Friday, February 29, 2008

Mandatory Rules

It's submission season, and we're trying to keep up with links to work that will interest our readers.  The following two pieces by Prof. Dodson fit that category and are accompanied by abstracts:

Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article I recently published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity has led courts and commentators to overlook the fact that nonjurisdictional rules need not be the mirror inverse but may instead have some of these attributes of jurisdictionality. A nonjurisdictional rule might, for example, be mandatory, meaning that it is subject to waiver or forfeiture, but if properly raised by the party for whose benefit it lies, it has the jurisdictional-like attribute of being immune to equitable exceptions. This Article is the first to take a hard look at nonjurisdictional rules and, particularly, mandatory rules. It first argues that they have an important normative role to play in our procedural system. It then shows that, in practice, mandatory but nonjurisdictional characterizations may help explain a number of perplexing doctrines. As an example, the Article demonstrates how such a characterization can help reconcile the otherwise maddeningly inconsistent doctrine of state sovereign immunity. Ultimately, the Article suggests that a greater appreciation for mandatory rules both can benefit the procedural system and can broaden our view of what salutary roles nonjurisdictional rules can play.

In Bowles v. Russell, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional. In a short essay published in Northwestern University Law Review's Colloquy, I critiqued that decision, suggested a better approach, and previewed some of the difficulties that the decision may cause for the future. Professors Perry Dane and Beth Burch and Mr. King Poor, Esq. responded. This short essay replies to their responses and develops additional reasons for characterizing the time to file a notice of appeal as mandatory but nonjurisdictional.


February 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2008

Rooting for the Restyled Rules

I invite you to read my new article Rooting For The Restyled Rules (Even Though I Opposed Them).  The article dovetails nicely, I think, with discussions we had here with Prof. Hartnett and here with Prof. Parker about the Style Project.  Please email me any comments you have, and I'll be sure to thank you in an asterisked footnote.  The abstract follows--Counseller

The Restyling Amendments of December 1, 2007 made top-to-bottom changes to the text of the most important and successful set of rules in the American civil justice system. These amendments are the culmination of more than fifteen years of work by members of the Rules Committees and their style consultants.  The goal of these Restylists was to redraft the Rules to improve style and clarity without changing meaning.  In short, they sought to achieve “clarity without change.”  The Restylists are confident they achieved this goal, but not everyone shares their confidence.  Critics worry that the Restylists made unwanted changes to the law of procedure, despite their best efforts to avoid them.  Critics also believe that improving merely the style and clarity of Rules did not justify  the costs of transitioning from one set of rules to another and that the Restylists may have sacrificed other more important reforms on the altar of the Style Project.  I have never been certain that the criticisms are accurate, but I decided that an improvement in the mere style of the Rules did not justify much uncertainty.  For this reason, I joined other critics in opposing the enactment of the Restyling Amendments in an essay titled The Restyling of the Federal Rules of Civil Procedure:  A Solution in Search of a Problem.  Now that the Restyling Amendments are effective, however, I am rooting for their success and urging other critics to do the same.  Whether the Restyling Amendments should have been adopted in the first place is now moot.  The issue now is what we can do to maximize the chance that the Restyled Rules will succeed, despite their faults.  This year alone, the Restyled Rules will affect the rights and obligations of hundreds of thousands of litigants. We must hope and work to ensure that the Rules function as their supporters believed they would rather than as critics like me feared they would.  This article is a call to optimism and action.  It calls for critics to be optimistic that the Rules will not be as problematic as we feared and provides the rationale for that optimism.  This article also calls for action on the part of the Advisory Committee to eliminate the known and undesirable substantive changes resulting from the Restyling.  This critical support and Advisory Committee action will help to ensure that the Federal Rules of Civil Procedure are a model of both clarity and procedure.



February 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2008

Twombly scholarship

The hot topic this submission season appears to be pleading post-Twombly.   Below are the links to and abstracts of some recent works:

  • Professor Lonny Hoffman, Burn Up the Chair with Unquenchable Fire:  What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings.
    • This paper addresses the most talked about “new” tool for managing the burdens of modern litigation: judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  The issue has generated an astonishing amount of recent attention in courts and academic circles, in large part due to the Supreme Court’s decisions in 2005 in Dura Pharms. Inc. v. Broudo and subsequent decisions in the early summer of 2007 in Bell Atlantic v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd.  In this paper, I advance the novel argument that any coherent account of judicial pleading power requires going beyond the law of pleading.  I argue that bringing awareness to doctrinal linkages with pleading practice can inform normative thinking about the appropriate limits of judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  To be more specific, I argue that we can profitably focus attention on two doctrinal intersections with pleading practice: one obvious; the other less so, at least at first blush.  The first and most significant point of intersection is with summary judgment.  The second intersection, between Rule 8 and removal, though of less central importance than the linkage with summary judgment, can also help order thinking about appropriate limits on judicial power to enforce pleading norms.  The subject of this work lies at the core of the most predominant thematic tension running through procedural law: balancing access to justice against efficiency.  Ultimately, how and where we mark the scope of judicial pleading power will matter more to prospective claimants (and prospective defendants) than just about any other debate over procedural justice with which courts, rulemakers and theorists have been engaged.  See Phillips v. County of Allegheny, ___ F.3d ___, 2008 WL 305025 (3d. Cir., Feb. 5, 2008) (“Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.”).

  • Prof. Charles Campbell, A "Plausible" Showing After Bell Atlantic Corp. v. Twombly
    • The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “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.” Now a complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Only decided last May, Bell Atlantic has been cited in over 3,700 cases.

      Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly.” Just what is a plausible “showing that the pleader is entitled to relief” under Rule 8(a)(2)?

      I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that “a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years. Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility” requirement in all respects.

      The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader’s claim to make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

  • As a Twombly resource, don't forget about the Twombly bibliography Prof. Scott Dodson posted recently at Prawfsblag.  --RR

February 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2008

Federal Rules Reign Supreme

Last Wednesday, the Supreme Court handed down its opinions in Riegel v. Medtronic, Rowe v. New Hampshire Motor Transp. Assoc., and Preston v. Ferrer.  Over at the SCOTUS Blog, you can read more on Riegel here and more on Rowe here.  The common theme in all three cases, as discussed here in an NPR story, is that the Supreme Court overwhelmingly favors an interpretation of federal rules that allows them to prevail over state rules.  Big business is happy because they have less to worry about from state regulation while state officials inundated with arguments for preemption probably aren't.--Counseller

February 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2008

Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy

Earlier, we linked to Scott Dodson's Bowles article in the Northwestern Colloquy.   The latest Colloquy piece from Howard Wasserman  continues the series on the boundaries between jurisdiction, merits, and procedure.  It begins:

In his outstanding article, In Search of Removal Jurisdiction,  Professor Scott Dodson delineates the appropriate boundaries between rules of subject matter jurisdiction and rules of judicial procedure in the context of removal time limits, and argues that we must develop a “broader understanding of the interrelationship and boundaries among the trichotomy of jurisdiction, procedure, and merits.”  He also suggests that the strands of each pair in the triangle interact in distinct ways and require distinct rules for separating one from the other.  Having sought in recent work to define, clearly and cleanly, boundaries between subject matter jurisdiction and the substantive merits of federal claims of right, I agree as to both points.


February 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2008

1404(a) and the Fifth Circuit

We posted here about the In re Volkswagen of America Inc. opinion--a Fifth Circuit panel opinion that made it easier to obtain a 1404(a) transfer by eliminating the requirement that the balance of convenience and justice substantially weigh in favor of transfer.  The Fifth Circuit has decided to rehear the case en banc.  The Fifth Circuit's decision may have a significant impact on the little Texas town of Marshall with its Fire Ant Festival and massive federal docket of some of the world's most important IP litigation because, as this article discusses, the Federal Circuit will probably apply the Fifth Circuit's 1404(a) transfer standard.--Counseller         

February 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2008

Twombly's Impact: Interview with Kendall Hannon

Click the link at the bottom of this post to listen to my interview with Kendall Hannon about the results of a survey he conducted on Twombly's impact on 12(b)(6) dismissal rates.  The results are interesting and the work Kendall put into the project is staggering.  Kendall is the incoming EIC of the Notre Dame Law Review, and, based on his Twombly project, we can expect great things from him in the future.  The results of his survey will be published as a case note in the Notre Dame Law Review but you can read his paper--Much Ado About Twombly?  A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions--in its entirety here.  Another thank you to Scott Dodson for leading us to Kendall's valuable resource.--Counseller

Download hannon_twombly_interview.MP3


February 18, 2008 | Permalink | Comments (2) | TrackBack (0)

Friday, February 15, 2008

Prof. Rowe compares class-action rules

On SSRN, Duke Prof. Thomas Rowe recently posted an article titled State and Foreign Class-Action Rules and Statutes:  Differences from--and Lessons For?-- Federal Rule 23.  The full link follows the abstract:

  This article looks at significant differences between Federal Rule of Civil Procedure 23 on class actions and the class-action rules or statutes of some states and foreign nations. A large number of American states have class-action rules based on and often identical with Federal Rule 23, at least in its 1966 version before amendments of the last ten years. But important variations exist and might provide a source of ideas for revisions of the federal rule and other state rules. Three of the most noteworthy are: First, a few states do not have the typicality requirement of Federal Rule 23(a)(3). Second and more significantly, several states and foreign jurisdictions do not apply the requirement of Federal Rule 23(b)(3) that common issues predominate over individual ones with the zeal of some federal courts, or lack the requirement to begin with. Third, in a considerable variety of ways several states water down the rigorous requirement of Federal Rule 23(c)(2)(B) that for Rule 23(b)(3) common-question class actions "the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."

Download the full article here. --RR

February 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2008

E-Discovery For Defendants

Over at Drug and Device Law, Beck and Herrmann note that, while Defendants are generally thought to hate E-Discovery, "Defendants shouldn’t let their dislike of e-discovery blind them to its potential advantages in a world where more and more people – and thus more and more plaintiffs – have their own electronic footprint on the Internet."   Read the post here for some interesting ideas about Myspace, Facebook, and other potential discovery targets. --RR

February 14, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 13, 2008

Worth a Read

The Tenth Circuit Court of Appeals issued an opinion recently you might want to read.  In AST Sports Sci., Inc. v. CLF Distrub. Ltd (10th Cir. Jan 28, 2008), the Court reversed the district court's decision to dismiss a Colorado lawsuit against a British company for lack of personal jurisdiction where the company had solicited business in Colorado and purchased products from the American plaintiff for sale in Europe over the course of several years.--Counseller 

February 13, 2008 | Permalink | Comments (0) | TrackBack (2)

Tuesday, February 12, 2008

Rodriguez Remand

We posted here about Howard Wasserman's piece over at the Sports Law Blog about WVU's breach of contract suit against former football coach (Now Michigan football coach) Rich Rodriguez because it involved an interesting removal issue.  You can check out Howard's follow-up to his earlier piece here.  Howard goes into more and better detail, but the long and short of it is that the federal district court remanded the lawsuit to the West Virginia state court.  Rodriguez had removed the case claiming he was a Michigan citizen and, thus, diversity of citizenship existed between him and the West Virginia Plaintiff. 

The purpose of diversity of citizenship jurisdiction is to protect the out-of-state defendant from local prejudice.  The district court here did not end up determining Rodriguez's citizenship (remanding on other grounds, as Howard explains), but, after reading this piece, I suspect Rodriguez is going to feel some local prejudice in West Virginia no matter what his citizenship happens to be.--Counseller 

February 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2008

Healthcare Fraud

Click here to read abut Merck's decision to pay $670 million to settle claims it overcharged Medicaid programs and bribed doctors to prescribe its drugs.  This settlement comes on the heels of Merck's agreement to settle the Vioxx claims for $4.85 billion.--Counseller

February 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2008

The Mystery of Twombly

Scott Dodson has authored several guest posts for us, including posts on Twombly you can find here and here.  Yesterday over at Prawfsblawg, he authored another Twombly post, which is useful, not only for its summary of a recent 3rd Circuit opinion, but also for its Twombly bibliography at the end. --RR

February 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 4, 2008

CAFA's Revolving Door

Over at Drug and Device Law, Sean Costello has written a guest post titled "CAFA's Revolving Door."   His post begins:

The Class Action Fairness Act has succeeded in shifting more putative class actions from state to federal court. Whether we’re talking about original federal filings or removals from state court, in the post-CAFA world – and, particularly, in the months immediately after CAFA became law – there were more putative class actions in federal courts than before CAFA.

That’s the conclusion reached by the Federal Judicial Center (FJC) researchers who have been studying the statistics since CAFA took effect. Last July, I guest-posted about the FJC’s comparison of pre and post CAFA numbers.  The FJC’s April 2007 report showed a dramatic increase in putative class actions filed in or removed to federal court.

Click here for the full post. --RR


February 4, 2008 | Permalink | Comments (0) | TrackBack (0)