• Selected
• Entire List

Abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

A careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a 50-year-old phrase that the Supreme Court had never taken literally and was not in any sense the foundation of the Court's key notice-pleading precedents. Furthermore, Iqbal's two-step analysis confirms that the much-critiqued plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

12(b)(6), Rule 8, Twombly, Bell Atlantic, Iqbal, Ashcroft, motion to dismiss, pleading, notice, conclusory, plausible, plausibility

Abstract:
Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify many important aspects of summary judgment procedure, leading to competing myths within both the academy and the judiciary.

The prevailing myths of Celotex are based principally on scholars' and judges' own views about how summary judgment procedure ought to operate in the federal system. This article takes a more traditional approach that is long overdue in this area: treating Celotex as an object of interpretation rather than an empty vessel for achieving policy preferences. Using basic interpretive values - consistency with prior decisions, consistency with governing textual sources, and internal coherence - this article challenges the current myths and offers a fresh interpretation of Celotex that cogently resolves that case's many ambiguities. The resulting approach to summary judgment would provide a sensible middle ground between the two dominant views of Celotex.

Summary Judgment, Celotex, Catrett, Supreme Court, Citation Count, Rehnquist, Civil Procedure, Rule 56, Federal Court, Trilogy

Abstract:
As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA) -- whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side--strengthens Erie's preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis' Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come.

Erie, CAFA, Class Action Fairness Act, Federalism, Federal Common Law, Judges, Jurisdiction, Civil Procedure, Choice of Law, Article III, Brandeis

Abstract:
The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question once again.

In light of these recent events and their common theme, this Article has two goals. First, it argues that CAFA - like its older cousin the supplemental jurisdiction statute - contains a fundamental disconnect between the legislative history and the statutory text. While CAFA's legislative history indicated that Congress meant to expand federal jurisdiction only to certain large class actions with interstate dimensions, the unambiguous text of CAFA authorizes removal of virtually every state court class action to federal court. This conflict threatens to create the same level of judicial and academic disagreement that plagued the supplemental jurisdiction statute over the last decade-and-a-half.

Second, this Article examines Justice Anthony Kennedy's majority decision in Allapattah to divine its lessons for interpreting CAFA. Allapattah sent mixed messages, however. The Court's language in Allapattah imparted an unmistakable endorsement of textualism - jurisdictional statutes should be read no more narrowly or broadly than the text provides. But the Court's ultimate conclusion compromised strict fidelity to the text in order to avoid expanding jurisdiction far beyond what Congress apparently intended. The Court chose a compromise interpretation that expanded federal jurisdiction farther than the legislative history anticipated but not as far as the plain meaning of the statutory text would require. Thus, federal courts interpreting CAFA face a dilemma: follow Allapattah's explicit lesson and construe CAFA according to its text, or follow Allapattah's implicit lesson and strike a compromise between the legislative history and the statutory text. For courts following the latter approach, a compromise reading of CAFA may be available. This reading would eliminate certain requirements that had impeded the removal of class actions in the past, but it would not create an independent basis for removing all state court class actions; rather, a basis for removal must exist elsewhere in federal law.

Exxon, Exxon Mobil, Allapattah, Supplemental Jurisdiction. Class Action Fairness Act, 1367, CAFA, Removal, Federal Court, Federal Jurisdiction, Class Action, 1453, Jurisdiction, Statutory Interpretation, Legislative History

Abstract:
Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime's pragmatic structure without its procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that such appeals are a superior vehicle for discretionary review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, 28 U.S.C. § 1292(a) provides a more coherent doctrinal foundation than the collateral order doctrine's awkward interpretation of the term final decision under 28 U.S.C. § 1291.

appeal, appeals, appellate jurisdiction, courts, mandamus, collateral order doctrine, all writs act, procedure, civil procedure, appellate procedure, 1291, 1651

Abstract:
In recent months, federal appellate judges have grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 (CAFA) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite--it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have disagreed sharply about whether courts may rewrite CAFA to require an appeal not more than seven days after entry of the order, or whether they must instead heed the statute's text and impose no outer deadline for CAFA appeals. This puzzle upsets many of the assumptions and priorities associated with competing theories of statutory interpretation. Textualists, for example, might question whether CAFA warrants their usual skepticism toward unenacted legislative "intent," because there is overwhelming evidence (from CAFA's structure, its legislative history, and common sense) that Congress meant to impose a seven-day deadline rather than a seven-day waiting period. But intentionalists (who usually tolerate deviations from a statute's ordinary meaning in order to effectuate Congress's purpose) might balk at taking the unparalleled step of reading a statute to mean the exact opposite of what it says. This article proposes a solution to CAFA's dilemma that has eluded courts and commentators to date. Even if one accepts CAFA's plain language, the Federal Rules of Appellate Procedure require litigants to seek an appeal within 30 days. This solution provides a meaningful deadline for CAFA appeals without doing unprecedented violence to the statute's text.

Class Action Fairness Act, CAFA, 1453, Removal, Appeals, Appellate, Deadline, 7 Days, Seven Days, Textualism, Intentionalism, Purposivism, Statutory Interpretation, Statutory Construction, Amalgamated, Deadline, Federal Rules of Appellate Procedure

Abstract:
When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or merits of a particular lawmaking act, only constitutional principles can assess whether the lawmaking act is valid.

Although the constitutional principles governing judicial lawmaking are not necessarily set forth in a written constitution, this article articulates a methodology for identifying the fundamental constitutional limits on judicial lawmaking. It then explains how this constitutionalist approach fits with various strands of legal theory, including formalism, realism, positivism, legal process, and critical legal studies. Finally, this article begins to examine the implicit constitution that governs judicial lawmaking in the federal system, explicating some of the key issues that define its contours and that can shape future development and critique.

Stare Decisis, Judicial Lawmaking

Abstract:
The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its improvements to the summary-judgment process.

Summary Judgment, Rule 56, FRCP, Federal Rules, Civil Procedure, Advisory Committee, Proposed Amendment, Fed. R. Civ. P, Fed. R. Civ. P. 56

Abstract:
This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its independent assessment of federal law. Under AEDPA, federal habeas courts must defer to a state court's rejection of a petitioner's constitutional claim unless the state court's decision is either contrary to or involves an unreasonable application of established federal law. The key question, therefore, is no longer whether deference is required, but how that deferential standard should operate.

A threshold question in applying the new standard is whether it targets the legal reasoning underlying the state court's ruling, or whether it looks solely at the result reached by the state court regardless of how, analytically, the state court came to that result. The thesis of this article is that AEDPA's deferential standard should scrutinize the legal opinion issued by the state court, and therefore, AEDPA should bar relief only where that opinion correctly identifies the governing rule of federal law and reasonably applies that rule. Although this approach would not guarantee independent relitigation of federal claims on federal habeas, it would ensure that petitioners receive one analytically sound adjudication of their federal claims. It would also create a tangible incentive for state courts to adjudicate federal law claims thoroughly and explicitly, which in the long run could enhance overall enforcement of federal rights.

AEDPA, 2254(d)(1), Habeas Corpus, Habeas, Standard of Review