The Continuing Gloom about Federal Judicial Rulemaking

In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in “crisis” and its fans are experiencing “malaise.” This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development. These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee’s fault. Like the wayward star, it should change, a process that starts by understanding the burdens and costs imposed by every procedural change

Rational Actors, Class Action Waivers, and the Emergence of Mass Individual Arbitration Demands

Part I of this Article gives a brief overview of the FAA, including the four understandings that underlay the Court’s jurisprudence for six decades, and the radical transformation wrought by the Court’s rejection of those understandings in the past four decades. Part II discusses how the transformation of the FAA led plaintiff and defense counsel, as rational actors, to adopt positions that ultimately led to the focus on class action waivers. Part III analyzes the Court’s decisions from 2013 to the present and draws at least some tentative conclusions about where things stand a decade after Professor Wasserman raised these issues. It concludes by discussing how the emergence of mass individual arbitration claims is causing businesses to rethink their four-decade effort to force individual plaintiffs into arbitration

Front-Loading, Avoidance, and Other Features of the Recent Supreme Court Class Action Jurisprudence

This Article discusses each of the thirteen Supreme Court decisions with the goal of drawing at least tentative conclusions for their impact on federal class practice. The thirteen decisions may be placed into five groups. Only three of the cases directly involve the general interpretation and application of Rule 23, while the other ten fall into four particular substantive areas. Reflecting these divisions, this Article proceeds in five parts. Part I discusses the three cases directly interpreting Rule 23. Part II addresses the three decisions involving securities classes brought under Rule 10b-5. Part III discusses the three decisions involving the Federal Arbitration Act. Part IV engages the two decisions addressing the non-party status of class members. And Part V concerns those decisions interpreting specialized grants of federal jurisdiction

Toward a Principled Statutory Approach to Supplemental Jurisdiction in Diversity of Citizenship Cases

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367