Civil Procedure & Federal Courts Blog

Vladeck on Richman and Reynolds on Appellate Injustice

Over on the Courts Law section of JOTWELL is an essay by Steve Vladeck entitled Appealing to Injustice. Steve reviews Bill Richman and Bill Reynolds' recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford Univ. Press 2013).

 

Epstein on Black & Spriggs on the Depreciation of U.S. Supreme Court Precedent

Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.

 

 

Wasserman on Redish and Aronoff on Judicial Selection and Due Process

Over on the Courts Law section of JOTWELL is an essay by Howard Wasserman entitled Judicial Retention Meets Due Process.

It reviews a recent article by Martin Redish and Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism, which will appear in the William & Mary Law Review. 

 

 

ABA Pretrial Practice and Discovery Committee Spring Newsletter

The Pretrial Practice and Discovery Committee of the Section of Litigation of the American Bar Association has issued its

Spring 2014 newsletter.

 

Spring 2014, Vol. 22 No. 2

TABLE OF CONTENTS

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Articles »

The Changing Landscape of General Jurisdiction Post-Bauman

By Adam W. Braveman

This decision will have an immense impact on a foreign corporation's amenability to bring suit in U.S

courts.

 

"Self-Serving Testimony" and Summary Judgment Standards

By Jeffrey G. Close

Is there a split between the Fifth and Seventh Circuits?

 

The Problem of the Old Deposition and a New Party at Trial

By Michael Lowry

A deposition needs to be admissible, and that may depend on who is a party at the time of trial.

 

Supreme Court's CAFA Decision Changes Law in Fifth Circuit

By Paul Thibodeaux and Danny Dysart

The Court's decision on CAFA removal of parens patriae mass-action suits and how it impacts future

mass-tort litigation.

 

News & Developments

»

NV Court Expands Mandate of Production of Memory-Refreshing Documents

The mandate now applies to depositions as well as in-court hearings.

 

Considering a 30(b)(6) Deposition to Explore E-Discovery Methods?

A couple of recent decisions address a party's ability to use a Rule 30(b)(6) deposition to inquire about an

opponent's e-discovery methodology.

 

Supreme Court Approves Amendments to Hearsay Rules

Professor Colin Miller's EvidenceProf Blog reports on the Supreme Court's approval of amendments to the Federal Rules of Evidence that deal with hearsay: 801(d)(1)(B) (prior consistent statements), and 803(6), (7), and (8) (burden of proof in showing untrustworthiness of records of regularly conducted activities and public records).  The amendments will take effect on December 1, 2014 unless Congress takes other action.

Coleman on Reinert on Meritless Litigation

Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Recognizing the Value of Failure in Civil Litigation. It reviews a recent article by Alex Reinert (Cardozo), Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. (forthcoming).

 

Tidmarsh on Civil Procedure Reforms in the U.K.

Now on the Courts Law section of Jotwell is a review by Jay Tidmarsh (Notre Dame) entitled Jackson.

It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson. 

 

Coleman on the Proposed Amendments to the FRCP Discovery Rules

Over on the ACS blog is a post by Prof. Brooke Coleman (Seattle) entitled The Real Cost of Litigation Reform: Justice, Not Discovery Costs, Are at Stake, which discusses the current proposals to amend the discovery provisions of the Federal Rules of Civil Procedure. It concludes:

Our litigation system necessarily costs money. But, the purpose of the system is to achieve justice. No doubt, the costs should be contained as much as possible, but that containment should be achieved without sacrificing basic access to our federal system of courts. The proposed discovery rules incentivize producing parties to hold back information that is necessary to get to the truth, and they further burden requesting parties with proving that they need materials before they can even know what that information is. These proposals may make CEOs and general counsels feel more sanguine about the bottom line of their litigation costs, but they should provoke a great amount of dread in the rest of us. Corporations are less likely to be held accountable for their misdeeds if these changes are made. That cost alone renders the current litigation reform proposals unjustified.

 

Still More on the Second Circuit's Order in the Stop-and-Frisk Case

Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:

• Emily Bazelon, Slate: Shut Up, Judge!
• Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
• Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
• The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)

More coverage here.

More on the Second Circuit's Order in the Stop-and-Frisk Case

We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:

• Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
• Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
• Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
• Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps

 

Pfander on Ewald: Article III and the Committee of Detail

Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander (Northwestern) entitled James Wilson, the Committee of Detail, and the Federal Judiciary. It reviews a recent article by William Ewald (U. Penn.), The Committee of Detail, 28 Const. Comment. 197 (2012).

 

Announcing A New Blog: Law Deans on Legal Education

Dean Richard Gershon (University of Mississippi School of Law), Dean Paul McGreal (University of Dayton School of Law), and I are pleased to announce a new blog devoted to legal education from the perspective of law deans. This blog, called "Law Deans on Legal Education," is part of the Law Professor Blog Network.  This blog will provide information, opinions, and thoughts about a wide range of topics and issues related to legal education and the legal profession. We hope you find this new blog informative and useful.  The Law Deans on Legal Education Blog is here. 

Eighth Circuit Opinion on Iqbal and Twombly

The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.

Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”  

Here are some excerpts from Judge Colloton's opinion:  

Continue reading

Erie and Magic Words

Now available on the Florida Law Review Forum is my short piece, Magic Words and the Erie Doctrine. It’s a response to a recent article by Sergio Campos, Erie as a Choice of Enforcement Defaults.

It’s a quick read at <3 pages, where “<3” actually means “less than 3” as opposed to a sideways emoticon heart.

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Campos on Jones on Judicial Review and the Lost Constitution

Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos (Miami) entitled Back to the Future. It reviews a recent article by Robert Jones (Northern Illinois), Lessons from a Lost Constitution, 27 J. L. & Politics 459 (2012).

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Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal

Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.

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Balkin on Erie

Over at Balkinization, Prof. Jack Balkin (Yale) has a post entitled Erie Railroad v. Tompkins and the New Deal Constitution. It begins:

Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products.  The video is available here.  Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55.  I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.

Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint.  Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent.  If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different.  It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.

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Tidmarsh on Lemos & Hensler on Adequate Representation in Parens Patriae Suits by State A-Gs

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).

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Mullenix on Sachs on Personal Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix (Texas) entitled Fixing Personal Jurisdiction. It reviews a recent article by Stephen Sachs (Duke), How Congress Should Fix Personal Jurisdiction.

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Epstein on Comcast v. Behrend

Professor Richard Epstein (NYU) has a post on PointofLaw.com entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:

The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.

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