Civil Procedure

Volume 89.4
The Exception to Rule 12(d): Incorporation by Reference of Matters Outside the Pleadings
Laura Geary
B.A. 2018, Swarthmore College; J.D. Candidate 2023, The University of Chicago Law School

I thank Professor William H.J. Hubbard for his expert guidance and thoughtful feedback as well as the editors of the University of Chicago Law Review

This Comment explores the history of Rule 12(d), describes courts’ varying uses of the exception, and proposes a unifying method of interpretation for the future. Drawing on other procedural rules and an analogous doctrine in contract law, it argues that only unmistakably referenced written instruments may be incorporated.

Volume 89.1
Civil Procedure as the Regulation of Externalities: Toward a New Theory of Civil Litigation
Ronen Avraham
Professor of Law, Tel Aviv University Faculty of Law; Lecturer, University of Texas at Austin School of Law
William H.J. Hubbard
Professor of Law, The University of Chicago Law School.

We are grateful for comments from Lynn Baker, Bob Bone, Alon Klement, Shay Lavie, Jay Tidmarsh, Diego Zambrano, and participants at the Law Faculty Workshops at the University of Chicago, the University of Notre Dame, Tel Aviv University, and the University of Texas, as well as the ALEA Annual Meetings. We thank Ramon Feldbrin, Kathryn Garcia, Sakina Haji, Deanna Hall, Adam Picker, Jill Rogowski, and Kelly Yin for valuable research assistance. William Hubbard thanks the Paul H. Leffmann Fund and the Jerome F. Kutak Faculty Fund for research support. An earlier version of this Article was titled “Procedural Flexibility in Three Dimensions.”

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question.

Removing Interpretative Barnacles: Counterclaims and Civil Forfeiture
Nicholas Hallock
B.A. 2017, Columbia University; J.D. Candidate 2022, The University of Chicago Law School

Thanks to Professor William Hubbard and Ramon Feldbrin for thoughtful feedback.

The Pueblo of Pojoaque is a Native American tribe in northern New Mexico. Its reservation has a population of 2,712, and, like many tribes, the Pueblo of Pojoaque operates multiple casinos and resorts.

Amanda M. Rose
Professor of Law, Vanderbilt University Law School.

For helpful comments and conversations, I would like to thank Lynn Baker, Ben Berry, Brian Broughman, Elizabeth Cabraser, Brian Fitzpatrick, Todd Hilsee, Lee Kovarsky, Craig Lewis, Debbie Matties, Robert Mikos, David Siffert, Charlie Silver, Randall Thomas, Yesha Yadav, participants and panelists at the FTC’s workshop on Consumers and Class Action Notices, participants at Vanderbilt Law School’s 22nd Annual Law & Business Conference, and students enrolled in the University of Texas’s Colloquium on Current Issues in Complex Litigation. I am grateful to Regan Vicknair for excellent research assistance.

Class actions, brought on an opt-out basis under Federal Rule of Civil Procedure 23(b)(3) and state analogues, are highly controversial.

Exporting American Discovery
Yanbai Andrea Wang
Assistant Professor of Law, University of Pennsylvania Carey Law School.

For generous conversations and comments, I am grateful to Aziza Ahmed, Kevin Benish, Pamela Bookman, Beth Burch, Guy‑Uriel Charles, Kevin Clermont, Zachary Clopton, Brooke Coleman, William Dodge, David Engstrom, Nora Engstrom, George Fisher, Maggie Gardner, Myriam Gilles, Jasmine Harris, Larry Helfer, Deborah Hensler, Aziz Huq, Mark Kelman, Amalia Kessler, Tim Lovelace, Rick Marcus, Doug Melamed, Jenny Martinez, Anne O’Connell, Katerina Ossenova, Aaron Simowitz, Shirin Sinnar, David Sklansky, David Sloss, Norman Spaulding, Al Sykes, Justin Weinstein-Tull, Steve Yeazell, Diego Zambrano, as well as participants at the American Society of International Law Research Forum, Annual Civil Procedure Workshop, Bay Area Civil Procedure Forum, Emerging Scholars Workshop, Grey Fellows Forum, Junior Faculty Federal Courts Workshop, Northern California International Law Scholars Workshop, “The Extraterritorial State” Symposium at Willamette, and workshops at UC Berkeley, Boston College, Cardozo Law, Cornell, UC Davis, Duke, Emory, the University of Florida, Fordham, Georgetown, the University of Michigan, the University of Pennsylvania, and the University of Virginia. For exceptional research assistance, I thank Alexis Abboud, Douglas Callahan, Wesley DeVoll, Jeffrey Ho, Aletha Dell Smith, Sam Sherman, and Leonardo Villalobos. Thanks also to the thoughtful editors of The University of Chicago Law Review.

Across the country, federal courts now routinely have a hand in the resolution of foreign civil disputes. They do so by compelling discovery in the United States—typically as much discovery as would be available for a lawsuit adjudicated in federal district court—and making it available for use in foreign civil proceedings governed by different procedural rules.
Exhaustion of Local Remedies and the FSIA Takings Exception: The Case for Deferring to the Executive’s Recommendation
Ikenna Ugboaja
AB 2018, Harvard College; JD Candidate 2021, The University of Chicago Law School.

By 1976, Congress recognized that foreign states and their business enterprises were common participants in the global economy, often transacting with US citizens. It further recognized that there were no uniform or comprehensive rules governing when and how private parties could bring suit against those foreign governments in the courts of the United States.

Statutes and Spokeo: The Case of the FDCPA
Jason R. Smith
AB 2018, The University of Chicago; JD Candidate 2021, The University of Chicago Law School.

Thank you to Jon Fish, Garrett Solberg, and all of the editors at The University of Chicago Law Review for their comments and advice.

Political Questions and the Ultra Vires Conundrum
Richard H. Fallon Jr
Story Professor of Law, Harvard Law School.

I am grateful to Rachel Barkow, Curt Bradley, Tara Grove, Vicki Jackson, John Manning, Daphna Renan, Mark Tushnet, and Amanda Tyler for extraordinarily helpful comments on a prior draft, to participants at Harvard Law School’s Public Law Workshop for illuminating questions and suggestions, and to Grayson Clary, Ian Eppler, Emily Massey, and Alex Slessarev for superb research assistance.