Civil Procedure & Federal Courts Blog

Mulligan & Staszewski on Interpreting the FRCPs

Lou Mulligan and Glen Staszewski have posted on SSRN a draft of their article, Civil Rules Interpretive Theory. Here’s the abstract:

We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.

 

 

 

 

Registration Open for Central States Law Schools Association Conference

From the Central States Law Schools Association:

Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.

 

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2016.  

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.

 

Hat tip: Christopher Odinet

The Second (and Third and Fourth) Annual Civil Procedure Workshop

The Second Annual Civil Procedure Workshop was held last week in Seattle. Thanks to the organizers Brooke Coleman, Dave Marcus, and Liz Porter for putting together a fantastic event.

If you’re interested in participating in the future, here’s some info:

• The Third Annual Civil Procedure Workshop will be at the University of Arizona on November 3-4, 2017.
• The Fourth Annual Civil Procedure Workshop will be at Stanford University in July 2018.

Stay tuned for more details.

 

 

Moriarty on the 2015 Amendments to the FRCP

Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?

Abstract:

This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.

Thomas on The Missing American Jury

Professor Suja Thomas (Illinois) has just published her book, The Missing American Jury (Cambridge U. Press).  Here is a summary of the book:

Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government. Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide andargues jury decision-making should be preferred over determinations by other governmental bodies.

Short reviews of the book are posted on the above website.  The book is available on Amazon.

Smith on Prudential Limits on Federal Judicial Power

Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.

 

 

 

Erickson on Heightened Procedure

Jessica Erickson has posted on SSRN a draft of her article, Heightened Procedure, which will be published in the Iowa Law Review. Here’s the abstract:

When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for uniform procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure” — additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the prevalence of heightened procedure, there has been no comprehensive examination of its role across the legal system, leaving lawmakers with little understanding of what specific heightened procedures do and what specific areas of the law need. This Article aims to provide that framework, explaining how lawmakers can match the causes of meritless litigation with the appropriate heightened procedural tools. In the end, meritless litigation is not one-size-fits-all, and its procedural solutions should not be either.

 

 

Freer on the Exodus from and Transformation of American Civil Litigation

Professor Richard Freer has just published in Emory Law Journal, 65 Emory L.J. 1491, his recent article, Exodus from and Transformation of American Civil Litigation.

Abstract:     

The story of American federal civil litigation over the past half century is one of exodus and of transformation — exodus from and transformation of the traditional model of “court litigation.” The exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended the Federal Arbitration Act contracts of adhesion and to the adjudication of federal statutory rights. Thus arbitration has become mandatory for claims by consumers and employees. In approving this expansion, the Court increasingly makes clear that it sees nothing special about court litigation — that it and arbitration are mechanisms of equal dignity.

But, at least as envisioned historically, court litigation plays a far broader role than arbitration. It is a transparent public process, governed by the rule of law. It generates the common law that governs most aspects of our daily lives. It is pivotal in social ordering. Arbitration, in contrast, goes on behind closed doors, is not cabined by the rule of law, and does not result in reasoned opinions. Arbitration resolves the dispute at hand and does little else. Accordingly, some have argued that the view that arbitration and court litigation are equivalents cheapens the values embodied in court litigation.

That argument is strong, but would be stronger if today’s version of court litigation resembled the historical model. It does not. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. Indeed, some judges conclude that going to trial reflects a systemic “failure.”

The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.

 

Colorado Supreme Court Embraces Twombly/Iqbal

In a 4-3 decision, the Colorado Supreme Court has adopted for purposes of Colorado state procedure the approach to pleading that the U.S. Supreme Court employed in Twombly and Iqbal. From the majority opinion in Warne v. Hall:

¶2 Because our case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the court of appeals too narrowly understood our existing precedent. Because the plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court of appeals finding the complaint to be sufficient is reversed, and the matter is remanded with instruction to permit further proceedings consistent with this opinion.

From the dissent:

¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable.

¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.

Download Warne v Hall (Colo)