Just a note for those not in my class who are looking for civ pro exam questions. They are all available here. (Warning for those in my class: not all of these are suitable for you - some cover material we will not do this semester.)
Jackson Key pressed me on the following problem: Twiqbal pleading standards, the Court has now made clear, come from Fed. R. Civ. P. 8(a)(2) (in particular, the requirement of "showing that the pleader is entitled to relief"). But 8(a)(2) says nothing about dismissal for failure to satisfy these standards. Initially, the proper response is a motion for a more definite statement under 12(e). But what if, after the attempt at a more definite statement, the plaintiff still fails to satisfy Twiqbal? In Twombly, the Court spoke of dismissal for failure to state a claim under Fed. R. Civ. P 12(b)(6), but we now know that's wrong. Stating a claim and satisfying 8(a)(2) are different things.
Fed. R. Civ. P. 12(e) says the following:
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
In Sierocinski v. E. I. Du Pont de Nemours & Co., 103 F.2d 843 (3rd Cir. 1939), the trial court relied upon the ability to strike the allegation of negligence that (it thought) failed to satisfy 8(a)(2). After striking the allegation, the complaint failed to state a claim and could be dismissed under 12(b)(6). But courts don't rely on that two-step process anymore. So what is their method of dismissal? I could not find a court saying explicitly, but the same problem has arisen for a long time with respect to Fed. R. Civ. P. 9(b)'s requirement for heightened pleading concerning allegations of fraud. Here courts simply appeal to 12(e) as the ground for dismissal. E.g. Ianieri v. Monmouth Investments, Inc., 1989 WL 150013 (D.N.J. December 08, 1989). My guess is that they consider the dismissal to be an "appropriate order." The same should be true of Twiqbal.
Amber Leasure-Earnhardt asked in the review session why Mullane's requirement of notice reasonably calculated to apprise the defendant of the pendency of the action would not require translation of the summons (and complaint?) into the defendant's language when one knows the defendant does not speak English. (After all, the known mental incompetence of the defendant cannot be ignored in determining what is adequate notice under Mullane.) But courts have found otherwise.
I have a new paper on Anglophone misinterpretations of Hans Kelsen up on SSRN. I concentrate on Andrei Marmor's reading of Kelsen in his book Philosophy of Law (and in his article on the Pure Theory of Law in the Stanford Encyclopedia of Philosophy).
I just found out that Alfred Hill, a professor of law at Columbia, died a few months ago. My initial exposure to Hill’s work on Erie was curious. In looking at current articles on the topic, I kept seeing citations to articles Hill wrote in the 1950s: State Procedural Law in Federal Nondiversity Litigation and The Erie Doctrine in Bankruptcy, both published in the Harvard Law Review, and a two-part article in the Northwestern University Law Review called The Erie Doctrine and the Constitution. Citation to half-century-old articles is very unusual in legal scholarship. When I took a look at them, I found out why they were so popular. They were masterful — written with a clarity and insight that made them still useful today. Indeed, I still often find that a Hill article is the only one that discusses a problem I am interested in. I then discovered that Hill, who I had assumed died decades before, was still alive. A number of times I considered emailing him to let him know how much I thought of his work. I never did and now, I’m sorry to hear, it is too late.
Well, the sabbatical is over and it's time to start posting again. First up: I've posted a new review on Jotwell about Scott Hershovitz's YLJ essay "The End of Jurisprudence."
The grades for the 2014 CivPro class have been uploaded onto banner. A very solid set of exams. Congratulations.
For this year's civpro class: Here are many essay and multiple choice questions and answers that are on material that we have covered up to this point. Note: recent SCt cases, such as Daimler may not be taken into account in the model answer. Many of these overlap with the ones I posted on 11/9, but this is a more comprehensive set.
Just posted a new paper on SSRN. I argue for the following limit on states' power to regulate the procedure of federal courts: Their power cannot be vertical. They cannot direct their law solely to federal courts within their borders. This may not seem that significant, but it is surprising how often law professors and federal judges have assumed that vertical power exists. They're wrong.