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Tuesday, July 26, 2011

Roundtable: Evolution or Revolution? American Civil Procedure in the 21st Century

I am off to SEALS tomorrow morning, unfortunately sans famiy (we need to plan our summers better). In addition to Thursday evening's Prawfs Happy Hour, on Friday afternoon I will be participating in a Civil Procedure Roundtable, Evolution or Revolution? American Civil Procedure in the 21st Century. It will be a three-hour discussion, moderated by Mike Allen (Stetson) and Tom Metzloff (Duke), with twelve people giving short prepared remarks and an otherwise broad, open discussion among a large room full of particpants. Prepared remarks will be presented by Dustine Buehler (Arkansas), Donald Childress (Pepperdine), Scott Dodson (William & Mary), Richard Freer (Emory), Lonny Hoffman (Houston), Sarah Ludington (Campbell), Lumen Mulligan (Kansas), Rocky Rhodes (South Texas), Cassandra Burke Robinson (Case Western), Glen Staszewski (Michigan State), Evelyn Wilson (Southern), and me. Everyone else is free to comment.

My remarks are on an essay I am putting together, The Roberts Court and the Civil Procedure Revival (comments welcome). I argue that the Roberts Court seems to be making civil procedure its doctrinal project, deciding more than 20 cases in areas that are part of the core Civ Pro course (even more if you include Fed Courts topics such as standing), making some pretty significant doctrinal statements and changes in doing so. And I expect this interest to continue, given the relative youth of some on the Court and the inclusion on the Court of four justices (three of whom are new to the Court) whose backgrounds seem to make them solicitous of, and interested in, civil litigation.

Posted by Howard Wasserman on July 26, 2011 at 11:48 AM in Civil Procedure, Howard Wasserman | Permalink


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In your piece or on your panel (I have not read the former and I cannot attend the latter)you might pay attention to two things.

First, always look to see where Ruth Bader Ginsburg is. She was a proceduralist as an academic. Even after becoming a judge, she continued to write about civ pro and fed courts. She seems to me to have the most thought-out philosophy of procedure qua procedure among the justices.

Second, consider if the push and pull of the Burger Court is coming back. In those days, Bill Brennan and Bill Rehnquist often squared off in jurisdiction cases. Brennan was always pulling open the courthouse door. Rehnquist was always pushing it closed. See if there is a similar role playing on the Roberts court developing among the current players. Look for patterns.

Posted by: Thomas E. Baker | Jul 27, 2011 11:29:22 AM

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