Emory Law Journal

Volume 66Issue 1

The End of an Era? Federal Civil Procedure After the 2015 Amendments

Adam N. Steinman | 66 Emory L.J. 1 (2016)

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations. This Article argues that the amendments do not mandate a more restrictive approach to pleading or discovery. The final amendments—in light of their text, structure, and advisory committee notes—should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm that the amendment mechanism is unlikely to generate consequential changes to the Federal Rules. Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases.

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Strategic Immunity

Aaron L. Nielson & Christopher J. Walker | 66 Emory L.J. 55 (2016)

Empirical evidence shows that judges’ use of discretion follows certain trends that imply that judges consider factors besides the public interest when they exercise their discretion. These strategic decisions show that the Supreme Court may need to rethink the level of discretion or deference granted to the judges in certain doctrines such as qualified immunity. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public’s benefit. What the Court forgot, however, is that discretion can also have unintended consequences. This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations influencing a judge’s discretionary decision to clearly establish constitutional rights.

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The Officer Has No Robes: A Formalist Solution to the Expansion of Quasi-Judicial Immunity

Seena Forouzan | 66 Emory L.J. 123 (2016)

In 1871, Congress passed the Civil Rights Act. Section 1, more commonly known as 42 U.S.C. § 1983 today, is the primary vehicle for constitutional tort litigation. Federal courts have imported—contrary to the plain language of the law—several immunities to this law. This Comment focuses on one immunity in particular: absolute judicial immunity. Despite the “judicial” qualifier, absolute judicial immunity has been extended to a number of parties who are not judges. Although language in Supreme Court opinions certainly supports restricting absolute judicial immunity, this Comment proposes that the Supreme Court’s muddled methodology in this area supports the expansion of absolute judicial immunity. Fidelity to Supreme Court precedent will further expand absolute judicial immunity. This Comment proposes one solution to further the values disserved by the outgrowth of absolute judicial immunity: a formalist regime that clothes only judges with absolute immunity and the rest with qualified immunity.

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Too Far From Home: Why Daimler’s “At Home” Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases

Ariel Winawer | 66 Emory L.J. 161 (2016)

The Anti-Terrorism Act is a federal statute enacted to help grant recourse to United States plaintiffs who have lost family members in international acts of terrorism. A recent handful of Anti-Terrorism Act cases have been brought against the Palestinian Liberation Organization and the Palestinian Authority by plaintiffs whose family members were killed in terrorist attacks. A split between two district courts exists regarding whether personal jurisdiction in these cases is constitutional after the Supreme Court’s 2014 decision in Daimler AG v. Bauman. This Comment explores the application of personal jurisdiction under the Fifth and Fourteenth Amendments and argues that Daimler should not be applied to cases brought under the Anti-Terrorism Act. Instead, personal jurisdiction over the Palestinian Liberation Organization and the Palestinian Authority should be assessed under the federal due process standards of the Fifth Amendment, quashing concerns about the constitutionality of personal jurisdiction over these two entities.

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