Federal Procedure Research Articles

How much do Mexicans pay for regulation in the transportation of oil products?

The new oil derivatives transportation scheme proposed by the 2013 Mexican Energy Reform allowed new participants to enter the sector. The new legal framework requires fulfilling many requirements and corresponding duties for the transportation of oil products. The Mexican government already has an institution dedicated to measuring the regulatory cost of each federal procedure. This work aims to quantify the regulatory costs associated with the procedures and their compliance to obtain permits for transporting oil products by truck. We use the standard cost method to measure these costs, considering all associated costs. The results showed that two government offices did not adequately measure these costs. They did not consider relevant information on frequency and opportunity costs, resulting in undervaluation and leading to wrong expectations. As a result of this research, we provide a more accurate way of estimating these costs, which brings greater certainty in the budgeting of these projects and, therefore, increases the probability of survival and success.

미국 연방 대표당사자소송과 주 대표당사자소송의 비교 연구

In this article, a class action under the federal rules of civil procedure and a class action under the state rules of civil procedure were compared. It is not virtually easy to compare all states, and I focused on the state of Missouri that adopted the federal rule on average, and the state of Mississippi that did not adopt a class action.
 Most states in the United States used the Federal Rules of Civil Procedure, with minor modifications, without major changes. In the case of Missouri, it was found that the federal rules were in fact used as they were and some of the requirements of the representative party were interpreted with some flexibility. On the other hand, Mississippi, when it enacted the state civil procedure rules in 1982, refused to accept class action system and operated its case law and statutory laws independently. As a result, many precedents regarding class action in Mississippi have been upheld : a class action without explicit statutes and provisions is impossible, a class action that existed before the 1980s in lower courts is not possible, and unlimited permissive joinder and consolidation that were substitutes for class action are rejected.
 Still, there were lessons to be learned from the case of Mississippi. First, in spite of no class action in Mississippi, most relief can be obtained through federal procedure. However, in the case of Mississippi's own human rights violations or small businesses in Mississippi, it is necessary to introduce a class action in the state.
 Second, the class action in Mississippi is very closely related to tort law reform. In particular, it is worth noting that proportional liability and limitation of liability introduced in the state of Mississippi should be considered as an alternative in order to expand the class action system in Korea. This means that it is necessary to balance what kind of discussions were made for the defense of the defendant while discussing class action and punitive damages for the relief of the plaintiff. At least in the case of companies with minor negligence, as a feasible method, it seems that the defendant should be sufficiently defended by assuming the case of faithfully fulfilling the duty of care.
 Third, the attempt to operate Rule 20(permissive joinder of parties) and Rule 42 (consolidation) of the Mississippi State Rules as a substitute of class action can be highly evaluated. This is because the attempt to quickly relieve small damages of large number of people in one procedure can be evaluated as an attempt to guarantee the citizens' right to access justice. However, this has fundamental limitations in relation to class action. In Rule 20 of the State Rule, it seems that it is difficult to define a class action only by the commonality of factual issues or legal issues, and the problem of conflict of interest is also difficult to resolve.
 In Korea, there is also a discussion on the addition of an ordinary co-litigation, but this is a problem that should be applied to an ordinary co-litigation, and it is not intended to be converted into a class action. However, although permissive joinder as the addition of an ordinary co-litigation is a legal doctrine that has been abandoned by the Mississippi state precedent, I think that the attempt to resolve collective disputes through permissive joinder is positive enough.

Why Do In-State Plaintiffs Invoke Diversity Jurisdiction?

The traditional rationale of federal diversity jurisdiction is to protect out-of-state parties from the risk of an appearance of state-court bias in favor of an in-state adversary. Yet a strikingly high percentage—more than 50 percent—of original domestic-diversity cases are filed by in-state plaintiffs. Why these in-state plaintiffs invoke diversity jurisdiction is a question that has largely been ignored in the literature. Drawing on docket data and an original dataset based on responses to a survey sent to more than twelve thousand attorneys who represented in-state plaintiffs in domestic-diversity cases, I find that these plaintiffs can be grouped into roughly three categories. The first category is composed of tort cases, filed by individual plaintiffs against corporate defendants, that are eligible for consolidation with an existing federal multi-district litigation. The second category is composed of in-state corporate plaintiffs represented by attorneys who tend to represent defendants in federal court and who invoke diversity jurisdiction primarily based on perceptions of advantages of federal procedure, efficiencies and conveniences of federal practice, and superior quality of federal court. The third category is composed of in-state plaintiffs represented by attorneys who tend to represent plaintiffs in state court and who invoke diversity jurisdiction to preempt the defendant’s likely removal of the case. My findings offer grounds for reforming diversity jurisdiction in more tailored and nuanced ways than have previously been proposed.

US EPA won’t appeal ruling against science advisers policy

The US Environmental Protection Agency says it won’t appeal a court ruling invalidating its controversial policy banning recipients of EPA grants from serving as agency science advisers. The court’s decision does not affect the current makeup of advisory panels, and the agency hints that it may try another means to continue to exclude grant recipients from those panels. A federal trial court in New York struck down the policy in April, saying the agency failed to follow required federal procedure when it adopted the policy in 2017. The court found the agency had provided no evidence that grant recipients who had served on advisory committees in recent decades were biased. But the EPA says the court’s reasoning empowers the agency to issue a blanket prohibition against grant recipients from serving as science advisers if it issues a formal regulation that garners concurrence from the federal Office of Government Ethics. That

Civil and Criminal E-discovery in the United States Federal Procedure and its Ramifications to South Korea

Civil and Criminal E-discovery in the United States Federal Procedure and its Ramifications to South Korea

Fomenting Authoritarianism Through Rules About Rulemaking

In recent years, the President of the Unites States has assumed increasing power. Among other things, the President now makes decisions that federal administrative agencies previously would have made. This trend is not new, but it has reached a new height in the current administration. Some of the reasons for this development are obvious: the Congress’s lawmaking ability has atrophied, and technology and the media encourage the President to take credit for federal policy decisions. Just as Congress’s inaction contributes to this trend, so too does agency inaction. When agencies cannot make or change policy in a timely and efficient manner, the President is more inclined to do it himself. Agency rulemaking has become extremely resource-intensive making them increasingly unable to respond to changing circumstances in a timely fashion. That is due in part to requirements imposed by the Congress, the President, and the courts. Though well-intentioned, the judicial rules about rulemaking are particularly problematic. Many of those rules conflict with the Administrative Procedure Act (APA), the primary statute governing federal agency procedure and judicial review. That conflict is of great concern because the passage of the APA in 1946 marked a significant moment in deliberative democracy: after years of debate among the Congress, the Executive Branch, and the public, Congress passed the APA unanimously, and the President signed it into law. The APA balanced multiple values, concerns, and variables. When the courts to disturb that balance, they raise exceptional separation-of-powers and political-accountability concerns. The judicial rules governing agency rulemaking also are problematic because they have unanticipated consequences. Of the three branches of the U.S. government, the courts are the least capable of considering various positions and proposals and predicting which approach to administrative policymaking will be most effective. Thus, their rules seeking to enhance transparency, accountability, and public participation in administrative processes yield other results as well. Among other things, the courts’ rules about rulemaking have fomented the growth of authoritarianism by making agency rulemaking more difficult. Changing times require changing policy. Congress’s policymaking ability, however, is severely compromised, and federal agencies are overburdened by procedural requirements. Thus, the President has stepped into the policymaking breach. The courts should recognize their role in the changing power structure of the U.S. government and adhere to the careful balance achieved in the APA. They should require agencies to adhere to the APA’s requirements without overburdening them.

Judicial Resistance: Mandatory Arbitration as Federal Commandeering

This Article argues that the current doctrine of preempting state substantive law in favor of the Federal Arbitration Act (FAA) violates core federalism principles generally, the Tenth Amendment specifically, and is contrary to well-established anti-commandeering and judicial federalism rules. These authorities are all concerned with a core federalism principle: state sovereignty. The states retained sovereignty when they joined the Union. The Tenth Amendment expressly enshrines this retention. Modern federal court doctrine, which imposes federal arbitration law on the states, encroaches on retained state sovereignty by preempting state substantive law. This is erroneous regardless of whether the FAA was enacted as a rule of federal judicial procedure or as an exercise of Congress’s substantive Commerce Clause power. Encroaching on the state’s retained sovereignty, as the FAA does, violates the fundamental federalism principle and opens a path toward disrupting the power balance between the state and federal governments that Madison considered crucial to protecting individual liberty. When one sovereign comes to dominate in a federalist system, that government begins to lose its federalist character. Consequently, conflict about the FAA is no dry procedural dispute — it is a battle over the republic’s core principles. State courts should continue to serve their federalist role and fight in their corners, and the U.S. Supreme Court should revisit its FAA interpretation.

The Courts and the People in a Democratic System: Against Federal Courtss Exceptionalism

The law of federal procedure is on the Supreme Court’s docket for the October 2016 Term, with granted petitions addressing pleading sufficiency, standing, and jurisdiction. And, of course, the Advisory Committee on Rules of Civil Procedure continues its annual tinkering with the rules in an elusive effort to micromanage federal practice. That reality, coupled with recent exchanges with colleagues on procedural interpretation and reform, has prompted these reflections on the role of procedure in our democratic system. This short essay is intended to summarize those reflections, which are more extensively elaborated in my other works.

Seeing through a Preamble, Darkly: Administrative Verbosity in an Age of Populism and Fake Newss

How does an ordinary citizen find out what the government is doing and why? One early method was pioneered by the federal Administrative Procedure Act (the “APA”). The APA law requires that when a government agency finalizes a rule, it publishes a preamble containing a “concise general statement of the rule’s basis and purpose.” But the public truth-telling function of these “preambles” has become undermined by their spectacular length, often to more than a thousand pages longer than their parent rules, making it virtually impossible for anyone (even lawyers!) to properly read them. Worse, the courts have made it clear that no rule will ever be thrown out for having a preamble that is too long — but a preamble might doom its parent rule by being too short. This Article argues that the growth of the thousand-page preamble is not only a crying shame but quite possibly a shaming crime. The APA’s command that preambles be “concise,”, read in its proper context, requires an agency to limit what it says so as to communicate a rule’s basis and purpose effectively with the public, even (indeed especially) if the public does not comment on the proposed rule. Alas, without much thought or analysis, both agencies and courts re-purposed the preamble to facilitate technical, “hard-look” review of an agency’s reasoning, rather than serving the separate statutory mandate of effective public information. By reading “concise” out of the statute, agencies and courts unintentionally eliminated a popular counterweight built into an act that otherwise empowered elites. By so doing, courts have deprived the administrative process of a measure of popular legitimacy, as well as a promising means of fighting false information in political life — by requiring agencies to tell a plain, accessible, and true story about a rule, and be scrutinized in their public engagement by the judiciary. I argue that in this populist moment, where the legitimacy of the administrative state is under strain, it is time to seriously consider reviving “concise,” and its vision for popular accountability, to bring a disenchanted public closer to the administrative process.

The Legacy of Ruth Bader Ginsburg. By Scott Dodson, ed. New York: Cambridge University Press, 2015. 314 pp. $29.99 cloth.

The Legacy of Ruth Bader Ginsburg. By Scott Dodson, ed. New York: Cambridge University Press, 2015. 314 pp. $29.99 cloth.Associate Justice on U.S. Supreme Court. Law professor. General Counsel for ACLU's Women's Project. Pop culture icon. As Scott Dodson puts it, Ruth Bader Ginsburg's impact on law over last half-century cannot be overstated (p. ix). While her successful challenges gender norms and her fiery dissents on behalf of voting rights and equal pay are source of much of her popular acclaim, this fine collection of essays also explores her contributions fields of federal procedure, jurisdiction, federalism, international law, criminal procedure, and tax law. The collection is divided into four parts: Shaping a Legacy, and Remedies, Structuralism, and The Jurist. As is perhaps befitting a collection devoted detailing her wide-ranging legacy, contributors include law professors, media stars, a practitioner, a historian, a sitting judge and even a short previously published piece penned Ginsburg herself.As contributor and Legal Affairs Correspondent for National Public Radio Nina Totenberg succinctly suggests Ginsburg way world is for American (p. 4). Slate Magazine Senior Editor Dahlia Lithwick notes that it has become somewhat cliche refer Ginsburg as the Thurgood Marshall of Women's Rights (p. 222). Many of essays in this collection detail exactly how this shift took place, emphasizing careful legal, professional, and personal strategies that Ginsburg employed, slowly but surely upending gender norms that had oppressed women for years. The collection includes several essays that show just how pervasive those sexist norms were in both private and public life, and how they were addressed Ginsburg as a law professor, attorney, judge and justice. Ginsburg herself was passed over for clerkships and otherwise professionally demeaned due her gender despite having attended elite schools. Even after obtaining a position as a law professor Ginsburg felt compelled conceal a pregnancy for fear of being denied tenure. An essay on pregnancy discrimination as sex discrimination Neil S. Siegel and Reva B. Siegel suggests connection between this experience and Ginsburg's advocacy in this area. As historian Linda Kerber's contribution shows, Ginsburg's literally changed rules about gender, using law question long-standing assumptions that men are preferable women, before which, as Ginsburg herself has said, the Supreme Court never saw a sex classification it didn't like (p. 38).Many of essays in this collection explore strategies and arguments that Ginsburg has used affect these changes. As Dahlia Lithwick's essay notes, Ginsburg was not a product of women's liberation movement. Rather her calling law was a response injustices that resulted from McCarthyism. Although her professional disposition is that of a careful jurist Lithwick argues that she is indeed a feminist if one that is by choice and necessity, a firebrand made of ice (p. 222). Calling Ginsburg's approach gender reconstructive feminism, Joan C. Williams distinguishes it from Catherine MacKinnon's more radical feminism unmodified. While Ginsburg's approach has been dismissed some as merely reformist, Williams argues that Ginsburg's goal has been no less than to reconstruct breadwinner and caregiver roles and, more generally, relationship of market and family work (p. 59). As such, Ginsburg's approach has challenged givenness of male masculinity, very core of patriarchal power.Cary Franklin's essay on VMI case suggests that Ginsburg's rejection of gender neutrality and attention specific contexts in which gender discrimination plays out could serve as a model for equal protection more generally in affirmative action, voting rights, and school desegregation cases where race neutral analyses have prevailed in recent years. …

A Principled Approach to Procedural Reform: Zooming in on the Claim

At the core of every liberal democracy is a commitment to a wide range of individual rights. The recognition and evolution of those rights is a lively topic of public debate. Procedural law, on the other hand, is well below the public radar. Yet, federal practice and procedure are silently eroding our system of democracy through a mechanical and fragmented approach to procedure that is increasingly detached from the litigation mission in a manner that elevates form over substance, prevents the creation and enforcement of rights, and ultimately denies access to justice. This article is part of a larger project intended to change the way we think about and approach procedural law and procedural reform at the federal level. My goal is to unearth the unifying principles of federal procedure and practice, and use them to design a system that promotes the coherent, fair, and efficient creation and enforcement of substantive rights. To that end, I elaborate a theory of federal procedure and practice that assigns to the claim, the essential litigation unit, a central role in litigation analysis and reform. Testing the federal rules and procedural doctrines against the claim helps us see when procedure, operating at a very high level of abstraction and formalism, suffocates substantive law and justice, thus failing to accomplish its essential mission of means in the creation and enforcement of substantive rights. Once identified the flaws in our procedural system, the project formulates reform proposals that are intended to return the rules and doctrines to the right balance between formalism and pragmatism, one essential for the rules and doctrines to accomplish their mission. Zooming in on the claim is crucial in this respect.

Court halts new requirement for fertilizer storage

A federal court has delayed a federal requirement that facilities storing 4,536 kg or more of anhydrous ammonia meet the same safety standards as chemical manufacturers. OSHA imposed the requirements in the wake of a 2013 explosion of another fertilizer, ammonium nitrate, at a facility in West, Texas, that killed 15 people and leveled part of the town. The U.S. Court of Appeals for the District of Columbia Circuit determined that OSHA illegally imposed the extensive new safety requirements on retail dealers of anhydrous ammonia fertilizer without giving them a chance to comment formally. In its Sept. 23 decision, the court found that OSHA violated federal procedure when the agency used a guidance memo to narrow exemptions to its process safety management standard for hazardous chemicals. OSHA’s move would require smaller vendors to buy new storage tanks. For now, retailers, who filed the suit, will remain exempt from process safety

The Process of Marriage Equality

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions.

Is Now the Time for Simplified Rules of Civil Procedure

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to arbitrations, mediations, and other methods of alternative dispute resolution as anything but the bar's vote against the process provided by the Federal Rules of Civil Procedure? We rightly fear the answers to these questions, which we see in our own observations and in the available empirical evidence. And because we do, I submit, the time has come for a systematic review of civil process with a genuine openness to undertaking a serious and determined effort to simplify the Federal Rules of Civil Procedure. When I was Chairman of the Civil Rules Advisory Committee, Professor Edward H. Cooper, the Committee's Reporter, and I initiated just such an undertaking. My tenure as Chairman, however, which had already been extended, ended in 2000, before we made much progress in this endeavor. Professor Cooper nonetheless preserved the beginnings of our effort in his essay, Simplified Rules of Federal Procedure?.4 It is now time, I suggest, to revisit these beginnings and draw upon Professor Cooper's experience and leadership to resurrect this important and necessary effort.

Probability, Confidence, and the 'Reasonable Jury' Standard

The modern summary judgment standard requires that a judge consider how a reasonable would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the reasonable standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's blue bus hypothetical. In addition, this article demonstrates how the reasonable standard makes it difficult to identify the confidence concept as a component of federal procedure.

The Restrictive Ethos in Civil Procedure

Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates the ability of claimants to prosecute their claims and receive a decision on the merits in federal court. In this brief Essay, after discussing some of the familiar components of the liberal ethos of civil procedure, I hope to set forth some of the aspects of federal civil procedure that reflect the restrictive ethos, following up with some thoughts on whether a dialectical analysis can help us understand the nature of the relationship between procedure's liberal and restrictive components.

Who Decides?: A Critical Look at Procedural Discretion

Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong, and this Article explains why. After surveying how discretion operates in federal procedure and explaining how it has come to dominate, the Article turns to developing the argument against case-specific discretion. It begins by identifying the primary purpose of procedure and explains why achieving quality settlements is as important as achieving quality judgments. The settlement quality and judgment quality objectives conflict, however, and designing procedures to balance them optimally is a difficult matter. The Article then identifies three serious problems that frustrate any effort by trial judges to strike an optimal balance in individual cases: bounded rationality limits, information access obstacles, and strategic interaction effects. These problems are particularly acute in procedure because of the highly strategic nature of litigation and the tightly integrated structure of a procedural system. The Article explains why the three problems are not as serious for committee-based rulemakers as for trial judges and why the cost-benefit balance therefore supports adopting stricter rules. The Article concludes by discussing four ways to limit discretion and illustrating each with concrete reform proposals in the areas of discovery, settlement promotion, and class action law.

Administrative Law in the U.S. Supreme Court, 2004-2006: Trends, Cases, and Unexploded Bombshells

This article accompanies a presentation at the Texas Bar Association's 18th Annual Advanced Administrative Law Course, held September 2006. It provides readers with a comprehensive review of administrative-law-related decisions from the U.S. Supreme Court in its 2004-2005 and 2005-2006 terms. First, the article examines three trends in the U.S. Supreme Court's federal administrative law jurisprudence going into the 2004-2005 term: (1) limited interpretation of the federal Administrative Procedure Act (APA); (2) limiting Chevron deference; and (3) federalism and the role of state authority in federal administrative law. Second, the article provides a comprehensive review of Supreme Court decisions from October 2004 through June 2006 for administrative law practitioners. Finally, the article identifies two unexploded bombshells in administrative law jurisprudence and four cases to watch during the 2006-2007 Supreme Court term.

Simplified Rules of Federal Procedure?

Writing in 1924, seventy-eight volumes ago, Professor Edson R. Sunderland began The Machinery of Procedural Reform with this sentence: has been said and written about the imperfections of legal procedure.' Much of his article describes circumstances in which procedural reform occurred only in response to conditions that had become intolerable. A decade later, Congress enacted the Rules Enabling Act that still provides the framework for reforming federal procedure.2 The Enabling Act establishes a deliberate and open process for amending the rules initially adopted under its authority. It may take longer today to consider and adopt a single rule amendment than the original rulesmakers took to create the original body of Civil Rules.3 The process surely provides the close and pains-taking study

Discovery

The purpose of this article is to explore the theoretical basis for, and nature of, the discovery process in transnational litigation. In particular, the article examines the case-law interpreting 28 U.S.C. § 1782, a provision of American federal procedure authorizing the discovery of documents and the deposition of witnesses in aid of foreign litigation where the relevant documents or witnesses are located in the United States. The central doctrinal question is whether the evidence that is the subject of the US-based discovery must be 'discoverable' in the jurisdiction of the litigation itself, or must only be discoverable under the typically more lenient US procedural rules. This debate over doctrine, in turn, raises a debate on the level of theory: Are civil procedure rules rooted in the jurisdiction in which they arise, or do they potentially span jurisdictions in a way which detaches them from any specific political/legal system? Moreover, why does the answer to this question vary from court to court? The article examines the parallels between an existentialist theory of personality and the operation of procedural rules, concluding that there is 'no exit' from the debate over the relationship between competing jurisdictions' rules and thus no pre-determined outcome for the given doctrinal controversy.