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\"Capital cases involving foreigners as defendants are a serious source of contention between the United States and foreign governments. Most countries of the world have abolished capital punishment, and foreign governments actively try to keep the United States from executing their citizens. By treaty, foreigner defendants must be informed upon arrest that they may contact a consul of their home country for advice and assistance. Police in the United States are lax in complying. When lawyers ask state or federal courts to enforce the treaty, US judges typically refuse, based on the opinion of the US Department of State that the issue is to be handled at the diplomatic level, but not by courts. Foreign governments have taken the United States into international courts, which say that the courts in the United States must enforce the treaty. The United States has not complied with these international rulings. As a result, foreigners continue to be executed in the United States after a legal process that their home governments find to be legally flawed. This continuing violation by the United States works against US consular representatives when they try to help Americans detained in foreign jails. This book explains what the United States must do to overcome the impasse it has created, and to ensure justice for foreigners charged with serious crime. John Quigley is Professor Emeritus at the Ohio State University Moritz College of Law\"-- Provided by publisher.

This Article presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions. Using nearly 2000 randomly selected employment discrimination and contract cases, the Article tries to assess the performance of Twombly and Iqbal, which raised the federal pleading standard, in filtering cases according to merit. This Article begins by explaining how such data might be helpful in making such an assessment, taking into account the possibility that parties' behavior might have changed following Twombly and Iqbal. This Article ultimately concludes that even using this large collection of data—the most comprehensive data assembled to date on the subject—it is not possible to determine whether \"Twiqbal's\" supporters or critics are more accurate in their assessments of the efficacy of the new plausibility pleading regime with respect to its ability to filter cases according to merit at the prediscovery stage. This null result points to the very real possibility that plausibility pleading's case-quality effects—a quintessential empirical question—simply cannot be answered using data. This Article's basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.

Few developments in civil procedure have caused anything like the furor that has greeted the Supreme Court's decisions in 'Bell Atlantic Corp. v. Twombly' and 'Ashcroft v. Iqbal' (hereinafter \"Twiqbal\"). Indeed, earlier installments in the modern transformation of pretrial practice-from the rise of summary judgment, as symbolized by the Supreme Court's 1986 Celotex trilogy, to the serial expansion of judicial case-management powers under Rules 16 and 26 and the related spread of \"managerial judging\"-look like blips on the scholarly radar by comparison. Yet the reaction to Twiqbal has not just been notable for its volume or intensity. The reaction has also, to an unusual degree, tended toward the empirical. In fact, it sometimes seems as if a hundred empirical flowers have bloomed, each purporting to capture something significant about the decisions' on-the-ground impact.

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court's decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court's decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly in civil rights cases. We then empirically examine the extent to which the party (of appointing president), gender, and racial composition of panels are associated with their disposition of 12(b)(6) appeals across all policy areas pooled, also separately analyzing discrimination claims, all \"other civil rights\" claims, and non-civil rights claims. We separately analyze a random sample of (predominantly non-precedential) cases and a set of only precedential cases. In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample. The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims. Our results for gender contradict conventional wisdom in the literature that women judges' preferences differ from men's only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs' access to discovery. Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.

The Federal Rules of Civil Procedure permit litigants to make changes to the substance of their initial pleading. Those changes raise a constitutional question when the initial pleading fails to establish a constitutionally required element of a federal court’s jurisdiction: May the court permit the change, or must it dismiss the complaint as a nullity? The federal circuit courts are split in their answers to that question, with some circuits even issuing internally inconsistent holdings under different procedural rules. But regardless of the procedural rule at issue, the answer should be the same: Article III’s jurisdictional requirements do not prohibit procedural moves from curing a jurisdictional defect. Taking that position, this Note contributes the only thorough analysis of the so-called “nullity doctrine” and its vices and, in the process, clarifies the relationship between Article III’s jurisdictional requirements and the procedural rules that effectuate them.

L. No. 114-153, 130 Stat. 376, was passed in 2016, commentators took note of its potential to create greater nationwide uniformity in trade secrets law and give companies the benefit of the federal court toolbox to protect their valuable trade secrets and confidential information. RICO claims may be attractive to plaintiffs because the statute mandates recovery of reasonable attorney fees and treble damages. 18 U.S.C. $ 1964(c). By contrast, the DTSA on its own, as well as many analogous state laws, authorizes only exemplary damages, limited to double damages, and attorney fees only upon a showing of willful and malicious appropriation. [...]Section 1832 applies more broadly to apply criminal penalties to anyone who, \"with intent to convert a trade secret,\" \"knowingly\": (1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information; (2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information; (3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; (4) attempts to commit any offense described in paragraphs (1) through (3); or (5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3). [...]by incorporating Sections 1831 and 1832 as RICO predicates, the DTSA brought a wide range of trade secret offenses within the ambit of the racketeering statute.

Defendants frequently attach supporting materials to Rule 12(b)(6) motions to dismiss for failure to state a claim. The plain text of Federal Rule of Civil Procedure 12(d) dictates that judges must either exclude this material or treat the motion as one for summary judgment. However, a substantial exception has emerged that threatens to swallow the rule. The exception, called incorporation by reference, permits the consideration of outside materials when they are either referenced in the pleadings, central to the claim, or sometimes both. Courts have defined these elements differently and have diverged in their understandings of the doctrine. Incorporation by reference appealingly offers an expedient route to resolve cases. But it also skirts the text and intention of the Federal Rules. 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.