Civil Procedure & Federal Courts Blog

I am in A.P. Contracts ....

Property Prof. Ben Barros thinks "moving to an advanced placement system for law school would be a win for everyone."  Read his post here.

Rule 60(b) and bad lawyering

When must a district court grant a Rule 60(b) motion to vacate a default judgment due to bad lawyering? Essentially never, says the Seventh Circuit.  Because of the principal-agent nature of the lawyer-client relationship, which attributes the lawyer's conduct to the client, even gross omissions don't constitute exceptional circumstances.  Click the link to download Bakery Machinery & Fabricattion, Inc. v. Traditional Baking, Inc: Download BMF

--RR

The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure

Prof. David Marcus recently posted an interesting piece on SSRN,  The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure.  Click the title to download it.  The abstract follows:

The trans-substantivity principle – the same procedural rules should apply regardless of the substance of the case – has been a central feature of modern federal civil procedure since its beginnings in 1938. In recent years, however, a number of scholars have questioned whether the principle should continue to govern procedural rulemaking. Mirroring this scholarly disquiet, legislatures have crafted substance-specific rules to apply in heavily-litigated areas of substantive doctrine. The future of trans-substantivity is uncertain. In this symposium contribution, I use the history of the rise of trans-substantivity in American civil procedure as a basis to predict its role going forward. This history, beginning in the early nineteenth century and culminating in 1938, illuminates the jurisprudential foundation for trans-substantivity, its normative implications, and the political role it played in assisting the development of court-supervised rulemaking. I then assess the current status of trans-substantivity. Recent legislative developments call the jurisprudential and normative bases for trans-substantivity into question, but court-supervised rulemakers continue to limit themselves to trans-substantive rules. Guided by this pattern of institutional behavior, I argue that the principle, however theoretically suspect, has a role going forward as a mechanism for the allocation of rulemaking power. Court-supervised rulemakers can strengthen their legitimacy if they limit themselves to trans-substantive rules, while substance-specific departures from the principle should come from legislatures.

--RR