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The Roberts Court and the Civil Procedure Revival
Howard M. Wasserman
Introduction
Different iterations of the Supreme Court of the United States, identified with the
Chief Justice, have different doctrinal projects and agendas, a part of the law in which
it takes a particular interest and in which it moves and develops the law. The New
Deal Court of Charles Evan Hughes is associated with the extension of government
power and the constitutionality of the New Deal;1 the Warren Court is associated with
the expansion of individual liberties, especially racial equality, the freedom of speech,
and criminal procedure;2 the Rehnquist Court is associated with federalism.3 Even if
the Court never fully finishes its doctrinal project, it targets a piece of the law and it
develops that piece in a particular direction.
What a particular Court cares about may change over time. And it may not always
be clear, especially in the early years of a new Court with a new Chief. John Roberts
was sworn in as Chief Justice in September 2005 and three other members have joined
the Court since then.4
As we approach the seventh term of the Roberts Court, we see strong signs of a
Court engaged in an unexpected area—the Federal Rules of Civil Procedure and civil
procedure more generally. Over the past six terms, the Court has heard and decided
numerous cases in core civil procedure areas, including pleading,5 summary
judgment,6 relation back of amendments,7 personal jurisdiction,8 subject matter
jurisdiction,9 removal,10 standing,11 class actions,12 and Erie/Hanna.13 In fact, the
1
West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
Miranda v. Arizona, 384 U.S. 436 (1966); New York Times v. Sullivan, 376 U.S. 254 (1964);
Mapp v. Ohio, 367 U.S. 643 (1961); Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954).
3 City of Boerne v. Flores, 521 U.S. 507 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996); United States v. Lopez, 514 U.S. 549 (1995). Andy Siegel argues that an even broader principle
for the Rehnquist Court was hostility to litigation and the institution of judicially focused dispute
resolution. Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing
Theme in the Rehnquist Court’s Jurisprudence, 84 Tex. L. Rev. 1097, 1114-15 (2006).
4 Biographies of Current Justices of the Supreme Court, SUPREME COURT OF THE UNITED STATES
http://www.supremecourt.gov/about/biographies.aspx.
5 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
6 Scott v. Harris, 550 U.S. 372 (2007); Howard M. Wasserman, Video Evidence and Summary
Judgment: The Procedure of Scott v. Harris, Video evidence and summary judgment: The procedure of
Scott v. Harris, 91 JUDICATURE 108 (2008).
7 Krupski v. Costa Crocierie S. p. A., 130 S. Ct. 2485 (2010).
8 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011); J. McIntyre
Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011).
9 Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011); Morrison v. Nat’l Australia
Bank Ltd., 130 S. Ct. 2869 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Hertz Corp.
v. Friend, 130 S. Ct. 1181 (2010); Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677 (2006);
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
2
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Court now includes four members whose backgrounds suggest solicitude for and
perhaps keen interest in civil procedure: Chief Justice Roberts and Justice Ginsburg
both were civil litigators, Ginsburg and Justice Kagan both taught Civ Pro, and Justice
Sotomayor was a district court judge for six years, meaning she alone among the
justices has worked with the Federal Rules on the ground.
Supreme Court development of the law of civil procedure is welcome. While the
lower courts do an admirable job in creating, developing, and applying procedural
law, the high court is a necessary source of federal uniformity and, we hope, clarity.
Of course, having civil procedure as a doctrinal project will not draw the attention or
ire of the public and the popular media; do not expect public calls to impeach John
Roberts over the scope of Rule 8. Indeed, it may not draw the attention of many
beyond the civil procedure professoriate, and even then only with a modicum of
sarcasm. In June, Justice Kagan read her decision in Smith v. Bayer Corp. (which
dealt with the preclusive effect of a class certification decision and the Anti-Injunction
Act) from the bench, introducing it as a “complicated procedural ruling;” one legal
blogger translated this as "if you understand anything I say, you have a law degree
AND you had your cup of coffee."14
But if civil procedure and the Federal Rules is to be the Roberts Court’s
jurisprudential project, it is worth examining the Court’s early activity in this area,
both to see and understand the trend that has been developing and to predict where it
might go in the coming terms. This essay first examines some themes or ideas that
show up in the recent decisions on the subject. It then considers the Court’s actions
relative to the other actors and procedures in civil rulemaking, namely Congress,
lower federal courts, and the Advisory Committees under the Rules Enabling Act.
I. Organizing Themes in the Civil Procedure Revival
Some themes have developed in the Court’s early cases that provide some
perspective on the new developments in civil procedure. This do not necessarily link
all of the cases into a coherent whole, but they do provide some ideas around which to
organize the Court’s activity.
First, it is fair to call the Court’s sudden interest in procedure a “revival,” coming
as it does after a significant lull in procedure cases on the Court’s docket during the
10
Carlsbad Technology, Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009); Powerex Corp. v. Reliant
Energy Servs., Inc., 551 U.S. 224 (2007).
11 Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); Hein v. Freedom From
Religion Foundation, 551 U.S. 587 (2007); Massachusetts v. E.P.A., 549 U.S. 497 (2007). I recognize
that many people might consider standing more of Federal Courts topic than a Civil Procedure topic.
12 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Smith v. Bayer Corp., 131 S. Ct. 2368
(2011); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).
13 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010); Kevin M.
Clermont, The Repressible Myth of Shady Grove, 86 Notre Dame L. Rev. ___ (2011).
14 http://prawfsblawg.blogs.com/prawfsblawg/2011/06/federal-procedure-day-at-the-supremecourt.html
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Rehnquist Court. This makes the recent uptick in procedural decisions so striking.
When the Court last term decided companion personal jurisdiction cases, it marked
the first decision from the Court on personal jurisdiction in more than twenty years.15
For perspective, Justice Souter joined the Court in fall 1990 (five months after
Burnham) and served for nineteen years16 and never decided a personal jurisdiction
case. There were similar gaps in other areas—the Court decided its first case on Rule
15(c) relation back in almost twenty years (and the first since the rule was amended in
1991)17 and its first direct case on the Erie/Hanna doctrine in almost fifteen years.18
The Court even has resolved long-standing statutory issues. In 1958, Congress
amended the diversity jurisdiction statute to define a corporation’s citizenship, in part,
as its principal place of business; in 2009, the Court for the first time addressed and
resolved the meaning of that term.19
Second, some of the Court’s efforts have aimed to clean up doctrinal confusion or
problems created by its predecessors. One such project has been the elimination of
“drive-by jurisdictional rulings.” These are decisions in which a legal rule has been
labeled as jurisdictional only through “unrefined” analysis without rigorous
consideration of the label’s meaning or consequences.20 The Court has explicitly
retreated from its own admittedly “profligate” and “less than meticulous” use of the
word and made a deliberate, concerted move towards greater “discipline” defining
what is jurisdictional and to curtail such drive-by rulings.21 Some justices have even
argued that these earlier rulings are not entitled to full precedential effect.
And the Court obviously wants lower courts to follow that lead in avoiding this
long-standing confusion. In some cases, it has granted cert specifically to undo a
lower-court’s erroneous treatment of an issue as jurisdictional. But it also has reached
out to announce the proper characterization of a rule, even where its jurisdictional or
non-jurisdictional nature was not at the heart of the case or even contested by the
parties, simply because the Court believed the lower court had mischaracterized the
rule.22 The Court is willing to correct what it views as doctrinal missteps in the lower
courts, even tangentially.
Third, the Court has made significant theoretical and doctrinal pronouncements,
often producing significant theoretical and doctrinal shifts. The most-discussed
example is pleading, which has generated a scholarly cottage industry. The Rehnquist
15
Burnham v. Superior Court, 495 U.S. 604 (1990).
Biographies of Current Justices of the Supreme Court, SUPREME COURT OF THE UNITED STATES
http://www.supremecourt.gov/about/biographies.aspx.
17 Schiavone v. Fortune, 477 U.S. 21 (1986); 1991 Amendment Amendment to Fed. R. Civ. P. 15(c).
18 Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996).
19 Hertz Corp., 130 S. Ct. at 1189-90.
20 Howard M. Wasserman, The Demise of “Drive-By Jurisdictional Rulings, 105 Nw. U. L. Rev.
___ (2011) (m.1).
21 Henderson, 131 S. Ct. at 1202; Reed Elsevier, 130 S. Ct. at 1244 Wasserman, Drive-By, supra
note ___, at ___ (m.1).
22 Morrison, 130 S. Ct. at 2876-77.
16
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Court’s two most recent statements on Federal Rule of Civil Procedure 8(a)(2) and
pleading—in 2002 and 1993—had reaffirmed the Court’s historic decision in Conley
v. Gibson, rejected heightened or fact pleading outside of fraud, and accepted that a
complaint is sufficient unless it “appears beyond doubt that the pleader can assert no
set of facts that would entitle him to relief.”23 True, the lower courts had frequently
required plaintiffs to plead more and more-specific facts—so much so that Chris
Fairman labeled notice pleading a “myth”24—but the Supreme Court always pushed
back against this pendulum swing.
Then came Twombly in 2007 and Iqbal in 2009. Together, the two cases gave the
“no set of facts” standard its “retirement,”25 required that a pleading contain sufficient
facts, pled in a non-conclusory manner, to enable a judge, applying her own common
sense and experience, to conclude that it is plausible that a violation of the plaintiff’s
rights had occurred if those facts are true.26 Part of what made Twombly (and
subsequently Iqbal) so surprising is that it came from nowhere, with an entirely new
concept—nonclusoriness and plausibility—that had not appeared in any pleading
cases from any court.27 It also represented a reversal from the prior doctrinal dynamics
between the Supreme Court and the lower courts; rather than rebuffing lower courts
when they pushed pleading standards upwards, the Court finally adopted the higher
standards that some lower-court judges had imposed (and reversed two morepermissive decisions by the lower courts in the process).28
McIntyre hinted that we could see a similar theoretical shift in personal
jurisdiction. In finding no jurisdiction over the defendant, Justice Kennedy’s plurality
opinion repeatedly spoke about personal jurisdiction in structural terms of judicial
power, sovereignty and sovereign authority, submission by the defendant (through his
acts) to the power of the sovereign, and the invalidity of a “judgment rendered in the
absence of authority.”29 But this marks at least a rhetorical (if not substantive)
departure from International Shoe, which has been grounded in due process concerns
for foreseeability, reasonableness, and fundamental fairness, not sovereignty and the
“reach” of a sovereign’s power.30 The new authority rhetoric makes personal
jurisdiction sound more like subject matter jurisdiction, with its focus on the court’s
root structural adjudicative authority, generally not waivable, over a case. It remains
to be seen whether this is rhetoric or, if it is more than rhetoric, what effect it has. The
23 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002; Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993).
24 Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 988 (2003);
Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551, 551-52 (2002).
25 Twombly, 550 U.S. at 562.
26 Iqbal, 129 S. Ct. at 1949-50; Twombly, 550 U.S. at 556-57.
27 Clermont, Myths, supra note ___, at ___ (116-17, 120-21); Kevin M. Clermont & Stehen C.
Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. 821, 832 (2010).
28 Hillel Y. Levin, Iqbal, Twombly, and the Lessons of the Celotex Trilogy, 14 LEWIS & CLARK L.
REV. 143, 151-52 (2010).
29 McIntyre, 131 S. Ct. at 2786-87, 2789.
30 Id. at 2798 (Ginsburg, J., dissenting).
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McIntyre plurality was not alone in hinting at doctrinal change. Justice Breyer wrote a
concurring opinion expressing uncertainty as to how the current analytical scheme
works (or does not work) in light of modern technology, communications, travel, and
commerce—suggesting that he, too, would be open to reconsidering and altering the
personal jurisdiction framework if presented with a more modern case.31
We also saw hints of a different doctrinal shift in Good Year, where a unanimous
Court appeared to narrow, if not outright reject, general “doing business” jurisdiction.
That doctrine provided that a business entity could have continuous and systematic
business contacts with a forum that, if substantial enough, could subject it to
jurisdiction in that forum for all purposes. And several lower courts, including the
lower court in Goodyear, had carried that doctrine pretty far.32 But the Supreme Court
rejected this “sprawling” view of general jurisdiction, drawing a sharp line between
general and specific personal jurisdiction and seeming to limit the former to the
“paradigms” of domicile, place of incorporation, principal place of business, and,
perhaps, states in which the defendant has offices or has registered to do business.33
Fourth, and relatedly, the Court continues to paint in minimalist strokes, rendering
narrow decisions that handle only what is necessary to resolve the case. This is not
entirely surprising. Both Roberts and Samuel Alito (who joined the Court in OT
200534) advocated such minimalism in their confirmation hearings and had carved out
uniquely narrow vies in other cases.35 Judicial minimalism is often criticized for
failing to provide sufficient guidance to lower courts and other actors, leaving them to
read between the lines, at greater cost to those other actors.36 That failing has played
out in the Court’s recent civil procedure cases.
For example, Twombly initially resolved as many questions as it left: Did it apply
to all cases or only to antitrust cases?37 Did the court impose heightened or fact
pleading, something it explicitly disclaimed?38 Was Conley truly overruled or was
31
Id. at 2793-94 (Breyer, J., concurring in the judgment).
See, e.g., Brown v. Meter, 681 S.E. 2d 382, 388-89 (N.C. App. 2009), rev’d 131 S. Ct. 2846
(2011); Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1078 (9th Cir. 2003) (finding general
jurisdiction over out-of-state defendant based on extensive marketing and sales in forum, extensive
contacts with vendors in forum, and operation of “sophisticated virtual store” in forum), vacated on
granting of reh’g en banc, 366 F.3d 789 (9th Cir. 2003), dismissed as moot on reh’g en banc, 398 F.3d
1125 (9th Cir. 2005).
33 Goodyear, 131 S. Ct. at 2853-54, 2856-57.
34 Biographies of Current Justices of the Supreme Court, SUPREME COURT OF THE UNITED STATES
http://www.supremecourt.gov/about/biographies.aspx.
35 Hearings; see Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 615 (2007) (plurality
opinion of Alito, J., joined by Roberts, C.J. and Kennedy, J.) (declining to overturn doctrine of taxpayer
standing in Establishment Clause cases); Morse v. Frederick, 551 U.S. 393, 422-23 (2007) (Alito, J.,
concurring) (attempting to narrow majority opinion and maintain larger area of protected student speech).
36 Neil S. Siegel, A Theory in Search of Itself: Judicial Minimalism at the Supreme Court Bar, 103
MICH. L. REV. 1951, 2006 (2005); Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny as
Judicial Minimalism, 66 GEO. WASH. L. REV. 298, 326 (1998).
37 A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431, 458=59 (2008).
38 Twombly, 550 U.S. at 569 n.14.
32
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Twombly simply an application of Conley, less the overstated (and arguably
misunderstood39) no set of facts language? Iqbal came along two years later and
resolved some of those questions—plausibility was the new standard for Rule 8(a)(2)
and it definitely applied beyond antitrust cases.40 But Iqbal also more explicitly
brought to the fore the policy justifications for the new pleading standard—protecting
certain high-ranking government defendants in certain cases from the overweaning
costs and burdens of discovery.41 That leaves lower courts to figure out whether Iqbal
and Twombly’s stricter plausibility requirement should apply in cases that do not
implicate those concerns—non-discovery-intensive cases or cases not involving
qualified immunity and sensitive, high-ranking government officials.42 Lower courts
also have had to determine whether plausibility applies to other pleadings, such as
affirmative defenses, or other issues in pleadings, such as jurisdictional allegations.43
Minimalism’s gaps are exacerbated by the Court’s failure to achieve a majority in
several cases. Consider McIntyre again. In Asahi, the Court had left open whether a
defendant established sufficient minimum contacts with a forum simply by placing a
product into the stream of commerce knowing or expecting that it could end up in the
forum (as four justices argued) or whether the defendant must do something in
addition to intentionally serve or reach the forum (as four justices argued).44 That
dispute between “stream” and “stream -plus” rattled around in the lower courts for
more than twenty years.45 The New Jersey Supreme Court had discussed and resolved
this long-standing debate, adopting “stream of commerce” as the approach more
consistent with the due process theory underlying personal jurisdiction.46 The
expectation when the Court took the case was that it would finally resolve the debate,
but it did not. Four justices again adopted stream-plus, explicitly and sharply rejected
putting a product into the stream of commerce as sufficient contacts, calling Justice
Brennan’s stream view “inconsistent with the premises of lawful judicial power.”47
But Justices Breyer and Alito concurred in the judgment and declined to resolve the
debate, believing it unnecessary to resolve a case in which the absence of contacts was
clear.48 After waiting twenty years to hear a personal jurisdiction case and taking a
39
Emily Sherwin, The Story of Conley, in CIVIL PROCEDURE STORIES ___ (Kevin Clermon, ed.) (2d
ed. ____).
40 Iqbal, 129 S. Ct. at 1953.
41 Iqbal, 129 S. Ct. at 1953-54.
42 Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009) (Posner, J.); Wasserman, Procedural
Mismatches, supra note ___, at 175.
43 Clermont, supra note ___, at ___ (m. 123-25); Joseph A. Seiner, Twombly, Iqbal, and the
Affirmative Defense (SSRN).
44 Compare Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 111-12 (1987)
(O’Connor, J., joined by Rehnqsuit, C.J., Powell and Scalia, JJ.) with id. at 116-18 (Brennan, J., joined by
White, Marshall, and Blackmun, JJ., concurring in part and concurring in the judgment).
45 Nicastro v. McIntyre Machinery America, Ltd., 987 A.2d 575, 587-89 & nn.10-12 (N.J. 2010)
rev’d 131 S. Ct. 2780 (2011).
46 Id. at 589.
47 McIntyre, 131 S. Ct. at 2789.
48 Id. at 2792-93 (Breyer, J., joined by Alito, J., concurring in the judgment).
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case that expressly presented the stream/stream-plus debate, the Court left the issue
unresolved. Of course, courts may take cues from the emphatic language of the
plurality opinion and its recasting of the doctrine in sovereign terms and move
towards stream-plus. But that just brings the lower courts back to tea leaves.
Of course, in civil procedure, as in other areas, the Court is minimalist except
when it isn’t. Wal-Mart involved a massive sex-discrimination class action against a
major nationwide corporation, thus it was the rare civil procedure case that drew a
significant amount of scholarly and mainstream media coverage at the Court, largely
focused on the cases potential effect on substantive employment-discrimination law
rather than on its procedure.49 The district court had certified a class, under Fed. R.
Civ. P. 23(b)(2), of more than 1.5 million Wal-Mart employees nationwide, who
alleged that discretionary decisions made by supervisors at different stores in different
places violated Title VII; the class sought injunctive and declaratory relief, backpay,
and punitive damages.50 The Court was unanimous that the class action could not be
brought under Rule 23(b)(2), which by its terms permits only class actions for
injunctive or delaratory relief, not monetary relief (even if characterized as equitable,
as backpay is).51 Minimalism presumably would have dictated that the Court stop
there and send the case back to the lower courts to decide whether the class could be
maintained under a different provision (Rule 23(b)(3), assuming the differences
among class members did not predominate over the common questions).
But a five-justice majority went further, holding that the class action was
improper because, given the size and geographic spread of the class, differences
among the class members, and differences among the policies, actors, and decisions
being challenged, the class failed the threshold requirement of having “questions of
law or fact common to the class.”52 This triggered a spirited disagreement between
Justices Scalia and Ginsburg over whether predominance probably should be part of
the Rule 23(a)(2) analysis or whether that threshold was satisfied so long as there are
some commonalities among class members, with predominance an issue at a later
stage.53
Fifth, the new procedure cases have the potential, albeit too easy, to be framed in
simplistic political terms as the Court’s majority protecting big business and
49
See Adam Liptak, Justice Take up Crucial Issue in Wal-Mart Suit, THE NEW YORK TIMES, Mar.
29, 2011; Adam Liptak, Supreme Court to Weigh Sociology Issue in Wal-Mart Discrimination Case, THE
NEW YORK TIMES, Mar. 27, 2011; Michael Waterstone, Wal-Mart and the Future of Employment
Discrimination Class Action Law, Summary Judgments, June 22, 2011,
http://llsblog.lls.edu/faculty/2011/06/wal-mart-and-the-future-of-employment-discrimination-classaction-law.html; Jason Bent, Oral Argument Transcript in Wal-Mart v. Dukes, Workplace Prof Blog,
Mar. 29, 2011, http://lawprofessors.typepad.com/laborprof_blog/2011/03/oral-argument-transcript-inwal-mart-v-dukes.html.
50 Wal-Mart, 131 S. Ct. at 2547.
51 Id. at 2557-58; id. at 2561 (Ginsburg, J., concurring in part and dissenting in part).
52 Wal-Mart, 131 S. Ct. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th
Cir. 2010) (en banc) (Kozinski, J., dissenting)).
53 Compare id. at 2556-57 with id. at ___ (Ginsburg, J., concurring in part and dissenting in part).
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government defendants. Certainly some of the more significant cases (most obviously
Wal-Mart, Iqbal, and Tombly) went that way. The analysis in some cases has been
highly favorable to, and applauded by, repeat-player defendants in modern litigation
urging relief from the burdens of litigation and liability.54 And much of the criticism
of the new pleading regime has focused on its likely disparate impact against plaintiffs
in civil rights and other cases in which the defendant’s state of mind is unknowable
without the benefit of discovery, discovery now unavailable where the plaintiff is
unable to sufficiently plead state of mind.55 One might see this as “ideological drift” in
civil procedure on the Court, that the conservative justices have adopted the idea,
expressed by former Democratic Congressman John Dingell, “I'll let you write the
substance...you let me write the procedure, and I'll screw you every time.”56
But a pure attitudinal model is too simplistic as to this run of cases, which have
not been categorically political. Most of the cases did not divide the Court. Most have
been unanimous or nearly unanimous,57 while in others the Court has broadly agreed
on the outcome if not the reasoning.58 Justice Souter wrote Twombly and Justice
Breyer joined the majority (although both dissented in Iqbal).59 Other cases have
broken against expected lines, or at least against simple or popular perceptions of
those lines. For example, in Shady Grove, the Court held that Rule 23 governed
whether a class action could be brought in federal court, not a state rule that would
have prohibited such a class action. Justice Scalia, Chief Justice Roberts and Justice
Thomas joined with Justice Sotomayor and (in part) Justice Stevens in a conclusion
that benefits class-action plaintiffs, while Justices Ginsburg and Breyer joined with
Justices Kennedy and Alito in an opinion that would have forbidden a class action in
federal court.
Adam Steinman suggests that Shady Grove was a unique case that placed the
litigants in reverse positions for federalism purposes, with plaintiffs arguing for a
more-plaintiff-friendly federal rule. But in the long run, plaintiffs are more likely to
benefit from favorable state laws and thus more likely to want state law to apply in
federal court. Looking forward, therefore, the line-up makes ideological sense.60 On
the other hand, perhaps odd line-ups simply are part of Erie/Hanna, which makes
54 Mark Herrmann, James M. Beck, & Stephen B. Burbank, Debate: Plausible Denial: Should
Congress Overrule Twombly and Iqbal?, 158 U. Pa. L. Rev. PENNumbra 141, 146-47 (2009) (Opening
Statement of Mark Herrmann & James M. Beck),
http://www.pennumbra.com/debates/debate.php?did=24
55 A. Benjamin Spencer, Civil Rights, supra note ___, at 160; Wasserman, Procedural Mismatches,
supra note ___, at 169.
56 Regulatory Reform Act: Hearing on H.R. 2327. Before the Subcomm. on Admin. Law and
Governmental Regulations of the House Comm. on the Judiciary, 98th Cong. 312 (1983) (statement of
Rep. John Dingell).
57 Good Year, 131 S. Ct. at 2850; Smith, 131 S. Ct. at 2372; Krupski, 130 S. Ct. at 2489; Scott, 550
U.S. at 373.
58 Wal-Mart, 131 S. Ct. at 2546.
59 Clermont & Yeazell, supra note ___, at 850.
60 Steinman, supra note ___, at ___ (m.45).
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sense given its federalism gronding.61 We saw a similarly unexpected ideological
divide fifteen years earlier in Gasperini: Justice Ginsburg wrote a majority opinion
joined by Justices O’Connor, Kennedy, Souter, and Breyer requiring that a state tortreform provision (which gave trial and appellate greater power to review and reduce
jury awards) designed to reduce the size of damage awards must apply in federal
court, while Justice Scalia was joined by Chief Justice Rehnquist and Justice Thomas
in insisting that the more plaintiff-friendly federal rule (which constrained judicial
review of awards) should apply (a conclusion with which Justice Stevens agreed).62
The purely political take on these cases conflicts with an explanation focusing on
the Court’s membership. Of the four justices with backgrounds steeped in civil
procedure, some or all have been in the dissent in the closely divided cases,
suggesting they are not all driving the direction of the doctrine. And the “liberal”
proceduralist justices have disagreed on some cases, going in several different
directions.
A political take on the Roberts Court also reveals some continuity between the
Roberts Court’s focus on civil procedure and its predecessor Court’s focus on
litigation more broadly. Andrew Siegel argued that a vast swath of the Rehnquist’s
Court’s jurisprudence was motivated by “hostility” to “litigation,” which he defined as
an “attitudinal orientation” against the “social institution of litigation,” the “complex
of cultural attitudes about problem solving, institutional arrangements, doctrinal rules,
and professional roles that nourish our particular judicially focused dispute-resolution
system.”63 That hostility dictated and explained doctrines as disparate as state
sovereign immunity, private rights of action, attorneys’ fees, and Bush v. Gore. Siegel
also finds a political valence at least correlated to the outcomes of these cases, but it is
of limited force because the cases were not bluntly or categorically political.64
Particularly missing, as to all the justices in those cases, Siegel argues, is any
“handwringing over the denial of remedies to plaintiffs,” or any “sense of reluctance
that symmetry or precedent requires an otherwise unpalatable result.”65
Perhaps we are seeing similar hostility to litigation in the new Court’s procedure
decisions, some of which have erected barriers or hurdles to the pursuit of judicial
remedies for wrongs (obviously the pleading cases and Wal-Mart are prime
examples), with those decisions having a similar political valence. That ideological
continuity is unsurprising, given that three members of the Rehnquist Court’s
conservative wing remain and the addition of Roberts and Alito did not alter the
Court’s ideological balance. Moreover, at least some of the more recent cases have
61
Id. at 45-46.
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996).
63 Siegel, supra note ___, at 1114.
64 Id. at 1126.
65 Id.
62
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included handwringing over the burdens being imposed on plaintiffs and the possible
denial of remedies.66
II. The Roberts Court and Rulemaking Processes
The Supreme Court is not the sole procedural rulemaker and Supreme Court
adjudication is not the only (and arguably not the best67) way to make and elaborate
on procedural rules. The early years of the Roberts Court have been marked by a great
deal of procedural rulemaking outside of Supreme Court adjudication—by Congress,
by the Court and other actors in the Rules Enabling Act process, and by lower courts,
particularly in response to the Court’s recent activity. The period also has been
marked by some strained or uncertain interactions among the various actors.
A. The Court and the REA Process
The Roberts Court has shown some ambivalence towards the Rules Enabling Act.
Formally, the Court is charged by statute with promulgating rules of procedure, with
Congress reserving for itself only the power to disapprove the rules the Court has
created.68 Practically, however, the process is controlled by the Standing Committee
of the Judicial Conference and the Civil Rules Avdisory Committee, which draft and
approve the rules through a multi-stage, lengthy notice-and-comment process that now
takes, on average, 2-3 years.69 The Court does not see and approve potential rules until
they have been through five levels of consideration and review. And the justices often
see their role as mere conduit, certifying not the merits or wisdom of a particular rule
or taking ownership of the underlying policies, but only signaling that the committees
properly followed the rulemaking processes.70
The view that the committees, rather than the Court itself, drive the rulemaking
process arguably has affected recent procedural adjudication. The Court has perhaps
realized that it wields greater, and more direct, power in its adjudicative rather than its
rulemaking role and thus has shifted its attention there. Again, pleading is the prime
example. Prior to 2007, the Court had twice declined the invitation to reject Conley or
to demand anything more than a “short plain statement” in civil rights cases, both
times directing normative arguments about the appropriate standard to the REA
process.71 But the Roberts Court showed no such qualms or deference in Twombly or
Iqbal.72 In fact, Twombly arguably short-circuited a preliminary study of notice
66
See, e.g., McIntyre, 131 S. Ct. at 2794-95.
Clermont & Yeazell, supra note ___, at 850; Mulligan & Staszewski, supra note ___, at ___
(m.5); Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil
Procedure, 150 U. Pa. L. Rev. 1099, 1134-35 (2002)
68 28 U.S.C. §§ 2072, 2074
69 Mulligan & Staszewski, supra note __, at ___ (m. 14, 16-17); Struve, supra note ___, at 1103-04;
see also 195 F.R.D. 95, 386 (2000).
70 Mulligan & Staszewski, supra note ___, at 61-62.
71 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002; Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993).
72 Mulligan & Staszewski, supra note ___, at ___ (m.9).
67
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pleading that the Rules Advisory Committee had undertaken, a study that was tabled
following Iqbal and Twombly. The Court’s unexpected willingness to alter the
pleading standard through adjudication rather than through the rulemaking process has
been a recurring criticism of the new pleading regime. Critics argue that the Court
made a policy-based decision without the benefit of policy-based evidence or the type
of study that rulemaking makes possible.73 Interestingly, some legislative proposals to
undo Twombly and Iqbal have not tried to announce a new standard, but only to return
to the status quo prior to Twombly, then punt the issue back to the Advisory and
Standing committees for more in-depth study and to allow the REA process to run its
course.74
The Court, or at least some justices, are similarly uncertain as to how the
committee process, and the influence of the committees, should affect adjudication of
rules questions. In Krupski, Justice Scalia refused to join the portion of the majority
opinion that examined the Advisory Committee Notes to Rule 15 in trying to
determine the scope of relation back of amended pleadings.75 Scalia argued that the
Notes are identical to ordinary legislative history, which he famously rejects as
antithetical to textualism in statutory interpretation. But the Advisory Committee
Notes are different. Legislative history consists of reports by congressional
committees and individual members’ statements about a piece of legislation passed by
two distinct houses of Congress; such statements may not reflect the views or intent of
the enacting legislature. By contrast, the Advisory Committee is a singular body that
prepares the explanatory notes along with the text of the rule all at the same time and
both the text and Notes travel through the REA process together.76 Krupski marked
just the second time Justice Scalia had explicitly rejected use of the Advisory
Committee Notes in this way, although he has over the years written or joined
multiple decisions relying on the Notes for authority.77 It remains to be seen whether
Scalia (or any other Justice) now wants to carry the point further.
Stricter textualism over the Federal Rules also revives the debate over how much
interpretive leeway the Court should exercise over the Rules. On one view, the Court,
being both rule interpreter and rulemaker, has broader interpretive license, since it is
the source of the rules and the separation of powers concerns involved in statutory
interpretation are absent.78 On the competing, more recent, view, the Court owes a
73 Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85
NOTRE DAME L. REV. 849, 876-77, 883 (2010); Clermont & Yeazell, supra note ___, at 851; Stephen B.
Burbank, Pleading and the Dilemmas of Modern American Procedure, 93 JUDICATURE 109, 116 (2009).
74 Has the Supreme Court Limited Americans' Access to Courts?: Hearing Before the S. Comm. on
the Judiciary, 111th Cong. (2009) (statement of Stephen B. Burbank).
75 Krupski, 130 S. Ct. at 2498-99 (Scalia, J., concurring in part and concurring in the judgment).
76 Struve, supra note ___, at 1159.
77 Id. at 1161-65.
78 Karen Nelson Moore, The Supreme Court’s Role in Interpreting the Federal Rules of Civil
Procedure, 44 Hastings L.J. 1039, 1092-93 (1993); Joseph P. Bauer, Shiavone: An Un-Fortune-Ate
Illustration of the Supreme Court’s Role as Interpreter of the Federal Rules of Civil Procedure, 63 Notre
Dame L. Rev. 720, 728-29 (1988).
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level of deference to the Advisory Committee, given the way the process actually
functions.79 In adopting the former position while also rejecting or limiting the force
of the Committee Notes, the Court may be attempting to wrest control of the REA
process away from the committees.
While the Court grapples with the REA process in its adjudication, the REA
process has been as active as ever. December 2011 marks the first time since the rise
of the Roberts Court that no new or amended Rules of Civil Procedure have taken
effect, with many significant changes taking effect in that time. The most notable was
the Restyling Project, effective in December 2007, which rewrote all the rules in
clearer, more modern language and organization, without changing the meaning or
understanding of the rules. There also were major changes to the text of Rule 56
summary judgment, designed to bring the rule in line with practice that had followed
court-pronounced procedures;80 to all the discovery rules to provide for the disclosure
and discovery of electronically stored information;81 and to all the timing rules. These
changes and amendments show the modern rulemaking process at work—a severalyears process involving several layers of review and study, including empirical
analysis and consideration of the broad interaction of different rules and the body of
the rules as a whole and explanations for that work.
B. Lower Courts
Of course, the Supreme Court is not the only court engaged in procedural
adjudication. Most procedural questions are decided in the lower federal courts,
particularly district court judges dealing with issues, such as pleading and discovery,
that cannot be appealed and remain entirely in the district court’s hands. In fact, two
commentators argue, because the lower courts are available to handle routine
adjudication and interpretation of the Rules and most procedural matters, the Court
should spend more of its time on procedural rulemaking as the lead in the REA
process and less time in an adjudicative role.82
The best use of Supreme Court adjudication occurs when it can clean-up
confusion or inconsistencies among the lower courts, particularly when it manages to
produce a clearer rule. Thus, the Court’s recent, more-consistent decisions on
jurisdictionality can serve not only to correct lower courts, but also to remind them to
take a narrow view of what affects adjudicative jurisdiction.83 Another success in this
regard is Hertz Corp. v. Friend. At issue was the meaning of “principal place of
business” as the place of corporate citizenship under the diversity statute.84 The lowercourts had overcomplicated the question, adopting multi-factor tests and consistently
adding new factors and different combinations of factors to the analysis. The result
79
Struve, supra note ___, at 1129-30, 1135
Fed. R. Civ. P. 56; Committee Notes to FRCP 56 2010 Amendments.
81 Fed. R. Civ. P. 26(a)(1)(A); 34(a)(1)(A).
82 Mulligan & Staszewski, supra note ___, at ___ (m.7).
83 Wasserman, Drive By, supra note ___, at ___ (m.20).
84 28 U.S.C. § 1332(c)(1).
80
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was an approach “at war with administrative simplicity” that “has failed to achieve a
nationally uniform interpretation of federal law.”85 Enter the Hertz Court, which
defined principal place of business as the “place where a corporation's officers direct,
control, and coordinate the corporation's activities.”86 And the Court did so explicitly
in the name of having a clearer, less administratively complex rule for the lower
courts to apply in a nationally uniform manner.87
At the same time, some of the Court’s decisions reflect a similar ambivalence
towards the lower courts. The Court in Twombly and Iqbal was expressly concerned
with burdensome discovery interfering with business activities and with the ability of
high-ranking government officials to perform their public functions. One solution
besides ratcheting the pleading standard was to rely on trial judges to engage in
managerial judging, to exercise their discretion to control and narrow discovery.88 But
the Court would have none of it. During arguments in Iqbal, Justice Scalia put it most
pointedly: “Well, I mean, that's lovely, that--that the--the ability of the Attorney
General and Director of the FBI to--to do their jobs without having to litigate personal
liability is dependent upon the discretionary decision of a single district judge.”89 And
Iqbal found careful case management especially ineffective in civil rights cases
involving qualified immunity.90
Distrust aside, lower courts retain a uniquely important role in the procedure
revival because they are charged with trying to make the Court’s broad, often
minimalist pronouncements work on the ground. Sometimes, as in Hertz, the Court
successfully cleans up lower-court confusion. Other times, the Supreme Court
exacerbates the confusion and leaves it to lower courts to sort it out. The flood of
scholarship that followed Iqbal and Twombly was grounded in anticipation of what the
cases would bring about, how they would change pleading and civil litigation for
better or worse and what cases would be particularly hard hit.
But the great unknown is what lower courts are actually doing with the “deeply
inscrutable”91 Iqbal and Twombly. In March 2011, the Federal Judicial Center drafted
a report to the Civil Rules Committee, which compared 12(b)(6) activity in 2006 (the
year before Twombly) and 2010 (the year after Iqbal) and ultimately shows that we do
not yet know much about the effect of these cases, if any. The study found a general
increase in the rate of filing of motions to dismiss,92 suggesting that Iqbal and
Twombly give defendants an incentive to at least try to get the complaint dismissed.
85
Hertz, 130 S. Ct. at 1191-92.
Id. at 1192.
87 Id. at 1193-94.
88 Stevens in Twombly and Iqbal dissents; scholarship on this point?
89 Transcript of Oral Argument at 35-36, Iqbal, 129 S. Ct. 1938 (comment of Justice Scalia).
90 Iqbal, 129 S. Ct. at 1953.
91 Mark Moller, Procedure’s Ambiguity, 86 IND. L.J. 645, 645 (2011).
92 Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared J. Bataillon, Motions to Dismiss for
Failure to State a Claim After Iqbal: Report to the Judicial Conference Advisory Committee on Civil
Rules 8-12 (FJC 2011), available at.
86
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The study also showed an increase in defendants’ success on those motions, with 75
% of motions being granted in whole or in part.93 But that increase in the granting of
motions was mainly limited to dismissals with leave to amend,94 dismissals that
includes an opportunity (perhaps multiple oppprtunities) to replead. In fact, the
authors actually found a decrease in the granting of motions without leave to amend,
even in § 1983 and employment discrmination actions, the cases that many (including
me) feared would be most adversely affected by the new standards.95 These results
conformed to a study by Patricia Hatamyar of cases during the first three months
following Iqbal, which also showed an increase in the granting of 12(b)(6) motions,
but no increase in granting without leave to amend.96 But Hatamyar recently updated
her study to cover the first year since Iqbal. She found that a court was 1.74 times
more likely to dismiss without leave to amend under Iqbal than under Conley,
suggesting that such case-terminating grants are becoming more prevalent. And she
found the problem exacerbated in constitutional civil litigation.97
The findings about dismissal with leave to amend (if they remain) make some
intuitive sense. Twombly and Iqbal were about factual sufficiency in complaints—the
amount of fact and detail that plaintiffs must plead to state a claim and get to
discovery. But a factual-insufficiency dismissal typically is accompanied by an
opportunity to replead and add (if possible) greater detail to cure the defect. The
results also may suggest an unexpected dynamic in the lower courts—courts are
granting motions to dismiss, but are giving plaintiffs additional opportunities to plead
the necessary facts, rather than dismissing the litigation entirely. This sounds in an
attempt by lower court judges to strike some balance in the face of charges that Iqbal
was slamming the courthouse doors on plaintiffs. Complaints will be dismissed, but
plaintiffs will be given opportunities to get it right. Of course, this has the ironic effect
of increasing litigation costs not in discovery (which is what motivated the majorities
in both Iqbal and Twobly and what concerned many commentators98), but at a
threshold stage. And it has the (perhaps intended) effect of eventually wearing
plaintiffs down and not bother repleading with enough to satisfy the court.
The real result may be that we will never identify any consistency or widely
common trends in the lower courts, at least not for awhile,99 and perhaps never.
Instead, we will see a wide variance among cases and courts as to how demanding the
pleading standard will be and how stringently it will be applied. And such variance is
93
Id. at 13.
Id.
95 Id.
96 Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM.
U. L. REV. 553, 598, 618 (2010).
97 Partricia W. Hatamyar, An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions,
___ U. RICH. L. REV. ___ (forthcoming 2011) (m.2).
98 Iqbal; Twombly; Epstein; Device Guys
99 Clermont & Yeazell, supra note ___, at 839-40, 846.
94
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precisely what we expect when judges are given discretion to apply their judicial
experience and common sense to a legal question.
The burden on lower courts also entails reading between the lines of the Supreme
Court’s recent pronouncements. For example, in Krupski, the Court expansively
interpreted “mistake concerning the proper party’s identity” for relation back under
Rule 15(c)(1)(C)(ii). A mistake occurs, the Court held, whenever a party
“misunderstood crucial facts” regarding potential defendants’ liability. A failure to
name a possibly liable person is a mistake unless a plaintiff’s failure to name a
defendant is based on a “fully informed decision” not to pursue a particular person as
a defendant. The Court also cited several dictionary definitions, including one that
defines a mistake as “a wrong action or statement proceeding from faulty judgment,
inadequate knowledge or inattention.”100 The idea was to balance the defendantprotective policies underlying statutes of limitations with the preference in Rule 15 for
resolution on the merits, which demanded a broad understanding of when a mistake
has occurred.101
One question that long has confounded lower courts, but that the Supreme Court
has not touched, is whether a plaintiff makes a mistake when she sues a John Doe or
pseudonymous defendant, where the defendant’s true identity is not known at the time
of filing the original complaint. Prior to Kripski, most courts had held that lack of
knowledge is not a mistake under the rule, thus a plaintiff cannot relate an amended
complaint back when she discovers Doe’s real name.102 Krupski did not involve an
unknown defendant. But the Court’s expansive, policy-based understanding of
mistake has caused some district courts to reconsider. If a mistake means a failure to
name a party as a result of anything less than a fully informed decision, including
insufficient knowledge of some fact, there is no reason that lack of knowledge of the
defendant’s actual name never can be a mistake. The Court’s decision thus has created
a new split fairly quickly.103
Lower courts also must figure out how broader, less-minimalist decisions on one
Rule of Civil Procedure affect other rules. This could be a problem that develops in
the wake of Wal-Mart. The five-justice majority held that the requirement of
“common questions of law or fact” in Rule 23(a)(2) functionally included a
predominance requirement and was not satisfied where there are too many differences
100
Krupski, 130 S. Ct. at 2493-94, 2496.
Id. at 2493.
102 Howard M. Wasserman, Civil Rights Plaintiffs and John Doe Defendants: A Study in Section
1983 Procedure, 25 Cardozo L. Rev. 793, 797-98 (2003); compare Barrow v. Wethersfield, 66 F.3d 466,
469-70 (2d Cir. 1996) with Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186, 200-01 & n.5
(3d Cir. 2001).
103 Compare Daniel v. City of Matteson, 2011 WL 198132, *4 (N.D. Ill. 2011) and Domingeuz v.
City of New York, 2010 WL 3419677, *2-3 (E.D.N.Y. 2010) with Archibald v. City of Hartdord, ___
F.R.D. ___, 2011 WL 1770952 (S.D.N.Y. 2011) and Bishop v. Best Buy Co., Inc., 2010 WL 4159566,
*3 (S.D.N.Y. 2010).
101
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among the legal and factual circumstances of the class members.104 But, as Robin
Effron has pointed out, the “common question” standard is not limited to class
actions; it also is the standard for a number of other rules, including ordinary
permissive joinder of plaintiffs and defendants, permissive intervention, and
consolidation of cases.105 Lower courts might seize on Wal-Mart to burden other
joinder procedures, even routine permissive joinder, thereby hampering and
undermining the efficiencies that the Federal Rules sought to achieve by allowing for
multi-party litigation.
C. Congress
Congress also has recently entered the procedural mix. One enactment was the
Class Action Fairness Act of 2005 (“CAFA”), which pushed more large-money statelaw class actions from state to federal court by granting federal jurisdiction on
minimal diversity.106 The Court has yet to directly handle a CAFA case, other than to
note its inapplicability to the class actions that it was facing.107
But a different, potentially more significant, trend is Congress’ efforts to engage
more directly with the Federal Rules. These are frequently discussed, although never
enacted or seriously pursued. Former Senator Arlen Specter was behind several
Senate efforts (with parallel proposals in the House) to undo Twombly and Iqbal and
to return to the pleading regime established by Rule 8(a)(2) and Conley.108 In 2011,
House Republicans (back in the majority) introduced the Lawsuit Abuse Reduction
Act (“LARA”), comprehensive tort-reform legislation, which included amendments to
Rule 11; the bill would make sanctions mandatory, focus sanctions on compensating
the party that sought the sanctions rather than deterring future misconduct, and make
meaning an award attorneys’ fees the common and preferred sanction.109 This
congressional activity again shows that there is no essential political bias behind
efforts to change procedural rules. Democrats sought to overturn Supreme Court
decisions seen as anti-plaintiff, while Republicans sought to change rules (enacted
through the REA process) in a way expected to benefit business defendants. Whether
104
105
See supra notes ___ and accompanying text.
Robin Effron, Could Wal-Mart reach beyond class actions?, NAT’L L.J., June 30, 2011, available
at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202499048703&Could_WalMart_reach_beyond_cla
ss_actions&slreturn=1&hbxlogin=1
106 28 U.S.C. § 1332(d); 28 U.S.C. § 1453
107 CAFA arguably limits the weight of the Court’s decision in Smith v. Bayer Corp. The issue there
was whether a federal court, having rejected class certification under Rule 23, could enjoin a substantially
identical state class action; the state class action, which was not removable because there was not
complete diversity, now would be removable under CAFA.
108 Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009); Notice Pleading Restoration
Act of 2009, S. 1504, 111th Cong. (2009)
109 Lawsuit Abust Reduction Act of 2011, S.533, 112th Cong. (2011); Lawsuit Abuse Reduction Act
of 2011, H. 966 (2011) LARA is similar to legislation that Republicans proposed when they previously
controlled Congress earlier in the 2000s. See Lawsuit Abuse Reduction Act of 2005, H.R. 420, 109th
Cong. (2005).
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it is appropriate for Congress to do so, regardless of ideological bent, is a separate
question.
Moreover, the Court is not above punting procedural questions directly to the
newly engaged Congress. In McIntyre, the Court considered whether a non-U.S.
defendant could be subject to jurisdiction in New Jersey, where the defendant itself
never entered or sent its product to New Jersey, but instead worked with an Ohio
distributor empowered to sell throughout the United States. A majority of the Court
saw the defendant as having “national” contacts with the United States, but not with
the particular state. In his plurality opinion, Justice Kennedy called on Congress to
consider a statute establishing federal court jurisdiction in diversity cases based on
national contacts, even if the defendant lacks contacts with any single state.110 Federal
Rule of Civil Procedure 4(k)(2) already allows for personal jurisdiction on national
contacts in federal question cases.111
This represents the Court punting to Congress and away from itself for two
reasons. First, it ignores the nicer question of whether the Court (or, more
fundamentally, the rules committees and the REA process) could provide for nationalcontacts jurisdiction in diversity cases via rule. It is perhaps telling that, if the Court
was going to punt an issue, it punted to Congress and not to the REA process. Second,
more fundamentally, it leaves open the very issue in McIntyre—whether jurisdiction
on such national contacts comports with due process; a statutory grant of jurisdiction
does not obviate that question.
Conclusion
Perhaps calling the Roberts Court’s recent activity a civil procedure “revival”
overstates things. The Rehnquist Court did not entirely ignore civil procedure.112 And
proceedure cases remain a small part of the Court’s already-small docket.113 Still,
twenty or more cases in six years is not insignificant.
Concurring in the judgment in McIntyre, Justice Breyer argued that it was not
clear how well the current personal jurisdiction framework functions in light of
modern technology, travel, commerce, and communications, and called on the Court
to find a case implicating those modern issues quickly, particularly one in which the
United States Solicitor General participates, so the Court might fully air and resolve
those questions.114 We can expect the Court to take up personal jurisdiction again
soon. In fact, we might even see the next decade repeat the 1980s, when the Court
decided on average one personal jurisdiction case per year.
110
McIntyre, 131 S. Ct. at 2790.
Fed. R. Civ. P. 4(k)(2).
112 Particularly as to Rule 23 and class action, see, e.g., Ortiz v. Fibreboard Corp., 528 U.S. 815
(1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), and subject matter jurisdiction. See
Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005)
113 Mulligan & Slaszewski, supra note ___, at ___ (m.54).
114 McIntyre, 131 S. Ct. at 2791, 2792-93, 2794 (Breyer, concurring)
111
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Moreover, the Roberts Court, in its current or in ideologically similar form, likely
will last for another generation. Five of the nine justices are under 65; four have
served six years or fewer. There is good reason to believe that this renewed Supreme
Court interest in civil procedure and in the Federal Rules will continue.