• Selected
• Entire List

Abstract:
In Bell Atlantic Corp. v. Twombly, the Supreme Court repudiated the familiar language from 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 entitled him to relief. This essay critiques Bell Atlantic and discusses some of its implications for pleading claims in the future.

pleading, motion to dismiss, Rule 8, Rule 12, 12(b)(6), Bell Atlantic, Twombly, Gibson, Conley, no set of facts

Abstract:
Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article 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.

jurisdicitonality, mandatory rule, jurisdiction, sovereign immunity, time to appeal

Abstract:
Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure's deep and widespread exceptionalism. But this may be changing, at least in certain areas. The American notice pleading standard, for example, which has long been considered exceptional, shows signs of trending toward the fact pleading models of foreign countries. Congressional experimentation with heightened pleading in statutes such as the Private Securities Litigation Reform Act and the Supreme Court's recent pronouncements in Iqbal v. Ashcroft and Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner and towards a regime focused on facts that is more akin to the global norm. If so, then this trend may allow for more meaningful transnational dialogue between the U.S. and foreign systems, more valuable comparative analyses in the U.S., and the potential to harmonize civil procedure across national boundaries.

notice pleading, pleading standards, twombly, bell atlantic, fact pleading, rule 8, comparative civil procedure

Abstract:
The ubiquitous and somewhat careless use of the term jurisdictional by courts has spawned confusion over what is and is not jurisdictional in a variety of contexts, including removal. The issue has critical implications for litigants. Yet it lacks scholarly coverage and is the subject of deep divisions in the lower courts. In this article, I develop an initial framework for tackling the jurisdictional/procedural characterization issues of the removal statute. I build upon the groundwork laid by prior precedent and modify it to account for the quasi-jurisdictional nature of removal and its impact on the federal-state balance of power. I then showcase the utility of the framework in a case study of one particularly nettlesome removal issue, the forum defendant rule. The case study demonstrates both why the lower courts' approaches to resolving the issue have been misguided and how the framework can provide a more reasoned approach.

jurisdiction, removal, forum defendant, local defendant, 1441(b)

Abstract:
The metaphor "living Constitution" imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that while the metaphor is biologically accurate in some ways, it contains inaccuracies and gaps that render the metaphor incomplete. A deeper exploration of the inaccuracies reveals that slight changes in focus can give rise to provocative insights: for example, the "living" Constitution "evolves" in ways that are much akin to artificial selection (and perhaps even Intelligent Design!) than Darwinian natural selection. And thoughtful attempts to fill the gaps in the metaphor lead to a richer framework for viewing and conceptualizing the document and its changes.

In the end, extending the metaphor, in a way consistent with its biological roots, shows just how well a cross-disciplinary study can enlighten and enrich our understanding of the Constitution, both for those who believe that it is "living" and for those who do not.

living constitution, darwin, evolution, legal evolution, metaphor, living constitutionalism, evolving standards of decency

Abstract:
This Review Essay, solicited by the Alabama Law Review, reviews "Civil Litigation in Comparative Context" (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

comparative law, comparative procedure, civil procedure, american exceptionalism, punitive damages, twombly, pleading standards, case management

Abstract:
This article, written for the Supreme Court Review issue of Tulsa Law Review, critiques Bowles v. Russell - perhaps last term's most underrated case - which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course holding the rule mandatory but nonjurisdictional, which would have been more consistent with precedent while resolving the case on its narrowest grounds. This Article explains where Bowles went wrong, what it should have done, and how it may affect future questions on the jurisdictionality of rules and limits.

jurisdictionality, bowles, time limits, notice of appeal

Abstract:
When is a limitation jurisdictional, and when is it not? Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions. The question is important, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, and obligate courts to monitor and raise them sua sponte. In Bowles v. Russell, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional. This essay critiques that decision, suggests a better approach, and previews some of the difficulties that the decision may cause for the future.

bowles, jurisdiction, jurisdictionality, appeal, 2107, rule 4, frap 4

Abstract:
This article is the first to take a hard look at Federal Rule of Civil Procedure 23(c)(4)(B), an oft-slighted part of the class action scheme that permits a court to create subclasses when appropriate. Despite its tautologically unhelpful text, no other court or commentator has undertaken a comprehensive analysis of this provision. The time to do so is certainly now. As class actions grow bigger, plaintiffs seek new ways to meet Rule 23's certification requirements. Just in the last few years, plaintiffs have turned to subclassing's sister provision, Rule 23(c)(4)(A), which has consequently received a flurry of commentary from courts and academics. The subclassing provision, which provides an alternative mechanism to Rule 23(c)(4)(A), is therefore ripe for a similar spate of commentary and conflict. This article sets the stage for that discussion by formulating two conflicting theories of subclassing: the replacement theory, which posits that subclasses can be certified without regard to the certifiability of the global class action, and the contingency theory, which requires any subclass to be a part of a certified global class. Testing these interpretations of Rule 23(c)(4)(B) against the traditional tools of statutory interpretation - text, context, structure, drafting history, precedent, and functionality - the article concludes that the replacement theory is the best interpretation of the subclassing provision. Nevertheless, the article notes the contrary arguments and suggests that they serve as a call to the Rules Committee and the Court to clarify the meaning and scope of the subclassing provision.

class action, subclassing, issue class, civil procedure, Rule 23, federal rules, amchem

Abstract:
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 reply to their responses develops additional reasons for characterizing the time to file a notice of appeal as mandatory but nonjurisdictional.

Bowles, Colloquy, Poor, Dane, Burch, time to appeal, notice of appeal, jurisdictionality, mandatory

Abstract:
These sympsium remarks are a discussion of themes running through the Constitution, how the FMA, if adopted, might affect those themes, and why we ought to care. I first demonstrate that our Constitution is a thematic document, filled with broad, recognizable, and (mostly) coherent concepts. Separation of powers, representative democracy, federalism, individual liberty, and equality come readily to mind. I then explain that the thematic nature and the inter-coherence of these themes is critical in two ways: to identify those values held to be fundamental in our society, and to assist in the interpretation of the Constitution. The themes in the Constitution give life and meaning to its words and phrases. Next, I show how the FMA would be a rather peculiar amendment to the Constitution because it runs contrary to three existing constitutional themes (federalism, individual liberty, and equality) while furthering no other identifiable theme in the document. I explore what impact the FMA might have on the development of new constitutional themes and what adverse effects the FMA's abridgment of existing themes might have. For example, could the FMA's restriction of state power over marriage, coupled with its emphasis on traditional marriage, lend support for an expansive interpretation of the Commerce Clause that would allow Congress to outlaw divorce? Or for a requirement that any candidate for federal office be married? I conclude by suggesting that these questions and risks counsel strongly against adoption of the FMA as proposed.

Federal Marriage Amendment, federalism, gay marriage, Marriage Protection Amendment

Abstract:
In this essay, I discuss the Constitution's commitment to three themes - state power over familial matters, individual liberty, and equality - and then demonstrate how the proposed Federal Marriage Amendment is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an unconstitutional amendment, if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments altering the Constitution's commitment to multiple existing themes in the Constitution should be scrutinized warily for thematic coherence. Because the FMA is contrary to three existing constitutional themes while furthering no other, the FMA would be a decidedly peculiar appendage to our modern Constitution.

federal marriage amendment, marriage protection amendment, Lawrence, gay marriage, same-sex marriage, constitutional thematics