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The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75
September 4, 2014
The normative goals of the 1938 Federal Rules facilitated a reconceptualization of federal adjudication by welcoming into court a diverse array of persons who, as the century unfolded and equality mandates expanded, became rights-holders. As a consequence, courts came to serve as venues for democratic debates about rights and remedies. Seventy-five years later, that egalitarian project has contracted, and the Federal Rules have been refocused on management and judge-based settlement efforts. That...
September 4, 2014
The normative goals of the 1938 Federal Rules facilitated a reconceptualization of federal adjudication by welcoming into court a diverse array of persons who, as the century unfolded and equality mandates expanded, became rights-holders. As a consequence, courts came to serve as venues for democratic debates about rights and remedies. Seventy-five years later, that egalitarian project has contracted, and the Federal Rules have been refocused on management and judge-based settlement efforts. That...
“The Just, Speedy, and Inexpensive Determination of Every Action?”
September 4, 2014
On this seventy-fifth birthday of the Federal Rules of Civil Procedure, it is worth noting that the Rules are that rare public document that contains within its text the very metric for measuring its own success. Contrast, for example, the U.S. Constitution, which aims “to . . . secure the Blessings of Liberty to ourselves and our posterity”—an outcome not easily measured. But the Federal Rules say simply—in a phrase I first heard on my first day studying civil procedure—that they shall...
September 4, 2014
On this seventy-fifth birthday of the Federal Rules of Civil Procedure, it is worth noting that the Rules are that rare public document that contains within its text the very metric for measuring its own success. Contrast, for example, the U.S. Constitution, which aims “to . . . secure the Blessings of Liberty to ourselves and our posterity”—an outcome not easily measured. But the Federal Rules say simply—in a phrase I first heard on my first day studying civil procedure—that they shall...
Litigation Reform: An Institutional Approach
September 3, 2014
This Article is part of an ongoing study of the behavior of American political institutions, including courts, with respect to federal civil litigation. We are particularly interested in litigation that involves statutory private enforcement regimes and other legal provisions that predictably affect incentives and opportunities for access to federal court to enforce federal rights. We believe that, in order to understand the modern history of federal law that affects private enforcement and access...
September 3, 2014
This Article is part of an ongoing study of the behavior of American political institutions, including courts, with respect to federal civil litigation. We are particularly interested in litigation that involves statutory private enforcement regimes and other legal provisions that predictably affect incentives and opportunities for access to federal court to enforce federal rights. We believe that, in order to understand the modern history of federal law that affects private enforcement and access...
Fewer Lawyers Have Blogs, ABA Survey Suggests
September 3, 2014
The number of lawyers with legal blogs is dwindling, according to the latest Legal Technology Survey Report from the American Bar Association’s Legal Technology Resource Center. For 2014, 24% of respondents in the annual survey said that their firms have blogs, down from 27% in 2013. Asked whether they personally maintain a legal blog, 8% said yes, down from 9% in both 2013 and 2012.
September 3, 2014
The number of lawyers with legal blogs is dwindling, according to the latest Legal Technology Survey Report from the American Bar Association’s Legal Technology Resource Center. For 2014, 24% of respondents in the annual survey said that their firms have blogs, down from 27% in 2013. Asked whether they personally maintain a legal blog, 8% said yes, down from 9% in both 2013 and 2012.
Attorneys’ Fees in a Loser-Pays System
September 3, 2014
Attorneys’ fees fuel litigation, yet little is known about fees. Fee data are rarely available in the United States or in English rule, loser-pays jurisdictions. This Article analyzes fee awards in Israel, which vests judges with discretion to award fees, with loser pays operating as a norm. The 2641 cases studied constitute nearly all cases terminated by judgment in district courts in 2005, 2006, 2011, and 2012. Given many fee denials and fees that are well below client payments to attorneys when...
September 3, 2014
Attorneys’ fees fuel litigation, yet little is known about fees. Fee data are rarely available in the United States or in English rule, loser-pays jurisdictions. This Article analyzes fee awards in Israel, which vests judges with discretion to award fees, with loser pays operating as a norm. The 2641 cases studied constitute nearly all cases terminated by judgment in district courts in 2005, 2006, 2011, and 2012. Given many fee denials and fees that are well below client payments to attorneys when...
Rethinking Summary Judgment Empirics: The Life of the Parties
September 3, 2014
It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside. In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that unfairly and unreasonably burdens plaintiffs—perhaps even violating the right to a civil jury trial guaranteed by the Seventh Amendment. As litigation has more than one side, there is, of course, an opposing view—namely...
September 3, 2014
It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside. In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that unfairly and unreasonably burdens plaintiffs—perhaps even violating the right to a civil jury trial guaranteed by the Seventh Amendment. As litigation has more than one side, there is, of course, an opposing view—namely...
The Burdens of Pleading
September 3, 2014
To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal...
September 3, 2014
To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal...
Opening Address: Penn Symposium on FRCP
September 3, 2014
I imagine that many law students who arrive here at this famous law school in Philadelphia, the city that hosted our nation’s Constitutional Convention, dream of litigating epic constitutional cases before the United States Supreme Court. For the students here, perhaps learning the Federal Rules of Civil Procedure may not be very high on your priority list, but you will find out—as I found out—that command of procedure is essential to a litigator’s prowess. "More broadly, the way we fashion...
September 3, 2014
I imagine that many law students who arrive here at this famous law school in Philadelphia, the city that hosted our nation’s Constitutional Convention, dream of litigating epic constitutional cases before the United States Supreme Court. For the students here, perhaps learning the Federal Rules of Civil Procedure may not be very high on your priority list, but you will find out—as I found out—that command of procedure is essential to a litigator’s prowess. "More broadly, the way we fashion...
Consumer Class Actions in Which No Harm Occurred
September 2, 2014
Many consumer protection statutes contain a provision for the award of statutory damages and for the recovery of attorney...
September 2, 2014
Many consumer protection statutes contain a provision for the award of statutory damages and for the recovery of attorney...
Lex Machina Named A Best New Legal Service
September 2, 2014
Lex Machina, creator of Legal Analytics®, a new category of legal technology, has been awarded top honors in The Recorder’s...
September 2, 2014
Lex Machina, creator of Legal Analytics®, a new category of legal technology, has been awarded top honors in The Recorder’s...
