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Posted April 16, 2014

A. Benjamin Spencer, Expert in Civil Procedure and Jurisdiction, to Join UVA Law Faculty

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A. Benjamin Spencer

A. Benjamin Spencer, who visited at UVA Law in 2011-12 and will join the faculty this fall, has written two books on federal civil procedure and jurisdiction that are used widely in law schools across the country.

A. Benjamin Spencer, an expert in federal civil procedure and jurisdiction, will join the University of Virginia School of Law in the fall as a professor of law.

Spencer visited at UVA Law in 2011-12 and is currently a professor at Washington and Lee University School of Law, where he serves as associate dean for research and director of the Frances Lewis Law Center. He will teach civil procedure, federal civil litigation and advanced civil litigation at UVA.

"Ben is a splendid addition to our faculty," said UVA law professor George Rutherglen, who teaches civil procedure as well . "His teaching and scholarship address the current and emerging issues in civil procedure and related subjects. He is also a wonderful teacher with a deep commitment to keeping legal education abreast of the dramatic changes that are now occurring in the legal profession."”

Spencer has authored two books in the area of federal civil procedure and jurisdiction, "Acing Civil Procedure" and "Civil Procedure: A Contemporary Approach." Both are widely used in law schools throughout the country. Two of his articles, "Plausibility Pleading" and "Understanding Pleading Doctrine," were among the top three most highly cited articles for 2008 and 2009, respectively, according to research published in the Michigan Law Review in 2012.

In 2007, Spencer was awarded the Virginia State Council of Higher Education's "Rising Star" award, granted to the most promising junior faculty member among all academic fields at all colleges and universities. He was the first law professor to receive the award.

Spencer said one of his primary interests is investigating how procedural rules, such as requirements for pleas — the formal written statements of a party's claims or defenses to claims — can affect access to courts in civil procedures.

"A big issue for me recently has been pleading doctrine," he said. "For decades, there was a very low barrier to entry — it was called notice pleading. You just had to give the other side notice of what your claim was; you didn't have to offer detailed facts."

In the late 2000s the Supreme Court changed the standard from notice pleading to what some refer to as "plausibility pleading," Spencer said. "So now you have to offer enough facts to make your claim plausible, rather than merely possible."

But in cases in which opacity lies at the heart of an allegation — such as discrimination or antitrust claims — proving plausibility can be difficult, Spencer said.

"If something is a concealed conspiracy, how am I supposed to provide evidence for plausibility?" Spencer said. "I can see the effects of what I think is a conspiracy, but unless I have someone on the inside who's a whistleblower, how can I provide evidence at the pleading stage prior to any discovery?"

The new pleading requirements, Spencer said, "make it more difficult to assert these claims."

Spencer said he also is doing research on a recent proposal to eliminate the pleading forms found in the appendix to the Federal Rules of Civil Procedure. The pleading standard suggested by the forms contradicts the Supreme Court's new standard of plausibility, but Spencer said the change would paper over that tension and serve to limit access to the courts further.

He's currently researching the history of the forms and how they've been used in order to show that they serve a valid purpose. Spencer said that when procedure becomes too restrictive, fairness becomes little more than an "illusion."

"We have a lot of substantive rights," Spencer said. "And there are statutes passed that give us substantive rights. But the other half of having those substantive rights is having procedure that allows you to enforce them."

Spencer earned his J.D. from Harvard Law School, and also holds a master's of science degree from the London School of Economics, where he was a Marshall Scholar. He received his bachelor's degree from Morehouse College.

Prior to joining the Washington and Lee faculty, Spencer was an associate professor of law at the University of Richmond School of Law. He also formerly worked as an associate in the law firm of Shearman & Sterling and as a law clerk to Judge Judith W. Rogers of the U.S. Court of Appeals for the D.C. Circuit.

In addition to his teaching and research, Spencer has served as a special assistant U.S. attorney for the Western District of Virginia. He is also a member of the American Law Institute, chair of the Virginia State Bar's Section on the Education of Lawyers and a member of the West Publishing Company Law School Advisory Board.

Spencer said he is looking forward to joining a faculty known for its collegial nature, which he experienced during his time as a visitor.

"Everyone [at UVA Law] is very smart and very thoughtful—they're able to offer really insightful comments and perspectives on your work," Spencer said. "I really enjoyed that dialogue."

Rutherglen said Spencer will be a valuable contributor to the exchange of ideas at the Law School.

"Ben is great colleague who's always willing to exchange ideas, whether he ultimately agrees or disagrees with you about how they should be resolved," said Rutherglen. "I learned much from my conversations with him when he visited here, and I look forward to his presence as a permanent colleague."

REPORTED BY MARY WHITTLE