perspective and, by so doing, challenge the current approach to and understanding of that doctrine. As a solution, I offer a novel, statutory-based framework designed to ameliorate an array of problems generated by the currently accepted model.
Wednesday, October 3, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Lee Epstein entitled Introducing the Court. It reviews Linda Greenhouse’s recent book, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012). The review begins:
The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.
As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.” (p. 87).
Monday, October 1, 2012
Parenthetically, there are some interesting exchanges for folks who are teaching (or taking) 1L civil procedure, on topics such as (1) waiver of defenses by omitting them from pre-answer motions [pp.3-4], (2) federal question jurisdiction under 1331 [pp.17-20]; (3) Erie and general common law [pp.18-19]; and (4) the 2011 personal jurisdiction decisions [p.54].
Conference: Advocacy Under the Federal Rules of Civil Procedure at the University of Kansas, November 8-9, 2012
The Kansas Law Review in conduction with the Shook, Hardy & Bacon Center for Excellence in Advocacy will host "Advocacy Under the Federal Rule of Civil Procedure After 75 Years"
• Professor Richard Marcus – Horace O. Coil Chair in Litigation at University of California Hastings College of the Law; Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S.
• John Barkett – Partner, Shook Hardy & Bacon L.L.P, Miami office; ABA Section of Litigation’s liaison member to the Federal Civil Rules Advisory Committee.
• Professor Steven Gensler – Professor, Associate Dean of Research and Scholarship at University of Oklahoma College of Law; Member of the United States Judicial Conference Advisory Committee on Civil Rules; Former Supreme Court Fellow at the Administrative Office of the United States Courts
• Professor Robert Burns – Professor of Law at Northwestern University School of Law; Program Director and Section Leader for the National Institute for Trial Advocacy.
• Honorable Lee H. Rosenthal – U.S. District Court Judge for the Southern District of Texas, Houston Division; Chair of the Judicial Conference Committee on the Rules of Practice and Procedure; Former Chair of the Judicial Conference Advisory Committee on Civil Rules.
• Rebecca Kourlis – Founder and Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver; Former Justice of the Colorado Supreme Court.
• John H. Martin – Partner, Thompson & Knight LLP; Fellow, American College of Trial Lawyers; Fellow, International Academy of Trial Lawyers
• Kelley Sears – Senior Vice President and Deputy General Counsel, Wal-Mart
• Honorable David J. Waxse – Magistrate Judge for the United States District Court, District of Kansas; Former Chair of Kansas Commission on Judicial Qualifications; Past-President of the Kansas Bar Association.
All are invited to attend the conference. Additionally, some funds are available to sponsor room and board faculty wishing to attend. Please contact Prof. Lou Mulligan at email@example.com