Now in Print: Cavanagh on Twombly and Litigation Culture

Edward (Ned) Cavanagh has two new articles in print. The latest issue of Litigation (the journal of the Litigation Section of the American Bar Association) features Ned’s take on the U.S. Supreme Court’s recent civil pleading decisions. Entitled “Twombly’s Seismic Disturbances,” the article concludes that the decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, continue “an unfortunate trend in the case law pushing the process of outcome determination to an ever-earlier point on the litigation time line.” There is no online version of the article.

Ned’s second article is called “Rulemaking, Litigation Culture and Reform in Federal Courts” and appears in the American Journal of Trial Advocacy. Here is the abstract:

Culturally based litigation practices are central to the policies of federal courts.  Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts.  These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts.  This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure.  The author proposes that rulemaking must complement cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, cultural practices will ultimately establish standards for the conduct of litigation in the federal courts.

The article is not yet available online.

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