Civil Procedure & Federal Courts Blog

Professor Nathenson Posts New Civil Procedure Resources For the Bar Exam

Know anyone studying for the bar exam who needs help in Civil Procedure?  My esteemed colleague, Professor Ira Nathenson (a member of the Executive Committee of the AALS Section of Civil Procedure, as well as its webmaster and co-manager of the CivProMentor listserv), has recently posted some fine resources on his website. 

Professor Nathenson’s site includes a Resources page for Civil Procedure on the Multistate Bar Examination (MBE).  The resources include numerous Civil Procedure YouTube videos as well as problem sets, explanations, flowcharts, and handouts.  (If you thought that the Erie doctrine could not be reduced to a flow chart, check out his Coggle flowchart here.) 

The substantive materials are grouped by topic (such as subject-matter jurisdiction, personal jurisdiction, joinder, and much more), allowing you to zero in on Civ Pro issues of interest. Many of the YouTube videos are annotated, pointing you to related resources. The site also includes an overview of which Civ Pro topics topics are more likely to be tested. 

As most people in the US legal world know by now, federal Civil Procedure was added to the Multistate Bar Examination only recently.  It was first tested on the MBE during the February 2015 administration.  Professor Nathenson's excellent materials should help to ease the panic for some new graduates preparing for the bar. 

Coleman PrawfsBlawg Post on Amending Rule 23

Brooke Coleman has a post today over on PrawfsBlawg called "Civil Rule 23 -- To Amend or Not to Amend?"

She summarizes three of the “conceptual sketches” that the Rule 23 Subcommittee of the Civil Rules Advisory Committee is currently considering.

Campos on Davis on Standing and State Action

Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).

 

 

Mullenix on Robreno on Litigation's Black Hole

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).

 

 

Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)

Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.

These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”

Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”

I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement 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.”

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Tidmarsh on Zimmerman on Presidential Settlements

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh entitled The Settler-in-Chief. Jay reviews Adam Zimmerman’s recent article, Presidential Settlements, 163 U. Pa. L. Rev. (forthcoming 2015).

 

 

 

 

Erbsen on Klerman & Reilly on Forum Selling

Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen entitled Judicial Competition for Case Filings in Civil Litigation. Allan reviews a recent article by Daniel Klerman & Greg Reilly, Forum Selling, the current draft of which you can find on SSRN.

 

 

Ohio Supreme Court Decision on Standing & Jurisdiction

I have a guest post over at Legally Speaking Ohio about an interesting Ohio Supreme Court case on standing and jurisdiction. The decision is Bank of America v. Kuchta, which Marianna Bettman aptly called “a field day for civil procedure geeks.”

 

 

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

 

 

Leong on Rush on Federalism and Judicial Diversity

Now available on the Courts Law section of JOTWELL is an essay by Nancy Leong entitled The Federalism Argument for Judicial Diversity. Nancy reviews a recent article by Sharon Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, which was published in the Missouri Law Review. 

 

 

 

Tushnet on the Federal Courts Junior Scholars Workshop

Now available on the Courts Law section of JOTWELL is an essay by Mark Tushnet discussing The Federal Courts Junior Scholars Workshop. Some interesting thoughts on faculty workshops generally, as well as trends in federal courts scholarship.

 

Mulligan on Preis on the Relationship Between Federal Causes of Action, Rights, Remedies, and Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Lou Mulligan entitled Federal Causes of Action and Everything that Follows.

Lou reviews a recent article by Jack Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, which is forthcoming in the Florida Law Review.

 

 

EvidenceProf Blog on SCOTUS Decision on FRE 606(b)

Federal Rule of Evidence 606(b) is one of the few evidence rules that usually makes the crossover into Civil Procedure books.  Continuing its expansive reading in Tanner v. U.S. of 606(b)'s general prohibition on juror testimony on an inquiry into the validity of a verdict, the Court yesterday issued Warger v. Shauers, which held that Rule 606(b) barred juror testimony in a proceeding to obtain a new trial on the ground that a juror lied during voir dire.

EvidenceProf Blog had a good post summarizing the case yesterday.

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Standing & SCOTUS

A couple of interesting posts this week about standing issues in some high-profile pending and perhaps-soon-to-be-once-again-pending Supreme Court cases:

• Richard Re, Is Fisher v. University of Texas a Precedent on Jurisdiction? (Re’s Judicata)
• Will Baude, The standing problem in Zivotofsky, revisited (Volokh Conspiracy)

 

 

Steinman on Larsen on Factual Precedents

Now running on the Courts Law section of JOTWELL is my essay, Judicial Fact Making. I review Allison Orr Larsen’s article, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013).

 

Reaction to SCOTUS Decision in Johnson v. City of Shelby

On Monday we covered Johnson v. City of Shelby, a per curiam Supreme Court decision on pleading that summarily reversed the Fifth Circuit. Here’s some of the coverage of that decision from this past week:

• City of Shelby: New SCOTUS Pleadings Opinion in Visual Context (Colin Starger)
• SCOTUS Per Curiam Procedure Decisions Raise (At Least) As Many Questions As They Settle (Michael Dorf)
• Twombly’s Remorse (Barry Barnett)

 

 

Pfander on Bruhl on the Supreme Court and Lower-Court Precedent

Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).

 

 

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.