Friday, May 30, 2008

Prof. Lahav Posts Essay on Value of Jurisdictional Redundancy

Professor Alexandra D. Lahav (Conn.) has recently posted an Essay entitled Recovering the Social Value of Jurisdictional Redundancy on SSRN. Here is the Abstract:

This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement; (ii) the costs of inconsistency; and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.

This Essay may be downloaded at

Wednesday, May 28, 2008

Prof. Redish and Dennis Mrashko Post Article on Rules Enabling Act on SSRN

Professor Martin Redish (Northwestern) and Dennis Murashko (10th Circuit law clerk) have posted an Article entitled The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation on SSRN. Here is the Abstract:

The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation. The Act, moreover, prohibits the Court from promulgating rules affecting litigants' substantive rights. Courts and commentators have struggled for more than seven decades since the Act's passage to define the boundaries of what rules the Court can and cannot promulgate.

In this Article, we undertake to explain the lack of success in defining the contours of rulemaking under the Act and at the same time to glean from our analysis of the Act an important lesson in statutory interpretation. We offer two explanations, operating simultaneously, for why a definitive interpretation of the Act has eluded courts and scholars. First, and perhaps most importantly, the Act's sparse language is arguably susceptible to three alternative and textually plausible constructions. Second, previous constructions of the Act did not pay sufficient attention to statutory interpretation theories in applying one theory or another in interpreting the Act. We conclude that a proper understanding of the theory of statutory interpretation dictates adoption of only one of these constructions - what can be called the incidental effects approach. Under this interpretive model, identified most closely with the Supreme Court's often criticized decision in Burlington Northern, the Court is allowed to promulgate rules that do impact substantive rights, but do so only incidentally - in other words, when the primary goal of the rule is to regulate procedure.

We defend this interpretation of the Act by employing a theory of statutory interpretation that directs the interpreter to construe ambiguous text in light of objectively determined background purposes forming a foundation for a particular legislation. Drawing on the pioneering work of Professor Stephen Burbank, we recognize two purposes undergirding the passage of the Enabling Act. Our interpretation promotes both purposes, not elevates one at the expense of the other. In fact, this is where commentators (Professor Burbank among them) have gone astray in their suggested interpretations - they used statutory interpretation theories unmoored from the twin purposes of the Act.

In the end, the lesson for statutory interpretation theory largely parallels the lesson to be learned in construing the Rules Enabling Act. In both, when dealing with ambiguous legislation, it is common sense and an attempt to translate underlying purpose, objectively determined, into legal reality, rather than narrow, shortsighted adherence to textual literalism or legislative history, that more effectively further the goals of representative democracy.

A full-text version of this Article is available for download by visiting

Tuesday, May 27, 2008

Fifth Circuit Hears Case about whether Judge's Discretion Should Be Limited When Party Requests Venue Transfer

From the Texas Lawyer, May 22, 2008:

In a mandamus case that could significantly alter one of the hottest federal civil dockets in Texas, the full 5th U.S. Circuit Court of Appeals heard arguments on May 22 over whether a trial judge’s discretion should be limited when a party moves to transfer venue.

The stakes in In Re: Volkswagen are huge, because the case could end up stemming the tide of product liability suits filed in the Eastern District of Texas. Under 28 U.S.C. §1391(a)(1), plaintiffs can file product liability suits in “any district in which a defendant resides.” Plenty of plaintiffs have taken advantage of this law and filed in the Eastern District, where the judges are known for moving such disputes in an efficient manner and the juries have a reputation — rightly or wrongly — for being pro-plaintiff.

. . .

To move product liability cases out of the Eastern District, litigants must file a 28 U.S.C. §1404(a) motion asking a judge to weigh transferring the case to a more suitable jurisdiction for the sake of the convenience of witnesses.

It is the U.S. district judge’s discretion in weighing the §1404(a) transfer motion that is at the heart of the battle in In Re: Volkswagen, a mandamus receiving an unusual amount of interest from amici.

Danny Ashby, a lawyer for defendants Volkswagen of America and its parent company, argued to the 5th Circuit that U.S. District Judge T. John Ward abused his discretion by refusing to transfer the suit out of the Eastern District. Ashby argued that the suit has no relevant connection to the Eastern District. He also maintained that Ward gave too much weight to the plaintiffs’ choice of forum and that the witnesses in the case are located in Dallas.

In its brief to the 5th Circuit, the Volkswagen defendants also assert that federal judges in other districts in Texas routinely grant §1404(a) transfer motions in cases “covering distances substantially shorter than the 150 miles between Marshall and Dallas.”

“The parties and the witnesses have no connection to Marshall,” Ashby, a partner in the Dallas office of K&L Gates, told the 5th Circuit judges on May 22. “And the case has no connection to Marshall.”

But plaintiffs’ lawyer Martin Siegel argued that Ward gave proper weight to his clients’ choice of venue, that the witnesses located where the defendants want to try the case are not important to its resolution and that the defense has not proven that Ward’s venue ruling is an “extraordinary cause” that justifies mandamus.

“These are decisions best made by trial judges for docket-management reasons” as well as cost- and time-management reasons, argued Siegel, a Houston solo. “This case is the poster child for this. We’re now in our second year in this case.”

Monday, May 26, 2008

N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):

Courts have wrestled with the articulation of a clear test for interpreting what constitutes “prepared in anticipation of litigation” in the context of an IRS summons. The Supreme Court has not provided a controlling standard, and a split has developed between the various courts of appeal. The Fifth Circuit has articulated the “primary motivating purpose” test. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982) (“ ‘Litigation need not be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation’ ”) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.1981)). This test contrasts with the “because of litigation” test articulated by the Second Circuit in U.S. v. Aldman, 134 F.3d 1194 (2nd Cir.1998). The Second Circuit test affords broader protection than the “primary motivating purpose” test. Quoting from Wright & Miller, the Aldman opinion stated the test this way: “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Aldman, 134 F.3d at 1202 (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (1994)).

Wednesday, May 21, 2008

Eighth Circuit Finds SLUSA Preemption Based on Merely Coincident Nondisclosures

Per Siepel v. Bank of America, N.A., --- F.3d ----, 2008 WL 2079028 (8th Cir. May 19, 2008):

The Plaintiffs argue that the Bank's non-disclosure was not “in connection with” the purchase of the securities, such that the non-disclosure did not relate to a decision whether to purchase a security. See O'Brien v. Cont'l Ill. Nat'l Bank & Trust Co., 593 F.2d 54, 60 (7th Cir.1979). Under Dabit, however, “it is enough that the fraud alleged ‘coincide’ with a securities transaction-whether by the plaintiff or by someone else.” Dabit, 547 U.S. at 85. The Plaintiffs' complaint alleges nondisclosures that clearly coincided with the Bank's purchase of shares in the Nations Funds mutual fund. Given the identical coverage of Section 10(b) and SLUSA, it follows that the Plaintiffs' state-law claims are preempted.

Tuesday, May 20, 2008

Prof. Sharkey Posts Article on CAFA Settlement Notice Provision

Professor Catherine M. Sharkey (NYU) has recently posted an Article entitled CAFA Settlement Notice Provision: Optimal Regulatory Policy? on SSRN. Here is the Abstract:

Written for The University of Pennsylvania Law Review's symposium, Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005, this article evaluates the largely ignored settlement notice provision. The provision mandates that notice of every class action settlement within CAFA's purview must be provided to appropriate federal and state officials. The relevant federal official is the U.S. Attorney General. As for the states, the relevant official is the one who has primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State, or, by default, the AG of any state in which any class member lives.

Some legal scholars have begun to ask whether CAFA's settlement notice provision will awaken a sleeping giant. The scant existing commentary is of two minds. This perhaps reflects the juxtaposition of the lofty goal of aggressive AG monitoring against the fact that the AGs lack a precise mandate for official review, let alone any additional resources for the endeavor.

At this early juncture, it is too soon to tell whether the CAFA settlement notice provision will have a significant impact on private settlements of class actions, let alone any wider impact in motivating state AGs to police more aggressively certain types of misconduct. To the extent that the provision does have a marked effect, it will most likely be due to the increased availability of information and to the facilitation of coordinated efforts on behalf of groups of state AGs. In order to assess the overall effect, it is necessary to delve beneath the layer of formal activity to probe the informal bargaining and negotiation taking place at the behest of state AGs.

The settlement notice provision also provides a window on an even grander topic: CAFA as regulatory policy. As if through a refracting lens, the view of CAFA is transformed by the angle from which it is viewed. The Article sets forth a series of progressively unfolding dyads in order to highlight the state/federal, ex ante/ex post, and public/private dimensions of regulatory policy implicated by CAFA. This triad of matrices proves a useful framework for evaluating the design of optimal regulatory policy - a large domain of which the CAFA settlement notice provision is but one small part.

The full-text version of this Article may be downloaded by visiting

Monday, May 19, 2008

Prof. Sebok Posts Essay on Punitive Damages Limitations on SSRN

Professor Anthony Sebok (Brooklyn) recently posted a brief essay entitled After Philip Morris v. Williams: What is Left of the 'Single-Digit' Ratio? on SSRN. Here is the Abstract:

This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007. I argue that the ratio rule (that punitive damages that exceed a single digit ratio presumptively violate the Due Process Clause), introduced by the Supreme Court in Campbell, is unlikely to survive. I argue this for three reasons. First, many lower courts have found ways to conceal punitive damages awards that impose, in reality, ratios in the double-digits. Second, the refusal of the Court to reverse the plaintiffs punitive damages award in Williams under the ratio rule - given that it was 98 times the compensatory award - suggests that there are members of the Court who may not want to stand behind the rule. Third, the rule represents a mistaken critique of punitive damages.

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

Thursday, May 15, 2008

Prof. Moss Posts Article on Improving Discovery

Professor Scott A. Moss of the University of Colorado Law School recently posted an Article entitled Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age on SSRN. Here is the Abstract:

Cases are won and lost in discovery, yet discovery draws too little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes - which, unlike trials, occur in most cases. The growth of e-discovery - imprudent emails or lingering deleted files - makes cost issues increasingly salient, but the e-discovery rules just reiterate existing cost/benefit proportionality limits. Proportionality limits are topic of broad consensus among civil procedure scholars and economists, but this Article deems them impossible to apply effectively. Proportionality limits fail to curb discovery excess while also disallowing discovery meritorious cases need, resulting in bad cases dominating good ones. This Article acknowledges proportionality's flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery value and cost before parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article notes how discovery has more probative value in the closest cases - yet case merits remain uncertain in discovery, when courts cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts' best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence-gathering requires merits analysis, which requires evidence-gathering.

One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling equilibria into separating equilibria. Summary judgment can be this separation: cases going to trial, post-summary judgment, likely have 50/50 odds - better than most. Costly evidence has more value in 50/50 cases, where juries struggle to reach verdicts, than in weaker or stronger cases. Noone yet has proposed post-summary judgment discovery to redress the costly discovery dilemma (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are close calls warranting more fact-gathering, so some costly discovery regularly denied now should be allowed after summary judgment. Thus, the existing debate is too focused on discovery quantity; it should focus more on discovery timing. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process.

The full-text version of this article may be downloaded at

Wednesday, May 14, 2008

First Circuit Discusses Degree of Merits Inquiry Required at Class Certification Stage for Novel or Complex Theories of Injury

Per In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6 (1st Cir. Mar. 28, 2008):

In challenging the certification of the state damages classes, defendants primarily argue that the district court did not engage in a sufficiently searching inquiry into the relevant merits issues. It is a settled question that some inquiry into the merits at the class certification stage is not only permissible but appropriate to the extent that the merits overlap the Rule 23 criteria. Falcon, 457 U.S. at 160, 102 S.Ct. 2364; PolyMedica, 432 F.3d at 6; Mowbray, 208 F.3d at 297-98. It is less settled what degree of merits inquiry is required at the class certification stage, and the Supreme Court has not yet addressed the issue.

Our sister circuits agree that when class criteria and merits overlap, the district court must conduct a searching inquiry regarding the Rule 23 criteria, but how they articulate the necessary degree of inquiry ranges along a spectrum which suggests substantial differences. The Second, Fourth, Fifth, and Seventh Circuits coalesce around the more rigorous end of this spectrum, forbidding district courts from relying on plaintiffs' allegations of sufficiently common proof and requiring the courts to make specific findings that each Rule 23 criterion is met. Miles v. Merrill Lynch & Co. ( In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24, 33, 41 (2d Cir.2006) [hereinafter In re IPO ] (requiring a “definitive assessment of Rule 23 requirements,” including the resolution of relevant factual disputes); Unger v. Amedisys Inc., 401 F.3d 316, 321-22 (5th Cir.2005) (requiring courts to find facts favoring class certification through the use of “rigorous, though preliminary, standards of proof”); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir.2004) (requiring that “the factors spelled out in Rule 23 ... be addressed through findings”); Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir.2001) (requiring “whatever factual and legal inquiries are necessary under Rule 23” to “resolve the disputes before deciding whether to certify the class”). These circuits' use of the term “findings” in this context should not be confused with binding findings on the merits. The judge's consideration of merits issues at the class certification stage pertains only to that stage; the ultimate factfinder, whether judge or jury, must still reach its own determination on these issues. In re IPO, 471 F.3d at 39; Gariety, 368 F.3d at 366.

On the other end of the spectrum, the Third and Eighth Circuits sometimes require an inquiry into and preliminary resolution of disputes, but they do not require findings and do not hold that such inquiry will always be necessary. Blades, 400 F.3d at 567, 575 (holding that sometimes courts will be required to resolve factual disputes preliminarily at the class certification stage but voicing caution); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir.2001) (“A class certification decision requires a thorough examination of the factual and legal allegations.”); id. at 168 (“In reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action.”).

This court has grappled with this issue as well. We have said in Smilow that “a district court must conduct a rigorous analysis” of Rule 23's prerequisites, 323 F.3d at 38, and in Mowbray that “a district court must formulate some prediction as to how specific issues will play out,” 208 F.3d at 298. See also Tardiff, 365 F.3d at 4-5 (noting that the common presumption at early stages of litigation that “the complaint's allegations are necessarily controlling” does not apply in class certification situations because “class action machinery is expensive and in our view a court has the power to test disputed premises early on if and when the class action would be proper on one premise but not another”).

. . .

We do not need to resolve now whether “findings” regarding the class certification criteria are ever necessary, but we do hold that when a Rule 23 requirement relies on a novel or complex theory as to injury, as the predominance inquiry does in this case, the district court must engage in a searching inquiry into the viability of that theory and the existence of the facts necessary for the theory to succeed.

Tuesday, May 13, 2008

Prof. Burch Posts Article on Securities Class Actions on SSRN

Professor Elizabeth Chamblee Burch (Florida State) has recently posted an Article entitled Securities Class Actions as Pragmatic Ex Post Regulation on SSRN (forthcoming Georgia Law Review). Here is the Abstract:

Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.

Thus, understanding the full picture and texture of securities class actions necessitates a positive pragmatic account. This Article provides that account and thus fills a significant gap in the benefit side of academic cost-benefit literature. To do so, however, it self-consciously begins from a controversial assumption: namely, that securities class actions provide a public good. Integrating both public and private actors into ex post enforcement diminishes collective action dilemmas, agency inaction, and private resolution of public law matters through arbitration. Moreover, by supplementing ex post enforcement, securities class actions produce positive externalities, spillover effects that confer public advantages such as: innovation, cost-reduction through information sharing, deterrence, transparent judicial process, and both corporate and enforcement accountability. So, while I harbor no illusion that the securities class action always functions optimally and have a number of lingering doctrinal and jurisprudential concerns about its operation, I also recognize its comparative institutional capability to make transparent an increasingly opaque process, craft decisional rules and interpretations that guide future behavior, cultivate innovation, deter fraud, and hold corporations, exchanges, and the SEC publicly accountable. This piece thus envisions the ramifications of eliminating securities class actions by imagining a world with government-centric securities enforcement. That world, I contend, is one steeped in bureaucracy, one failing to produce behavior-guiding precedent, one filled with closed-door arbitrations, one neglecting nonprioritized misconduct, and one ignoring litigant preference for judicial process. In short, it is a world less preferable than our current system-flawed though it is.

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

Monday, May 12, 2008

Prof. Rose Posts Article on Reforming Securities Litigation Reform on SSRN

Professor Amanda Rose (Vanderbilt) recently posted an Article entitled Reforming Securities Litigation Reform: A Proposal for Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5 on SSRN. Here is the Abstract:

For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle. Is private enforcement of Rule 10b-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental and neglected question demands attention today more than ever. An academic consensus has now emerged that private enforcement of Rule 10b-5 cannot be defended on compensatory grounds, at least in its most common form (a fraud-on-the-market class action brought against a non-trading issuer). That leaves the oft-cited, but under-theorized, rationale that private enforcement is a necessary supplement to the securities fraud deterrence efforts of the SEC. When this justification is critically examined, however, it proves to be highly debatable. A rich body of law and economics scholarship teaches that bounty hunter enforcement of an overbroad law, like Rule 10b-5, may lead to overdeterrence and stymie governmental efforts to set effective enforcement policy (even assuming away strike suits and the agency costs that attend class action litigation); if private enforcement is nevertheless desirable - a contestable proposition - it is because a world without it might result in even greater deviations from optimal deterrence, due to SEC budgetary constraints, inefficiency and/or capture.

By carefully explicating the relative advantages and disadvantages of private Rule 10b-5 enforcement versus exclusive public enforcement, this Article reveals a new and better way to remedy the shortcomings of the Rule 10b-5 class action. It proposes that policymakers adopt an oversight approach to securities litigation reform by, for example, granting the SEC the ability to screen which Rule 10b-5 class actions may be filed, and against whom. By muting the overdeterrence threat of private litigation and placing the SEC back firmly at the helm of Rule 10b-5 enforcement policy, this approach would mitigate the primary disadvantages of private enforcement. Moreover, by preserving a private check on SEC inefficiency and capture and allowing the SEC to continue to supplement its budget with private enforcement resources, it would do so without eliminating the primary advantages of the current system. This approach stands in stark contrast to prior securities litigation reforms, which have responded to the overdeterrence threat posed by Rule 10b-5 class actions by rigidly narrowing the scope of private liability. This Article argues that an oversight approach to securities litigation reform carries distinct advantages over this narrowing approach, and ought to receive serious consideration in the ongoing policy debate.

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

Wednesday, May 07, 2008

Prof. Campbell Posts Article on Antitrust Pleading Standards after Twombly

Professor Charles Campbell has recently posted an Article entitled A 'Plausible' Showing after 'Bell Atlantic Corp. v. Twombly' on SSRN. Here is the Abstract:

The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of 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 entitle him to relief.

Now a complaint must provide enough facts to state a claim to relief that is plausible on its face. Only decided last May, Bell Atlantic has been cited in over 3,700 cases. Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly. Just what is a plausible showing that the pleader is entitled to relief under Rule 8(a)(2)?

I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.

Properly applied, this all . . . material elements standard satisfies Bell Atlantic's plausibility requirement in all respects. The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules' goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader's claim to make the notice in notice pleading meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

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

Tuesday, May 06, 2008

Prof. Parness Posts Article on Improving Judicial Settlement Conferences

Professor Jeffrey Parness has recently posted an Article entitled Improving Judicial Settlement Conferences on SSRN. Here is the Abstract:

Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences. I am also concerned. But the best response is not to abolish or severely restrict judicial settlement conferences. Rather, it is to add more formality and more written guidelines. New guidelines would discourage each trial court judge from marching to the beat of her own drummer. These guidelines should involve, as suggested by Professor Fuller, both more adversary control and more detailed and written criteria. In addition, new guidelines should expressly recognize that the claims and interests that might be discussed at judicial settlement conferences are far broader than the justiciable claims that might be discussed at trial preparation conferences. Thus, civil case settlement talks and civil case settlements subject to same-case judicial enforcement can involve many more claims, interests, and people than would have been involved in any adversarial proceedings. New written guidelines for federal and state courts should follow existing rules and statutes of general and particular applicability already operating in some American trial courts. As with pleading and discovery, new settlement conference guidelines should speak to differences between civil actions, including some distinctions between significant cases and routine cases and between civil cases based upon the amounts in controversy.

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

Monday, May 05, 2008

Prof. Ward Posts Article on Twombly

Professor Ettie Ward (St. John's) has posted an Article entitled The After-Shocks of Twombly: Will We Notice Pleading Changes? on SSRN. Here is the Abstract:

Bell Atlantic Corp. v. Twombly was decided by the Supreme Court on May 21, 2007 and has already been cited more than 9400 times as of March 15, 2008. The majority decision was not subtle in broadcasting its dissatisfaction with notice pleading, at least in large, complex, antitrust conspiracy cases, and the dissent certainly viewed the majority's holding as a procedural revolution. The bar and academic community immediately began to weigh in on the question of whether the new standard applies to all civil cases or merely to antitrust conspiracy cases, with most commentators concluding that the pleading landscape had shifted. The trickier questions are likely to revolve around how to satisfy the new standard in different cases. We have yet to parse fully the impact of Twombly or how significant an adjustment to practice it will require, but there will be a shake-out period (which is already well underway) in which lawyers will do what they have been trained to do namely, testing the limits and meaning of the new phraseology used by the Twombly court to measure and examine pleadings. This paper explores the contours of the post-Twombly landscape and discusses the questions and concerns that are likely to require court decision or rule revision.

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