The Other Side of the CAFA Effect: An Empirical Analysis of Class Action Activity in the Oklahoma State Courts

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Ed Cooper, Rule 56, and Charles E. Clark\u27s Fountain of Youth

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, the end product bears the unmistakable Clark stamp. 4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity procedure, Clark mounted a multi-front campaign to get the Court to change its course.7 His campaign succeeded.8 Clark also succeeded in persuading the Court to adopt a centralized drafting process, with the work to be done by a select group of experts, many of whom Clark himself recommended.9 Finally, Clark maneuvered to be named Reporter,10 a position that no doubt contributed to the Civil Rules bearing his stamp. In this Essay, however, I want to focus not on the events that led up to the 1938 rules but on what happened after they took effect. Was the work of the Advisory Committee done? Did the Advisory Committee even exist anymore? If so, what was the Committee\u27s assignment? It should come as no surprise that, just as Clark had strong views about the initial drafting of the rules, he also had strong views about how they should be superintended. Clark lobbied for the creation of a standing Advisory Committee, and he wrote extensively about what the work of the Committee should be. In one capacity or another, Clark continued to toil in the rulemaking fields for another twenty-four years until his death in 1963.11 This Essay proceeds in three parts. Part I looks back at the development of the institution of the standing Advisory Committee. It tells two stories. First, it provides a quick history of what the Advisory Committee did after 1938 and how it came to be in its current form. Second, it sets forth Clark\u27s very influential views about what role a standing Advisory Committee should play. Part II returns us to modern times. It analyzes the most recent set of major amendments to the Civil Rules-the 2010 amendments to Rule 56-to see how that project relates to Clark\u27s views on the continuing rulemaking process. Part III concludes with a few reflections on Ed\u27s role in advancing some of the rulemaking values that Clark held so dear

Must, Should, Shall

This Essay has three parts. Parts I and II look backward. Part I tells the story of the switch from ―shall‖ to ―should‖ in 2007. Part II then explains the events that led the Advisory Committee to propose the amendment that, if it takes effect as scheduled on December 1, 2010, will restore ―shall‖ to the text of Rule 56. Part III looks forward. It addresses a single, critical question: how much discretion to deny summary judgment will trial judges have once ―shall‖ is restored? The answer is this: with the restoration of ―shall,‖ trial courts will return to whatever measure of discretion they had on November 30, 2007 – no more, no less

Bifurcation Unbound

The bifurcation of issues in a federal trial under Federal Rule of Civil Procedure 42(b) offers many benefits for both litigants and the judiciary. One of the greatest potential benefits of issue bifurcation is increased judicial efficiency. Frequently the jury\u27s disposition of the first issue will obviate the need to try the remaining issues. Despite this efficiency potential, bifurcation is controversial. Historically, the opponents of bifurcation have leveled three primary criticisms against bifurcation: (1) that it skews verdict outcomes in favor of defendants, (2) that it infringes on the role of the civil jury, and (3) that it creates a sterile and unnatural trial atmosphere. The critics have carried the day with a majority of federal judges, who employ a presumption against issue bifurcation and bifurcate infrequently. This Article scrutinizes the reasons underlying the presumption against issue bifurcation and concludes that the presumption is unjustified. Accordingly, this Article proposes changes to Rule 42(b) that would eliminate the presumption against issue bifurcation and communicate to federal judges two important messages: (1) bifurcation is not antithetical to the role of the civil jury or justice, and (2) in the long run, analyzing each case to identify issues to try separately should improve judicial efficiency

They Were Meant for Each Other: Professor Edward Cooper and the Rules Enabling Act

This introduction to the essays in this Symposium illuminates Professor Ed Cooper\u27s years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper\u27s many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees\u27 work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over his twenty years as Reporter. It was during these years that the Committee developed an approach to rulemaking that was at once transparent and empirical, with multiple opportunities for participation by members of the public, the bench, the academy, and the bar; with many informal opportunities for consultation with members of Congress and the Executive Branch; and with an understanding by the Committee of its role in relation to the courts, Congress, and the Executive. Two episodes of recent rulemaking and related activity are described as examples of how well the Rules Enabling Act is working, in large part because of the very flexibility and discretion the Act has provided since 1934. One of those episodes occurred when Judge Anthony Scirica chaired the Standing Committee and then- Judge David Levi chaired the Civil Rules Committee. The other occurred when Judge Lee Rosenthal and Judge Mark Kravitz were the chairs of the Standing and Civil Rules Committees, respectively. Both episodes provide a basis for optimism about the future. And they make clear Ed Cooper\u27s continued steady role in supporting and cultivating the robust good health of the rulemaking process and the institutional values it protects

Driving Misjoinder: The Improper Party Problem in Removal Jurisdiction

This Article explores, and ultimately embraces, a new exception to the complete diversity rule in removal cases: the doctrine of procedural misjoinder. We argue that the doctrine offers federal courts a vital tool with which to police joinder gamesmanship. Absent this power, plaintiffs may preclude defendant access to federal courts by the relatively simple expedient of joining in state court largely unrelated claims against or on behalf of non-diverse parties. The resulting lawsuit thus fails the complete diversity test, rendering such cases removal-proof. Like fraudulent joinder, the long-standing practice of ignoring non-diverse parties against whom no valid claim may be asserted, the doctrine of procedural misjoinder would permit federal courts to disregard any diversity-destroying parties who have been improperly added to the state lawsuit. Because access to federal courts is at stake, we believe federal courts should adopt this new doctrine, applying federal joinder standards to test the legitimacy of plaintiffs’ party alignments before denying removal jurisdiction

Breaking the Boilerplate Habit in Civil Discovery

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider how they might contribute to the cause, we offer three points of guidance. First, while boilerplate objections get the most attention, boilerplate requests are an equal part of the problem. The 2015 amendments target both. Second, we must be careful not to equate “pattern” with boilerplate. As several recent projects have shown, the use of topic-specific discovery protocols—which use carefully-crafted standard requests—can start the parties on the path to tailored, targeted, efficient, and fair discovery. Third, judges should resist using waiver as a standard sanction for boilerplate objections. When the responding party has no viable objections to make, waiver provides no deterrence against boilerplate objections. And when the discovery requests exceed the boundaries of permissible discovery, waiver can lead to the parties getting bogged down in the discovery of irrelevant matters. While judges are often reluctant to go down the path of imposing cost sanctions, in many cases that approach will supply both a more effective deterrent and a more calibrated response. The goal is worth it; reducing boilerplate in discovery is an important step toward achieving proportional discovery

The Reappearing Judge

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