Monday, January 13, 2014

Coleman on the Abrogation of Rule 84 and the Appendix of Forms

Brooke Coleman (Seattle) has just posted an essay entitled Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms on SSRN.  Here is the abstract:

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms.  Poof—after seventy-six years of service, the Committee will make Rule 84 and its forms disappear.  This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing.  Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934.  The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond.  Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments.  This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.

This piece may be downloaded by visiting  SSRN:

Monday, August 26, 2013

Cincinnati College of Law Celebrates the 75th Anniversary of the Federal Rules of Civil Procedure

Date: August 27, 2013                                              

Time: 3:00 p.m. - 5:00 p.m.

Location: Patricia Corbett Theater (CCM)        

CLE:     2 hrs CLE credits approved for OH and KY

RSVP: Contact Mindy Lawson at      

The College of Law’s fall event schedule kicks off with the “75th Anniversary of the Federal Rules of Civil Procedure,” a panel discussion to be held on August 27, 2013 at 3:00 p.m.  A star-studded panel of judges, academics, politicians, lawyers, and business people will come together to discuss the impact of the Federal Rules of Civil Procedure and the importance of this anniversary. The panel will be taking a wide angle view of what the rules were designed to achieve, how they have been applied, what is happening now, and what the future of the Federal Rules might be.  Arthur R. Miller, University Professor at New York University, the nation’s leading scholar in the field of American civil procedure and coauthor with the late Charles Wright of Federal Practice and Procedure, will moderate this event.

Confirmed Panelists:

Thomas Y. Allman, Senior V.P., General Counsel and Chief Compliance Officer, BASF Corporation (retired)
Hon. Michael R. Barrett, U.S. District Court, Southern District of Ohio
Hon. Susan J. Dlott, Chief Judge, U.S. District Court, Southern District of Ohio
Al Gerhardstein, Partner, Gerhardstein and Branch Co., LPA
Hon. Nancy Gertner (ret.), Professor of Practice, Harvard Law School
Hon. Maureen O'Connor, Chief Justice, Supreme Court of Ohio
Hon. Solomon Oliver, Jr., Chief Judge, U.S. District Court, Northern District of Ohio
Andrew J. Pincus, Partner, Mayer Brown LLP, Washington, D.C.
Victor E. Schwartz, Partner, Shook Hardy & Bacon, LLP, Washington, D.C.
Senator Bill Seitz, 8th District, Ohio Senate
David A. Singleton, Executive Director, Ohio Justice and Policy Center
Michael E. Solimine, Donald P. Klekamp Professor of Law, University of Cincinnati College of Law
Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit
Carolyn A. Taggart, Partner, Porter Wright Morris & Arthur LLP
Suja A. Thomas, Professor, University of Illinois College of Law
John Vail, Vice President and Senior Litigation Counsel, Center for Constitutional Litigation, Washington, DC
A reception will follow.

Sponsor: College of Law

Co-Sponsors: John W. Peck Cincinnati-Northern Kentucky Chapter of the Federal Bar Association
Federal Bar Association, Dayton Chapter

Tuesday, March 19, 2013

SCOTUS Decides Standard Fire Insurance Co. v. Knowles

From BNA's Supreme Court Today:

Standard Fire Insurance Co. v. Knowles, No. 11-1450: A would-be class plaintiff's stipulation that he and the class he seeks to represent will not seek damages greater than $5 million total, which is the jurisdictional threshold for federal district courts to have original jurisdiction over class actions under the Class Action Fairness Act of 2005, does not remove the case from CAFA's scope. The plaintiff made the stipulation in an affidavit filed with the complaint, before class certification. The stipulation does not remove the case from CAFA coverage because it is not binding on class members the plaintiff seeks to represent.

Tuesday, December 04, 2012

Kaplow on Multistage Litigation

Professor Louis Kaplow (Harvard) has posted an article entitled Multistage Litigation on SSRN.  Here is the abstract:

Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Lqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.

The article may be downloaded by visiting

Tuesday, November 27, 2012

Issacharoff and Miller Post Motion to Dismiss Article on SSRN

Professors Samuel Issacharoff and Geoffrey Miller (both of NYU) have just posted an article entitled An Information-Forcing Approach to the Motion to Dismiss on SSRN.  Here is the abstract:

This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.

You may download the full article by clicking here.

Wednesday, September 12, 2012

Prof. Coleman Posts Right-to-Counsel Article on SSRN

Professor Brooke Coleman (Seattle) has recently posted her forthcoming piece on the right to counsel, Prison is Prison, which will be published in the Notre Dame Law Review.  Here is the abstract:

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court’s analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court’s narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court’s different goals in the criminal and civil context better explain the Court’s approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court’s “doctrinal-oriented” approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner is prison, not monetary damages or injunctive relief. Instead of taking this doctrinal-oriented approach, this Article argues that the Court’s analysis should be “consequence-driven.” Where prison is the consequence, the Court’s underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil. Using the Court’s decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.

The article is available for download at

Wednesday, August 22, 2012

Top 10 Best Practices in Predictive Coding

Equivio, an e-discovery vendor, has produced a white paper discussing the best practices in predictive coding.  Registration is required to view the paper. Here is a description:

Predictive coding is new to e-discovery.  Predictive coding, sometimes termed computer-assisted review or technology-assisted review, is software that can be trained by a human being to distinguish between relevant and non-relevant documents.  Over the past three years, the predictive coding market has transitioned from a preliminary embryonic state, a test bed for experimentation by technology geeks and early adopters, to the point today where the technology has been approved for use by courts around the US and internationally, and has become the single most talked about topic in e-discovery worldwide.

As is well known, the classification technologies that underlie predictive coding applications in the e-discovery arena are widely used in a very broad range of industrial and scientific settings, and have done so since beginning in the 1960’s.  Some of the best practices that have developed in these settings are analogous to the e-discovery setting.  However, e-discovery is a unique arena, especially in terms of the stringent defensibility requirements that apply.  As such, it has been necessary to develop and define best practices that will address the unique needs of predictive coding applications in the e-discovery environment.  The objective of this white paper is to outline the best practices that are emerging in the application of predictive coding technology to the e-discovery arena.