Wednesday, August 24, 2011

Call for Papers: Vanderbilt Law School Civil Justice Scholarship Workshop


Vanderbilt Law School and the Cecil D. Branstetter Litigation & Dispute Resolution Program announce the 2012 New Voices in Civil Justice Scholarship Workshop to be held at Vanderbilt on April 20, 2012, and invite submissions for the workshop.

The Branstetter Litigation & Dispute Resolution Program draws on a multimillion‐dollar endowment to support research and curriculum in civil litigation and dispute resolution. The idea for the Branstetter “New Voices” workshop is to draw together scholars on civil justice issues who are in the first seven years of their academic careers. Four to six scholars will be chosen by anonymous review of the submitted papers. The audience will include invited junior scholars, Vanderbilt faculty, and invited guests. Previous participants include Nora Freeman Engstrom (Stanford), Maria Glover (Harvard), Margaret Lemos (Cardozo), Jonathan Mitchell (George Mason), Myriam Gilles (Cardozo), Donna Shestowsky (UC Davis), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Pennsylvania).

The format for the workshop is designed to maximize collegial interaction and feedback. All participants will have read the selected papers. A senior faculty member will provide a brief overview and commentary on the paper, and then we are off and running with interactive discussion. Paper authors thus do not deliver prepared “presentations” as such. Rather, the overwhelming majority of each session is devoted to collective discussion of the paper involved.

Submission requirements.

1. Subject matter. Submitted papers should address an aspect of civil justice. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decisionmaking, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, we are very receptive to the full range of scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

2. Author qualifications. To be eligible to submit a paper, scholars must currently hold a permanent faculty position. In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2004.

3. Format. Papers may be sent in either Microsoft Word or Adobe Acrobat format. To maintain the anonymity of the process, please remove any self‐identifying information from the submission.

4. Deadline. Submissions should be e‐mailed to no later than January 13, 2011. Please include your name, current position, and contact information in the e‐mail accompanying the submission. We will contact you with our decision by February 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. If you have any questions, please email Professor Tracey George, Branstetter Program Director, at

Tuesday, August 16, 2011

Prof. Coleman Posts The Vanishing Plaintiff on SSRN

Professor Brooke D. Coleman (Seattle) has just posted an article entitled The Vanishing Plaintiff on SSRN. Here is the abstract:

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world - the one without Bakke and his legal claim - is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime - they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs - who the article calls vanishing plaintiffs - are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime.

This article may be downloaded by visiting

Wednesday, August 10, 2011

Ninth Circuit Notes Intracircuit Split Re Compatability of Rule 23 Class Actions and Collective Actions under FLSA

Per Pitts v. Terrible Herbst, Inc. --- F.3d ----, 2011 WL 3449473 (9th Cir. Aug. 9, 2011):

Aside from dismissing Pitts's entire action for lack of subject matter jurisdiction, the district court alternatively dismissed Count 2 of the complaint because, in its view, a Rule 23 class action could not co-exist with a related collective action under the FLSA. Although the question has divided district courts in our circuit, compare Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 994 (C.D.Cal.2008) (holding that “an opt-out class under Rule 23 is not inherently incompatible with an FLSA opt-in class”), with Williams v. Trendwest Resorts, Inc., 2007 WL 2429149, at *4 (D.Nev. Aug. 20, 2007) (holding that “the class action mechanisms of the FLSA and Rule 23 are incompatible”), we need not address this issue because Pitts has told us—as he told the district court—that he will not pursue his FLSA claims.FN6 Because Pitts has abandoned these claims, any alleged incompatibility between a Rule 23 class action and an FLSA collective action is not present in this case.

FN6. The only circuit that has addressed this issue has held that Rule 23 class actions and FLSA collective actions may peacefully co-exist. See Ervin v. OS Rest. Servs., 632 F.3d 971, 976–79 (7th Cir.2011).

Tuesday, August 09, 2011

Oregon's Miller Symposium Call for Papers

Symposium Call for Papers: Miller’s Courts: Media, Rules, Policy, and the Future of Access to Justice
April 13, 2012 University of Oregon White Stag Building Portland, Oregon

Oregon Law Review is currently accepting submissions for the forthcoming Miller Symposium and special issue of our 90th volume. The Miller Symposium will provide a forum for a comprehensive inquiry into questions of access to justice in civil law with special emphasis on the areas within which Professor Arthur Miller has worked throughout his career: rulemaking, class actions, media and the law, technology and privacy, legal pedagogy, and procedural policy.
The symposium will include a panel discussion involving some of the nation’s most distinguished scholars, judges, and practitioners. Panelists will examine Professor Miller’s influence in civil procedure and his contributions to the current civil law landscape. Panelists will also discuss, more generally, current and future trends relating to access to the civil courts.
Submissions may focus on specific contributions of Professor Miller with respect to access to justice inside and outside of the legal academy, or they may speculate as to future trends and possible issues relating to access in the civil system.

Submissions should follow these guidelines:
• Papers of any length will be considered, but OLR’s editors will give preference to articles under 25,000 words.
• Submissions should include a cover letter and a copy of the author’s curriculum vitae. In the cover letter, the author should describe generally the purpose (e.g., tribute, essay, substantive analysis, etc.) of the article. OLR will give preference to substantive articles within the areas described above.
• Submissions may be mailed to our editorial office or may be e-mailed to the Articles Editors at
• Submissions must be in MS Word format. • Submissions must be received by Monday, January 2, 2012.

Thank you for your interest.

Nadia Dahab Editor in Chief, Oregon Law Review

Monday, August 08, 2011

Call for Papers from the AALS Section on Civil Procedure

The Executive Committee of the AALS Section on Civil Procedure invites the submission of papers for presentation at the Annual Meeting of the AALS January 4-8, 2012, in Washington, D.C.

The topic of our panel will be "Procedural Reform: Rulemaking v. Legislation." Procedural reform has enjoyed (or suffered from, depending on one’s point of view) considerable attention in recent years. Procedural topics are in the mainstream media. Supreme Court cases have reformed bedrock principles. Rulemakers regularly debate amendments to an ever-expanding corpus of rules. And the legislative branch seeks to undo some reforms while initiating still others.

Papers presented by the panel will put this constellation of procedural reforms into a broader perspective. The debate about whether procedural reform is more properly the province of rulemakers or lawmakers is neither new nor, perhaps, even resolvable. Yet it remains relevant-urgent, even, given the stakes. We invite the submission of papers that address this topic in whole or in part. Papers that address the topic in whole might, for example, consider the use of empirical evidence as an engine for procedural reform. Or institutional choice theory might be applied to the procedural landscape. Even if your work addresses the topic only in part, we encourage you to submit it; we will be selecting papers so that the panel, considered as a whole, will generate a dialogue to explore the broader issues.

Drafts of the papers submitted for consideration must be received by September 1, 2011. Submissions should be sent to Papers already accepted for publication will be considered.