Volume 90 · Issue 4



Mary Kay Kane

90 OR. L. REV. 913


Some Memories of Arthur Miller

Hon. Jack B. Weinstein

90 OR. L. REV. 919


A Student’s Tribute to Arthur R. Miller

Hon. Ronald M. Gould

90 OR. L. REV. 923


The Procedural Vision of Arthur R. Miller: A Practitioner’s Tribute

Elizabeth J. Cabraser

90 OR. L. REV. 929


A Tribute to Arthur Miller

Alan B. Morrison

90 OR. L. REV. 937


A Journalist’s Tribute to Arthur R. Miller

David Hartman

90 OR. L. REV. 941


Arthur Miller Scared the Hell out of Me

Michael Moffitt

90 OR. L. REV. 945


King Arthur Confronts TwIqy Pleading

Edward H. Cooper

90 OR. L. REV. 955


Rule 25 of the 1912 Equity Rules stated that “it shall be sufficient that a bill in equity shall contain . . . a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.” Not mere conclusions, not evidence, but “ultimate facts.” And, at that, not facts “constituting the cause of action.” The bare words of Rule 25 could mean something quite different to a twenty-first-century audience than they meant to a twentieth-century audience. But they may serve as a foil to the challenge framed by the Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal for the committees that advise the Judicial Conference, and thence the Court, on the Court’s discharge of its responsibilities under the Rules Enabling Act. In those cases, the Court relied on an interpretation of Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires that a pleading stating a claim for relief contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Any response to the challenge of drafting a pleading must begin by determining whether there is any reason to respond at all by recommending revisions of Rule 8(a)(2) or any other Rule of Civil Procedure. The Court did not suggest any reason to reconsider Rule 8(a)(2). But the deluge of academic commentary stimulated by the Court’s opinions reflects deep concern that the Court has set lower courts on a path that will lead to improvident dismissals for failure to state a claim upon which relief can be granted. Professor Arthur R. Miller’s article, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, is a masterful expression of these concerns. This Article is framed as an appreciation of Professor Miller’s direct excoriation of Twombly and Iqbal and his straight-on assertion that something must be done to reset pleading standards, whether by the Court itself with the advice of its advisory committees or by Congress.

The Necessity of Tradeoffs in a Properly Functioning Civil Procedure System

Alan B. Morrison

90 OR. L. REV. 993


When judges, lawyers, and law professors discuss tradeoffs, it is usually in the context of debates about substantive policies. Will too much environmental regulation make our industries uncompetitive? Will restricting the grounds for which an employee may be fired limit the flexibility of management to control the workplace? Will increasing tort liability for dangerous products stifle innovation? Do certain provisions in the tax code unduly favor one industry over another? In each case there are substantive policies that would be advanced or hindered by taking one position or the other. Sometimes the courts or legislatures are explicit about the tradeoffs; at other times they are not. But procedure seems different, at least at first blush, perhaps in part because in the federal system the rules are issued by the Supreme Court after a lengthy committee process involving judges and lawyers, rather than elected legislators. How can the form of a complaint or the time to answer or amend involve tradeoffs in any meaningful sense of that word? Discovery rules can be viewed as simply the means by which information is obtained for use at trial, and if there are tradeoffs, they are not apparent on the face of the rules. That impression may explain why procedural rules seem so bland, and why they are so hard to understand unless the tradeoffs are made visible and their bases, along with the reasons why one choice rather than another was made, revealed.

Access to Justice Within the Federal Courts—A Ninth Circuit Perspective

Hon. Diarmuid F. O’Scannlain

90 OR. L. REV. 1033


“The Future of Access to Justice” is an ambitious theme for a symposium, and I can think of few higher compliments to Professor Arthur Miller than to say that he spent his career in the steadfast pursuit of it. However, as I sat down to collect my thoughts for this Article, I found myself troubled by some treatment of this topic in the legal academy, in the popular press, and even in the Congressional Reports. All too often, this phrase—what is or be the highest aspiration of our profession—is taken to mean little more than the ability not just to sue for any perceived slight in the federal courts, but to take that suit all the way to trial. Any decision by the Supreme Court of the United States, no matter how firmly rooted in the Constitution or in the will of Congress, that is perceived to stand in the way of this goal is decried as “rationing justice” or pursuing a nefarious political agenda. Because such a view misunderstands both the constitutional role of and the objective realities faced by the federal courts, I write to express why we must reexamine what is necessary to promote true access to justice in the federal courts.

Location, Location, Location: A Proposal for Centralized Review of the Now Largely Unreviewable Choice of Venue in Federal Litigation

Harvey I. Saferstein and Nathan R. Hamler

90 OR. L. REV. 1065


In real estate, the saying goes that the three most important things are: location, location, and location. The same seems to apply to litigation. Lawyers and clients seem to believe, for better or for worse, that their fate lies in the choice of the right court location. For that reason, litigants “race” to the courthouse. The early skirmishing in major commercial litigation is about where the case can be filed. Good commercial lawyers draft forum selection clauses for all of their contracts, which in turn has spawned decades of litigation over the enforceability of such clauses. Patent litigators rush to file in federal courts that are seen as friendlier to patent plaintiffs. Removal of cases to federal court (and remands back to state court) has become a cottage industry. New laws, such as the Class Action Fairness Act (CAFA) of 2005, have made removal and remand, at least in the putative class action context, into something of an art form.

The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions

Danya Shocair Reda

90 OR. L. REV. 1085


For the past three decades, common wisdom in the legal profession has maintained that the cost of trials, and the trial process itself, are too time-consuming and too expensive to maintain. In May 2010, elite lawyers, federal judges, and prominent legal scholars gathered at Duke Law School to discuss these issues and the future of civil process in the federal courts. Most participants agreed that the focus of federal rules reform should be reigning in the high costs and delay of civil litigation. In a world of electronic discovery and electronically stored information, the costs of litigation were undoubtedly skyrocketing. If discovery had always been ripe for abuse, the ubiquity of electronically stored information made it all the more so. Yet empirical data presented at the conference told a different story. The Federal Judicial Center (FJC) reported that in its study of federal cases that had closed in the 2008 calendar year, the median cost of litigation for defendants was $20,000, including attorneys’ fees. For plaintiffs, the median cost was even less, at $15,000, with some reporting costs of less than $1600. Rather than out-of-control discovery costs emerging from the electronic discovery era, the FJC found median discovery costs represented 3.3% of the amount at stake in litigation. The results were surprising to those in attendance, but they shouldn’t have been. The FJC’s 2009 data were consistent with a line of similar studies conducted every few years and dating back to the late 1960s. Empirical work has simply never provided support for the widespread belief that the system takes too long, costs too much, and is in desperate need of repair. There exists a significant discrepancy between the common sense understanding of the civil justice system, driven by what I call the “cost-and-delay narrative,” and the picture that develops from the empirical studies. This Article seeks to understand the resilience of the cost-and-delay narrative in the face of empirical data that would seem to undermine it. To do so, this Article carefully analyzes the latest data on federal civil process showing that, even with the substantial changes in practice over the last decade, there is remarkable continuity in the findings of empirical studies. Equally consistent, this Article explains, is the cost-and-delay narrative itself, which has thrived for decades. The longevity of the cost-and-delay narrative should raise alarm bells, because it provides support for efforts to foreclose access to civil courts. Building on the work of scholars, including Arthur Miller, who have long sought to bring this discrepancy to light, this Article contextualizes the cost-and-delay narrative, and the reforms for which it is used to advocate, as part of a political struggle over the nature of the regulatory state and the proper role of courts.

The (Continued) Assault on Privacy: A Timely Book Review Forty Years in the Making

Alex Kozinski and Stephanie Grace

90 OR. L. REV. 1135


For many of us, the name “Arthur Miller” instantly brings us back to the long law school nights spent cuddling up with our favorite civil procedure textbook. For others, it conjures up images of Miller’s media persona, from Miller’s Court to Court TV to Good Morning America. And, for the unfortunate few, mere mention of the name triggers anew the terror struck into their hearts the moment they spotted the venerable practitioner at opposing counsel’s table or on the signatory line of a response brief. Throughout the years, Miller has been a prolific and engaged teacher, academic, celebrity and advocate, making invaluable contributions to legal discourse and the practice of law. And today, as many of Miller’s colleagues and admirers comment on his enviable body of work, we have selected but one to celebrate the occasion—a work that has not only endured the test of time, but embraced it. The year was 1971. Nixon was president, Patton won the Academy Award, and gas was 36 cents a gallon. And, while many of us were squandering our time making celebrity appearances on The Dating Game or waiting to be born, the one and only Arthur Miller was carefully crafting scholarship considering the grave implications the computer would have on modern conceptions of personal privacy. And so The Assault on Privacy: Computers, Data Banks, Dossiers was born.

What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime

Brooke D. Coleman

90 OR. L. REV. 1147


In the timeless classic, It’s a Wonderful Life, an angel named Clarence shows main character George Bailey how the world would have looked without him in it. It is the ultimate “what if” moment, and George discovers that if he had not been born, the world would have been a worse place. His brother would have died as a young boy, soldiers who his brother would have otherwise saved would have all passed away, and the town he grew up in would have been in ruins. It is a life-affirming movie, and perhaps that is why many of us catch at least a moment of it during December as it loops twenty-four hours a day on television. Wondering what our families’ and friends’ lives would be like without us is quite an exercise—one that makes us appreciate what we have suffered and enjoyed, how we have learned from those moments, and what we have to look forward to as life goes on. Perhaps because of movies like It’s a Wonderful Life, we think of asking this “what if” question as a personal reflective experience. But, it need not be limited as such. The process of considering what life might be like without a particular moment or person can have broader application. Just as in the personal sphere, asking this question in the academic context forces us to consider what the effect—both good and bad—of a particular moment has been, how as a society we have benefited or suffered from that moment, and how life might have been different without that moment. Through this exercise, an angel may not necessarily earn its wings, but we will gain a more concrete understanding of what a particular moment has meant.

Epilogue: On Miller, Mini-Fujis, and the Meaning of Access

Jennifer W. Reynolds

90 OR. L. REV. 1181