Wednesday, July 29, 2009

Prof. David Marcus Posts Article on Trans-Substantivity

Professor David Marcus (Arizona) has posted an Article entitled The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure on SSRN. Here is the Abstract:

The trans-substantivity principle – the same procedural rules should apply regardless of the substance of the case – has been a central feature of modern federal civil procedure since its beginnings in 1938. In recent years, however, a number of scholars have questioned whether the principle should continue to govern procedural rulemaking. Mirroring this scholarly disquiet, legislatures have crafted substance-specific rules to apply in heavily-litigated areas of substantive doctrine. The future of trans-substantivity is uncertain. In this symposium contribution, I use the history of the rise of trans-substantivity in American civil procedure as a basis to predict its role going forward. This history, beginning in the early nineteenth century and culminating in 1938, illuminates the jurisprudential foundation for trans-substantivity, its normative implications, and the political role it played in assisting the development of court-supervised rulemaking. I then assess the current status of trans-substantivity. Recent legislative developments call the jurisprudential and normative bases for trans-substantivity into question, but court-supervised rulemakers continue to limit themselves to trans-substantive rules. Guided by this pattern of institutional behavior, I argue that the principle, however theoretically suspect, has a role going forward as a mechanism for the allocation of rulemaking power. Court-supervised rulemakers can strengthen their legitimacy if they limit themselves to trans-substantive rules, while substance-specific departures from the principle should come from legislatures.

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

Friday, July 24, 2009

Prof. Casey Posts Article on Class Action Criminality

Prof. Lisa Casey (Notre Dame) has posted an Article on SSRN entitled Class Action Criminality. Here is the Abstract:

This paper examines the criminal prosecution of Milberg Weiss, formerly the most successful plaintiffs’ securities class action firm in the country, for allegedly making undisclosed incentive payments to class representatives. In particular, the article examines the government’s primary charge - that the firm’s practice violated the “honest services” theory of mail and wire fraud. The government’s application of this theory presumes a fiduciary relationship between the class representatives and the class which has never been clearly delineated and, indeed, is against the weight of case law and the realities of class action litigation.

The Article proceeds on two different levels. First, it delineates the theoretical underpinnings of the indictment, including the substance of the fiduciary duties the government alleged that class counsel and class representatives owed to absent class members. The Article demonstrates that the tri-partite relationship between class counsel, named plaintiffs, and class members is sui generis and cannot be equated with the traditional attorney-client relationship. It also reveals the inchoate nature of the “honest services” fraud charge which relied on these presumed duties. On a second level, the Article reviews the historical context necessary to understand the charges raised by the prosecution. Finally, the Article raises questions about how the criminal prosecution of Milberg Weiss impacts the on-going public policy debate over the extent to which private securities litigation acts an important tool to supplement the government’s enforcement of the federal securities laws.

The full version of the Article may be downloaded by visiting

Thursday, July 23, 2009

Sen. Specter's Notice Pleading Restoration Act

Senator Arlen Specter has introduced a bill entitled the Notice Pleading Restoration Act in an effort to overrule Twombly and Iqbal. The text of the bill is available here. (Thanks to PrawfsBlawg for this link; visit them for more thoughts).

Sunday, July 19, 2009

Prof. Main Post Article on Substance/Procedure Dichotomy on SSRN

Professor Thomas Main has recently posted an article entitled The Procedural Foundation of Substantive Law on SSRN. Here is the Abstract:

The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible—leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about the procedural foundation of substantive law within a broader discussion of the origin and status of the substance-procedure dichotomy.

This Article can be downloaded by visiting