Friday, May 27, 2016

Forced Individual Arbitration of Wage-and-Hour Claims Violates NLRA

            The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, held that forcing an employee to agree to bring any wage-and-hour claim through individual arbitration violated the National Labor Relations Act.  Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016).

            Epic sent an email to some employees with an agreement requiring them to bring wage-and-hour claims only through individual arbitration and to waive the right to participate in any class, collective, or representative proceeding.  The email said that employees were “deemed to have accepted this Agreement” if they continued to work at Epic. 

            Plaintiff agreed at the time, but later sued Epic in federal court for violations of the overtime requirements of the Fair Labor Standards Act and Wisconsin law.  Epic moved to compel individual arbitration.

            Section 7 of the NLRA provides that “[e]mployees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.  The Seventh Circuit stated, “Section 7’s ‘other concerted activities’ have long been held to include ‘resort to administrative and judicial forums.’”  The court held that “the phrase ‘concerted activities’ in Section 7 should be read broadly to include resort to representative, joint, collective, or class legal remedies.”   Thus, “insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”

            Further, the Federal Arbitration Act did not “save[] the ban on collective action.”  The district court’s denial of the motion to compel arbitration was affirmed. 

May 27, 2016 in Class Actions, Recent Decisions | Permalink | Comments (0)

Wednesday, May 25, 2016

Goings-On in the Committee that Never Sleeps (a/k/a the Civil Rules Advisory Committee)

            The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016.  The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.

            The report has three parts.  First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer. 

            Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference.  The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1).  The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”

            Third, the Advisory Committee:

 (a) “describes proposals under active consideration for eventual publication and adoption,” including:

  • a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
  • studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
  • “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and

(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:

  • the “separate document” requirement of Rule 58;
  • suggestions to assist pro se litigants;
  • amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
  • mandatory disclosure of third-party financing arrangements.

        In future posts, I will discuss some of these developments in more detail.

May 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, May 18, 2016

SCOTUS Vacates Ninth Circuit in Spokeo, Remands for New “Concreteness” Inquiry

The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week.  In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.

A Brief Recap

Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”  In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth. 

The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”  

The Majority Opinion

You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it.  Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing.  The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately).  The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.

Continue reading

May 18, 2016 in Class Actions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 17, 2016

SCOTUS Decision on Arising Under Jurisdiction in Merrill Lynch Case

Yesterday, the Supreme Court issued a unanimous decision in Merrill Lynch, Pierce, Fenner & Smith v. Manning.   Justice Kagan wrote the opinion, with Justices Thomas (joined by Justice Sotomayor) concurred in the judgment and wrote separately.  The Court held that the plaintiffs' state law causes of action did not "arise under" § 27 of the Securities Exchange Act, a statute that the Court held has the same "arising under" meaning as 28 U.S.C. § 1331.

Ronald Mann has a thorough opinion analysis over at Scotusblog.

Congrats to civ pro prawf Brendan Maher (UConn) whose firm, Stris & Maher represented the plaintiff (respondents) before the Supreme Court.  You can read their merits brief here.

May 17, 2016 | Permalink | Comments (0)

Monday, May 16, 2016

Senate Judiciary Committee to Consider Nominations of Ten Federal Judges This Week

The Senate Judiciary Committee will hold hearings on Wednesday, May 18,  2016, at 10:00 a.m., on the nominations of:

Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit

Paul Lewis Abrams, to be United States District Judge for the Central District of California

Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana

Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana

Winfield D. Ong, to be United States District Judge for the Southern District of Indiana

 

On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:

Ronald G. Russell, to be United States District Judge for the District of Utah

Inga S. Bernstein, to be United States District Judge for the District of Massachusetts

Stephanie A. Gallagher, to be United States District Judge for the District of Maryland

Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma

Scott L. Palk, to be United States District Judge for the Western District of Oklahoma

May 16, 2016 in Current Affairs, Federal Courts | Permalink | Comments (0)

Monday, May 2, 2016

CFP: AALS Section on Civil Procedure

AALS Section on Civil Procedure Call for Papers – 2017 AALS Annual Meeting

The AALS Section on Civil Procedure invites papers for its program on “The Roberts Court and the Federal Rules of Civil Procedure” at the AALS Annual Meeting, on January 3-7, 2017 in San Francisco. The selected paper will be presented on Thursday, January 5, and the panel will be held from 8.30AM to 10.15AM.

TOPIC DESCRIPTION:

This panel discussion will address jurisprudential developments related to the Federal Rules of Civil Procedure under the Roberts Court. The topics will include judicial interpretation of the rules, recurrent doctrinal themes within the rules, recent and proposed amendments to the rules, and the rule making process.

ELIGIBILITY:

Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

PAPER SUBMISSION PROCEDURE:

One paper will be selected for presentation at the AALS annual meeting. There is no formal requirement as to the form or length of proposals. However, more complete drafts will be given priority over abstracts, and the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.

The paper will be selected by the Section’s Executive Committee. Please submit only anonymous papers by redacting from the submission the author’s name and any references to the identity of the author. The title of the email submission should read: “Submission – 2017 AALS Section on Civil Procedure.”

DEADLINE:

Please email submissions to the Section Chair Simona Grossi, Professor of Law at: simona.grossi@lls.edu on or before August 19, 2016.

May 2, 2016 in Conferences/Symposia | Permalink | Comments (0)

Thursday, April 21, 2016

Second Annual Civil Procedure Workshop: Seattle, Washington (July 14-15)

If you’re planning to attend the Second Annual Civil Procedure Workshop, you can register here. You’ll also find information about lodging, including a block of rooms that need to be reserved by June 14, 2016. 

Questions? Contact Liz Porter, Dave Marcus, or Brooke Coleman.

Looking forward to seeing folks in Seattle.

 

 

 

April 21, 2016 in Conferences/Symposia | Permalink | Comments (0)

Wednesday, March 30, 2016

Now on JOTWELL: Thomas on Coleman on Efficiency

Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).

 

 

March 30, 2016 in Federal Rules of Civil Procedure, Recent Scholarship, Weblogs | Permalink | Comments (1)

Tuesday, March 29, 2016

The Rise and Fall of Plausibility Pleading?

My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.

Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.

 

 

March 29, 2016 in Adam Steinman, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Friday, March 25, 2016

SCOTUS Decision in Tyson Foods v. Bouaphakeo: Another Important Case on Class Actions

This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).

Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.

First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).

Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:

In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).

The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.

For additional coverage, check out:

 

March 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, March 21, 2016

Morley on De Facto Class Actions

Michael Morley (Barry) has posted De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases to SSRN.

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation.

Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction.

This Article presents a new framework for determining the proper scope of injunctive relief in election law, voting rights, and other constitutional cases. First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented Injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

This Article further contends that, when plaintiffs file a non-class case seeking to enjoin a legal provision, the court should determine at the outset whether a Plaintiff- or Defendant-Oriented Injunction would be necessary if the plaintiffs prevail. If a Defendant-Oriented Injunction would be required, the court should order that the case proceed as a Rule 23(b)(2) class action so that all right holders who stand to benefit from a favorable ruling are included as class members. Conducting such an analysis at the outset of the case eliminates most of the concerns implicated by Defendant-Oriented Injunctions.

March 21, 2016 | Permalink | Comments (0)

Judge Merrick Garland was "a repeat moderator for Federalist Society events"

If you have been gnashing your teeth over Senate Republicans' stated refusal to vote on the nomination of Judge Merrick Garland to the Supreme Court, here is some information that may make you feel a little better.

 

  • I cannot discover if Judge Garland actually is or has been a member of the conservative Federalist Society, but he has numerous links to the Society:
    • He listed in the "Experts" link of the website of the Federalist Society.  (It should be noted that the website states that a person’s listing on the Experts page does not imply any “endorsement or relationship between the person and the Federalist Society.”) 
    • Judge Garland moderated a panel called "Changing the Federal Rules of Civil Procedure: Has the Time Come?" on Dec. 9, 2010 hosted by the Federalist Society at the National Press Club in Washington, D.C.  One of the panelists argued that discovery costs should routinely be shifted to the party requesting the discovery (something that defense interests have lobbied for ever since, with partial success in the amendment to Rule 26(c)(1)(B)).  Another panelist argued that Rule 4(b), allowing a subpoena to issue against a defendant without a preliminary hearing, is unconstitutional.  A third panelist described Twombly and Iqbal as “perfectly sensible cases.”  Of course, merely by moderating the panel, Judge Garland cannot be understood to be endorsing any of these views.   
    • By my count, Judge Garland has also moderated about ten other panels hosted by The Federalist Society. See, e.g., here and here.  In fact, at the panel on the FRCP described above, the person who introduced Judge Garland as the moderator said to him, “You are a repeat moderator for Federalist Society events.”

President Obama’s political calculation in nominating Judge Garland may be even shrewder than anyone’s given him credit for. 

 

March 21, 2016 in Current Affairs | Permalink | Comments (1)

Friday, March 18, 2016

Lammon on Appellate Jurisdiction

Bryan Lammon (Toledo) has posted Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Discretion in Appellate Jurisdiction to SSRN.

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.

The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

 

March 18, 2016 in Recent Scholarship | Permalink | Comments (0)

Seiner on Class Actions in the Technology Sector

Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:

In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.

The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.

Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.

 

March 18, 2016 in Class Actions, Recent Scholarship, Web/Tech | Permalink | Comments (0)

Thursday, March 17, 2016

SCOTUS Decision on Diversity Jurisdiction: Americold Realty Trust v. ConAgra Foods

There’s a lot of attention right now on President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. But I wanted to quickly flag last week’s unanimous decision on diversity jurisdiction. Justice Sotomayor’s opinion in Americold Realty Trust v. ConAgra Foods, Inc. begins:

This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.

The Court reaffirmed the “oft-repeated rule” that unincorporated entities take on the citizenship of all of their members (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990)), and held that the “members” of this sort of Maryland-law entity included all of its shareholders:

In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which property is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders.

Justice Sotomayor concluded by recognizing—but rejecting—the argument that the citizenship of an unincorporated entity should be determined the same way as a corporation:

We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule.

 

March 17, 2016 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

The Donald Trump Final Exam Generator

People clearly have very strong feelings about Donald Trump and his candidacy for President.  His supporters like that he tells it how it is, and his detractors like that he is exposing the Republican Party for what it really is.

But, really.  Both sides are missing a yuge upside to The Donald's campaign:  This guy is generating law school final exam fact patterns like nobody's business.

Teach contracts?  Maybe you want to test whether a court would enforce a promise to pay the legal fees of a rally attendee who roughs up a protester.  Or maybe you just want a good old-fashioned fraud question.

Teach federal courts? Maybe you want to test whether the Secret Service can be sued for assaulting a journalist at a Trump rally.

Teach con law?  Maybe you want to test the free speech rights of protesters vs. rally attendees.  

Teach crim law? Maybe you want to test whether Trump could go to jail for inciting a riot.  Bonus con law!

Teach property?  It's all takings, all the time.

But maybe you don't want an exam full of issue spotters.  No problem:  I have some nice policy issues for you:

Teach civ pro?  Discuss Donald Trump's claim that he doesn't settle lawsuits because he always wins in court.

Teach torts?  Discuss Donald Trump's plan to sue everyone for libel.  All the time.  More bonus con law!

Yes, The Donald pretty much has the whole first year covered.  He's practically teaching across the curriculum.

I haven't even started in the bonanza that he's given us for some upper level courses, like the obvious Election Law, Immigration Law, and International Trade issues.  Perhaps that will have to be for another post...

March 17, 2016 | Permalink | Comments (0)

Wednesday, March 2, 2016

Grossi on The Claim Prism

Simona Grossi (Loyola Los Angeles) has posted The Claim Prism to SSRN.

 

The years 1848 and 1938 were landmark years in the history of American procedural law. The first marked the advent of code pleading, and the second introduced the Federal Rules of Civil Procedure. Both developments were a product of reform movements that addressed what the reformers believed to be a procedural crisis generated by the inefficacy of the procedural system under attack. The goal was to create a system of procedure that was both efficient and instrumental to the vindication of substantive rights. In part, each crisis reflected a tension between formalism—the need for rules—and pragmatism—the need for flexibility. Hence, the early codes offered a code-based system that was structured but significantly less so than the common law system it replaced. The Federal Rules aimed to do the same in response to the codes. The difficulty facing both sets of reformers was that their respective tasks of reform required the imposition of rules and at the same time required a pragmatic but principled approach to applying those rules. It seems though that a rule-based system eventually drifts toward the rules and away from pragmatism. Thus, at some point the rules of code pleading came to dominate the instrumental goals of that system. The same appears to be happening with the law of federal courts, including both the Federal Rules and doctrinal procedural law beyond those rules. I believe we are now in the midst of a procedural crisis, but it is not one that requires a new set of rules. Rather it is one that requires a readjustment of the way we think about the current rules and doctrines. This article invites a rethinking of the law of federal courts, including both the rules and the doctrines. It invites a return to the principles that originally animated the Federal Rules, and to the idea of natural lawyering and judging that inspired Charles Clark. The article builds upon the idea of a convenient litigation unit as central to the dispute resolution mission of federal courts, that is, saying what the law is, adhering to the rule of law, and enforcing the checks and balances of our constitutional system.

March 2, 2016 | Permalink | Comments (0)

Tuesday, February 23, 2016

Dodson on Opt-In Class Actions

Scott Dodson (Hastings) has posted An Opt-In Option for Class Actions

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes over broad and ill-defined classes; these critics favor an opt-in model. This bimodal debate — opt out vs. opt in — has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? This article explores such an opt-in option. It considers the effects of opt-in classes’ enhanced cohesiveness and representational character on the ease of class certification, the logistical challenges of opt-in mechanisms and the technological advances that can mitigate those challenges, the doctrinal feasibility of allowing an opt-in option, and the potential pitfalls the option presents. The article concludes that the opt-in option has positive potential, and it offers specific proposals for rule makers to consider.

 

 

February 23, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, February 22, 2016

House to Consider "Fraudulent Joinder Prevention Act" This Week

The House of Representatives is to consider the so-called Fraudulent Joinder Prevention Act of 2016, H.R. 3624. this week.  The bill provides:

Section 1447 of title 28, United States Code, is amended by adding at the end the following:

(f) Fraudulent joinder
(1) This subsection shall apply to any case in which—
(A) a civil action is removed solely on the basis of the jurisdiction conferred by section 1332(a);
(B) a motion to remand is made on the ground that—
(i) one or more defendants are citizens of the same State as one or more plaintiffs; or
(ii) one or more defendants properly joined and served are citizens of the State in which the action was brought; and
(C) the motion is opposed on the ground that the joinder of the defendant or defendants described in subparagraph (B) is fraudulent.
(2) The joinder of the defendant or defendants described in paragraph (1) (B) is fraudulent if the court finds that—
(A) there is actual fraud in the pleading of jurisdictional facts;
(B) based on the complaint and the materials submitted under paragraph (3), it is not plausible to conclude that applicable State law would impose liability on each defendant described in paragraph (1)(B);
(C) State or Federal law clearly bars all claims in the complaint against all defendants described in paragraph (1)(B); or
(D) objective evidence clearly demonstrates that there is no good faith intention to prosecute the action against all defendants described in paragraph (1)(B) or to seek a joint judgment.
(3) In determining whether to grant or deny a motion under paragraph (1)(B), the court may permit the pleadings to be amended, and shall consider the pleadings, affidavits, and other evidence submitted by the parties.
(4) If the court finds fraudulent joinder under paragraph (2), it shall dismiss without prejudice the claims against the defendant or defendants found to have been fraudulently joined and shall deny the motion described in paragraph (1)(B).

 

 

February 22, 2016 in Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, February 19, 2016

Nash on Summary Judgment's Standard of Review

Jonathan Remy Nash (Emory) has posted Unearthing Summary Judgment's Concealed Standard of Review to SSRN.

The common wisdom has it that the appellate standard of review for summary judgment is uniformly de novo. However, the general unreviewability of summary judgment denials renders as dicta most statements about the standard of review for summary judgment denials. This Paper argues that courts of appeals should accord district courts discretion to deny summary judgment in (i) close cases that (ii) turn at least in part on an issue of fact (at least where a jury trial right is available and has been exercised). This standard will have the greatest impact in the limited universe of summary judgment denials that are immediately appealable — those cases where summary judgment is sought by government officials on the basis of immunity from suit. An empirical study of such cases decided by the courts of appeals confirms that the proposed standard would have a substantial effect on the treatment by courts of appeals of summary judgment denials in qualified immunity cases. Beyond the courts of appeals, implementation of the standard would have an effect on the treatment of qualified-immunity-based summary judgment motions by district courts and the Supreme Court.

 

 

February 19, 2016 | Permalink | Comments (0)