Wednesday, April 30, 2008

Prof. Epstein Posts Article on Bell Atlantic v. Twombly

Professor Richard A. Epstein of the University of Chicago School of Law has recently posted an Article entitled Bell Atlantic V. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments on SSRN. Here is the Abstract:

The recent Supreme Court decision in Bell Atlantic v. Twombly stands at the crossroads of antitrust and civil procedure. As an antitrust case, Twombly makes sense on structural grounds. The FCC regulation of the telecommunications industry, and the many innocent explanations as to why each telecommunications company would stay out of its rival's territories obviated the need for further discovery. But in many other contexts, including Conley v. Gibson a case involving potential breach of the duty of fair representation on matters of racial discrimination discovery could flesh out the relevant factual issues. The Supreme Court's general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment.

A full-text version of the Article may be downloaded by visiting

Tuesday, April 29, 2008

Civil Rules Committee Approves Proposed Rules Amendments

At its April 7-8, 2008, meeting, the Advisory Committee on Civil Rules approved amendments to Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81, Supplemental Rules B, C, and G, and Illustrative Civil Forms 3, 4, and 60 regarding the computation of time under the rules. The advisory committee also approved proposed amendments to Civil Rules 13, 15, 48, and 81, and new Rule 62.1, and approved in principle a proposed amendment to Civil Rule 8. The advisory committee will forward its recommendations to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments and new rule will be transmitted to the Judicial Conference for consideration at its September 2008 session.

The advisory committee also approved for publication proposed amendments to Civil Rule 26 on the discovery of expert witnesses and Civil Rule 56 on summary judgment. The advisory committee will forward its recommendations to publish to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments are expected to be published in August 2008 and will be posted at

Monday, April 28, 2008

Second Circuit Describes Twombly as Having Created Heightened Pleading Standard for Antitrust Claims

Per Ross v. Bank of America, N.A.(USA), --- F.3d ----, 2008 WL 1836640 (2d Cir. Apr. 25, 2008):

In our view, the cardholders have pled “actual and imminent” harms sufficient to establish Article III injury in fact. There is no heightened standard for pleading an injury in fact sufficient to satisfy Article III standing simply because the alleged injury is caused by an antitrust violation. We recognize that Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), requires a heightened pleading standard “in those contexts where [factual] amplification is needed to render [a] claim plausible,” Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir.2007), including, most notably, the antitrust context. See Bell Atl. Corp., 127 S.Ct. at 1965 (“In applying these general standards to a § 1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”) (footnote omitted). However, plausibility is not at issue at this point, as we are considering only Article III standing.

Friday, April 25, 2008

Prof. Roederer Publishes Article on Tort Reform

Professor Christopher J. Roederer of the Florida Coastal School of Law recently published an article entitled Democracy and Tort Law in America: The Counter-Revolution, 110 W. Va. L. Rev. 647 (2008). Here is an excerpt from the Introduction:

Th[e] gap between the “haves” and “have nots” cuts across both socioeconomic aspects of life (education, jobs, income, mobility) and civil and political aspects of life (the ability to participate in civic and political life, through voting, volunteering, protesting, donating, etc.). This gap skews both the input into those who are elected to represent the people and the output, or the responsiveness, of those elected to serve the needs and preferences of the people. Gross inequality in political voice is bound up with a lack of responsiveness and accountability and this, in turn, leads to the erosion of government interventions to correct or counterbalance the ever-widening gap between the “haves” and the “have-nots” in America. Just as democratic progress fostered progressive tort reform, democratic decay over the last few decades has fostered regressive changes in the law of torts. Just as progressive tort reform in turn helped to consolidate democracy, the regressive tort reform movement has helped further entrench both economic and political inequality, and the further erosion of democracy.

Part II of this Article provides an introduction to the history of democracy and tort reform in the United States. Although the seeds of democracy and democratic tort reform were sown well before America's founding, as this section demonstrates, neither began to blossom until after the Second World War. Post World War II Democratic progress both led to, and was consolidated by, progressive developments in tort law during the same period. Part III draws on recent literature in the field of political science detailing the extent of U.S. economic inequality, while Part IV draws on that literature to show how economic inequality is bound up with political inequality and the decay of American democracy. As Part V illustrates, interventions by the courts and legislators in the area of torts follows this pattern. This can be seen by the Supreme Court's counter-democratic interventions, as well as the bulk of tort “reform” efforts since the 1980s.

Tuesday, April 22, 2008

Prof. Miller Posts Article on Pleading after Tellabs

Professor Geoffrey Miller has recently posted an Article entitled Pleading After Tellabs on SSRN. Here is the Abstract:

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged. This paper analyzes how the Tellabs test may be applied, identifies questions left open under the decision, and discusses broader implications of the opinion and the PSLRA. Among other things, the paper suggests that the PSLRA's heightened pleading rules have deformed the motion to dismiss to the point where it now operates in securities fraud cases as a hybrid falling somewhere in between the traditional Rule 12(b)(6) and Rule 56 summary judgment procedures.

A full-text version of the Article may be downloaded at

Monday, April 21, 2008

Prof. Green Posts Article on Erie

Professor Craig Green recently posted an Article entitled Erie and Problems of Constitutional Structure: A Response to Professor Clark on SSRN. Here is the Abstract:

Erie has become a lamentably prevalent authority for limiting federal judicial power; I have called this phenomenon Erie's new myth. New-myth advocates often trade on Erie's celebrity and on distaste for Swift v. Tyson's federal general common law. But the new myth sweeps broader than simply rejecting Swift's holding or endorsing Erie's. In fact, new-myth opposition to federal common law applies inherently unstable concepts, resulting in a malleable theory that risks selective and unwarranted expansion.

Bradford Clark's scholarship fits this pattern. One unique feature of Clark's analysis is his claim that the Supremacy Clause, Erie, INS v. Chadha, and the constitutional structure form interrelated limits on federal judicial power. This Essay argues that the first three cannot support Clark's conclusions, but that Clark's reliance on structure needs detailed attention. The term structure has multiple meanings in constitutional law, and Clark's scholarship illustrates structural interpretation's strengths and weaknesses.

Part I challenges Clark's view of the Supremacy Clause as Erie's constitutional source, and considers his arguments' threat to administrative lawmaking. Part II explores Clark's vision of constitutional structure and illustrates how such interpretive methods can incorporate unstated assumptions about how the Constitution should operate. I conclude that, although arguments about constitutional structure are important, such claims merit scrutiny similar to other assertions about constitutional penumbras and ordered liberty.

A full-text version of the article may be downloaded at

Monday, April 14, 2008

Iowa Law Review Symposium Pieces on Summary Judgment Available on SSRN

SSRN now has available papers on Summary Judgment from a recent Iowa Law Review Symposium entitled "Procedural Justice: Perspectives on Summary Judgment, Preemptory Challenges, and the Exclusionary Rule." Here are links to those papers:

Suja Thomas, The Unconstitutionality of Summary Judgment: A Status Report

Suja Thomas, Why Summary Judgment Is Still Unconstitutional: A Reply to Professors Brunet and Nelson

Here is the link to Ed Brunet's response paper:

Here is the link to Bill Nelson's response paper:

Here is a link to the podcasts of the symposium:

Friday, April 11, 2008

Prof. Nagareda Posts Article on Trans-Atlantic Civil Litigation

Prof. Richard Nagareda recently posted an Article entitled Aggregate Litigation across the Atlantic and the Future of American Exceptionalism on SSRN. Here is the Abstract:

This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate basis - chiefly, though not exclusively, by way of class actions. European systems have shown a growing receptiveness for aggregate litigation, but treatments of this development have consisted largely of description. This article offers an analytical framework with which to anticipate the structural dynamics of transnational aggregate litigation in the twenty-first century.

Simply put, these structural dynamics will tend to recreate the difficulties seen in the context of nationwide class action litigation within the United States. The nationalization of US commerce led to aggregate litigation of a commensurately national scope. The result, however, was regulatory mismatch - for the scope of aggregation to expand to match the scope of the disputed nationwide activity, rather than the jurisdictional sovereignty of the forum. The globalization of commerce, coupled with the very multiplicity of approaches to aggregate litigation seen today, has a considerable tendency to replicate these mismatches - now, with international proportions. The recent Vivendi securities class action in the United States and the pathbreaking Royal Dutch Shell settlement under the 2005 Dutch collective settlement act confirm this trend.

The article then analyzes the vehicles by which to address regulatory mismatches. Here, too, the US experience is instructive, underscoring both the centrality and the limitations of the two vehicles by which to achieve a kind of de facto, informal governance: the principles for transnational claim preclusion and the latitude available for private contracts to shift disputes from litigation to arbitration.

A full-text version of the article can be downloaded by visiting

Wednesday, April 09, 2008

E.D. Wisc. Denies Motion to Dismiss Title VII Claim, Citing Swierkiewicz and Twombly

Per Kimble v. Wisconsin Dept. of Workforce Development, Slip Copy, 2008 WL 916964 (E.D. Wis. Arp. 2, 2008):

Plaintiff worked as a supervisor for the Equal Rights Division (“ERD”) within the Wisconsin Department of Workforce Development, for around twenty-five years before retiring. During an exit interview with ERD Director Robert Anderson, held in April 2005 after plaintiff announced his retirement, plaintiff stated that he felt that overall his compensation had been inadequate in light of the excellent track record of the department which plaintiff supervised. Mr. Anderson expressed his surprise that plaintiff had not received any discretionary raises, especially when other employees who were subordinate to plaintiff had received such raises. After this meeting, plaintiff investigated the pay and pay rates of other employees and discovered that many supervisory employees at the ERD had received raises when plaintiff had not. At least some of these employees were of European-American descent or female.

Defendants argue that I must dismiss plaintiff's Title VII claims because plaintiff has failed to allege a discrete discriminatory act that constitutes a basis for the claims. Specifically, defendants argue that plaintiff did not allege specific dates, names, or other facts surrounding a discriminatory pay-setting decision, and failed to substantiate any of his allegations regarding other employees' raises with statistics or other evidence. However, at the pleading stage, plaintiff need only provide fair notice of his claims and the grounds upon which they rest. Twombly, 127 S.Ct. at 1965. Plaintiff need not plead facts to make out a prima facie case of discrimination. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-13 (2002). The allegations above, taken from plaintiff's complaint, meet this standard.

Monday, April 07, 2008

Prof. Floyd Publishes Article on Supplemental Jurisdiction

Professor C. Douglass Floyd recently published an Article entitled Three Faces of Supplemental Jurisdiction after United Mine Workers v. Gibbs, 60 Fl. L. Rev. 277 (April 2008). Here is an excerpt from the Introduction:

In a post-Gibbs world, therefore, three competing views of the permissible scope of federal subject matter jurisdiction over non-diverse state law claims have emerged. First, a “delegation” model, which reads the Constitution to have delegated to Congress an apparently unrestricted power to define the scope of an Article III case or controversy, provided at least one claim in the action falls within the scope of Article III. Second, a “factual relationship” model, which seeks to give more precise content to Gibbs's “common nucleus of operative fact” standard and to distinguish it from the “same transaction or occurrence” joinder standard of the Federal Rules. And third, a “necessary and proper” model, which restrains Congress's ability to authorize the joinder of jurisdictional and non-jurisdictional claims based, not on the nature of the factual or transactional relationship among the claims to be joined, but rather on whether such joinder is necessary and proper to achieve the purposes underlying the enumerated heads of federal jurisdiction set out in Article III.

This Article addresses each of these theories in turn and concludes that the first two approaches to the supplemental-jurisdiction question in a world unencumbered by the Gibbs standard (to the extent that Gibbs is not constitutionally based) are subject to serious objections and should be rejected. Rather, the post-Gibbs contours of federal jurisdiction are properly defined by referring to the purposes underlying the limited grants of federal subject matter jurisdiction contained in Article III. In some instances, such as permissive counterclaims, this model would permit their assertion--even those seeking affirmative relief--absent any transactional or factual relationship with the plaintiff's main claims. In other instances, it would reject supplemental jurisdiction even though a transactional or factual relationship exists.

Thursday, April 03, 2008

Prof. Steinman Posts Article on Erie Doctrine

Professor Adam Steinman has just posted his latest Article, entitled What is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), on SSRN. Here is the Abstract:

As when Erie Railroad 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 large part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. Last Term's decision in Bell Atlantic v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a surprisingly straightforward argument that the Erie doctrine requires 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's 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.

The full-text version of the Article can be downloaded at

Wednesday, April 02, 2008

Professor Cassandra Robertson Posts Article on Federal Judges' Ability to Grant New Trials on the Weight of the Evidence

Professor Cassandra Burke Robertson has just posted her Article entitled Judging Jury Verdicts on SSRN. The piece will be published in the Tulane Law Review. Here is the Abstract:

Empirical studies show that juries generally perform their job conscientiously and that the large majority of jury verdicts are accurate and fair. But some outliers remain, and even a small number of seemingly unjust jury verdicts can shake the public's faith in the jury system as a whole. Historically, federal district court judges have been empowered to remedy such outlier verdicts by judging the weight of the evidence and ordering a new trial when the jury's verdict appears manifestly unjust. In recent decades, however, a growing number of circuits have - perhaps inadvertently - created obstacles to such review. Even though weight-of-the-evidence review is a critical component of the constitutional right to a jury trial, it has received very little scholarly or judicial attention. The doctrine has become so confused that the federal circuit courts of appeals have regularly overlooked its existence and have frequently confused evidentiary weight with evidentiary sufficiency, thereby undermining the constitutional right to trial by jury.

This Article examines the reasons why the doctrine has fallen into such disarray and clarifies the doctrinal underpinnings of weight-of-the-evidence review. It proposes two theoretical models of the judge-jury relationship: one that envisions the judge and jury performing their work independently in separate spheres and a second one that acknowledges the interdependence between the two. The Article concludes that courts and scholars too often subscribe to the separate spheres model and that the model fails to account for the existing interaction between the judge and jury, thus causing appellate courts to place unwarranted restrictions on the trial judge's ability to review the weight of the evidence. The Article conducts a comparative institutional analysis of the judge and jury's roles in evaluating evidentiary weight, looking particularly at their relative strengths and weaknesses in promoting accuracy, legitimacy, efficiency, and adherence to constitutional values. Ultimately, the Article recommends that courts safeguard the jury-trial right both by increasing the trial judge's discretion to grant a new trial on the weight of the evidence and by requiring a balanced appellate review of decisions granting and denying new trials.

The full-text version of the Article may be downloaded at