Advanced Civil Procedure Outline

Adv. Civ. Pro. Outline

1. INTRODUCTION

1. The FRCP: Rules? Procedure?

Thu., Mar. 27

Bell Atlantic v. Twombly (U.S. 2007)

o Point of this exercise is to show Twombly is about way more than just pleading:

· Institutional Choice

· Rulemaking

· Adjudication

· Statute

· Why did they change the pleading standard in court rather than the rules process?

· Meta-Procedure (Institutional Design) (rules about rules)

· Transubstantivity

· Spontaneous or Deliberative Judging

· Active vs. Passive Case Management

· appellate oversight vs. distict court discretion

· Courts cannot spontaneuously decide and congress can

· Courts more concerned about getting it right when stakes high

· Procedure (Legal Design)

· Class Action (way to turn a chump change suit into something viable)

· Discovery

· Pleading

· (Attorney’s fees from D)

· Experts?

· Substantivity

· Sherman Act/ Conscious Parallelism

o Empirical Questions:

o How much does discovery cost?in which cases?

o What effect does a new rule/case have? How much is it changing it?

§ Why didn’t the supreme court just approve the district courts decision

o How active are judges in controlling discovery?

o Do cases actually settle because of discovery costs?

SOURCES OF PROCEDURAL LAW

2. Rulemaking; Procedural Statutes

Mon, Mar. 31

28 U.S.C. §§2071–2074, 2077

o 2072(a)- says the supreme court makes the rules, but there are really all of these committees in a hierarchy that do it (fleshed out in 2073)

o 2072(a) and (b) -general rules of practice and procedure, that can’t abridege modify, or enlarge any substantive right.

o 2072(c)- specifically makes clear , when a judgement is final for purposes of appeal, is procedural

o Because lots of district/appelate court decisions are not appealable, they end up being the ones actually making the rules and not SCOTUS.–> particularly the case with e-discovery rules (like Zubulake)

·

Ways of making rules

Features

REA

Extent of Deliberation

quality

Adjudication

Scope of constituencies

Quality; winner/losers

Statute

Timing/retrospective

Surprsise/reliance

Proactive/Reactive

Form of output

o Might not matter what the format of the rule is at the end of the day because all groups are reacting to one another. Court can interpret what congress comes up with; and congress can make a new statute to undo court.

Administrative Office, Overview for the Bench, Bar, and Public (2014)

· Rulemaking Process (2-3 years)

o Advisory Committee

o Standing Committee

o Notice and comment period

o Back to Advisory Comm–> Standing Comm

· If major canges, back to notice

· If not…

o Judicial Conference

o Supreme Court

o Congress

· Rules include (based on REA):

o General rules of practice and procedure (usually clear what this means)

o Evidence

o Finality for appeal

o NOT substantive rights

· (questions to keep in mind) –Whose making the rules, what are there interests, to what extent are constituencies represented in this process different than political process; differences btwn statute and rules might come from who is making them

· Why is this better than changing law through case law?

§ Clearer, more straightforward.

· Why not have congress do it, and get even more input then?

§ Biggest changes have come out of congress

§ Perhaps congress is good for big changes, but can’t be as carefully deliberated

Daugherty v. American Express (W.D. Ky. 2011)

§ Issue: are files turned over to expert discoverable when there was a intermediate rule amendment on the issue?

§ Judge can retroactively apply rule if it is “just and practicable”

· Close of discovery timeline made it this way

· So applied rule amendmnet retroactively

§ Concerns: want to apply new rules if they are good vs. reliance concerns

28 U.S.C. § 1923

Alyeska Pipeline v. Wilderness Soc’y (U.S. 1975)

§ Appellate court says they can’t build the pipeline. But congress jumps in and makes a statute saying they can. Kills case/moot.

§ Hubbs says this whole case is stupid because there wasn’t a prevailing party or a losing party. It became MOOT! So attorney’s fees shouldn’t be relevant.

· Alyeska wasn’t even D, they intervened, but can’t get fees from US or alaska

§ Holding: cout does not award feed bc does not fall under any exceptions to the American rule

· Seems like the wrong case to rule on atty fees bc no real prevailing party, but hard to deal with this issue in high courts when rarely comes up on appeal

· Congress later responds to this holding (see below) and expands who can get fees for acting as public atty general.

§ Exceptions to American rul