Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Friday, September 14, 2018
Here is a quick summary:
- H.R. 3487. This bill’s purpose is to “amend section 1332 of title 28, United States Code, to provide that the requirement for diversity of citizenship jurisdiction is met if any one party to the case is diverse in citizenship from any one adverse party in the case.”
Here is the text of the bill.
H.R. 3487 was not reported, apparently because no reporting quorum was present. (See 3:54:25 here.)
- H.R. 6730, the “Injunctive Authority Clarification Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to prohibit the issuance of national injunctions, and for other purposes.”
Here is the text of the bill.
H.R. 6730 was ordered to be reported during the hearing.
- H.R. 6754, the “CIRCUIT Act of 2018” or the “Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to modify the structure of the Court of Appeals for the Ninth Circuit, and for other purposes.”
Here is the text of the bill.
H.R. 6754 was ordered to be reported during the hearing.
- H.R. 6755, the “Judiciary Reforms, Organization and Operational Modernization Act of 2018” or the “Judiciary ROOM Act of 2018.” This bill’s purpose is to “provide for additional Article III judges, to modernize the administration of justice, and for other purposes.”
Here is the text of the bill.
H.R. 6755 was ordered to be reported during the hearing.
Friday, September 7, 2018
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Politically Powerful and Judicial Review. Fred reviews Aaron Tang’s recent article, Rethinking Political Power in Judicial Review, which is forthcoming in the California Law Review.
Thursday, September 6, 2018
Shirin Sinnar has published Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018). Here’s the abstract:
In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain trans-substantive procedures, and distorted perceptions across the civil–criminal procedure divide.
Tuesday, September 4, 2018
Aggregation — the ability to join parties or claims in a federal civil lawsuit — has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction — especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb — threatens the salutary benefits of aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. I offer a solution for preserving aggregation’s advantages in the face of the personal-jurisdiction trend: authorize a broader personal-jurisdiction scope in federal court for certain multiparty and multiclaim cases that would benefit from aggregation. I defend such a regime as constitutional and consistent with the norms of both personal jurisdiction and aggregation.
Ben Grunwald was published Strategic Publication, 92 Tul. L. Rev. 745 (2018). Here’s the abstract:
Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.
This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.
Wednesday, August 29, 2018
The Notre Dame Law Review recently published a symposium issue entitled Federal Courts, Practice & Procedure: The Future of Qualified Immunity, which includes pieces by Sam Bray, Joanna Schwartz, Aaron Nielson & Chris Walker, Karen Blum, Alan Chen, Jack Preis, Scott Michelman, David Shapiro & Charles Hogle, Alex Reinert, and Fred Smith.
Tuesday, August 28, 2018
Below is the announcement for the William P. Butterfield Award for Excellence in eDiscovery Writing:
The Sedona Conference and Hausfeld, LLP are sponsoring the William P. Butterfield Award for Excellence in eDiscovery Writing. The Award will be presented annually to the winner of a writing competition held to recognize and incentivize innovative legal thinking and technical solutions that advance the field of eDiscovery and promote cooperation, collaboration and efficiency in eDiscovery. The winner of the competition will be recognized in a news release announcing the Award, receive a $10,000 cash award from Hausfeld LLP and, at the option of the winner and The Sedona Conference, have his or her winning paper published in The Sedona Conference Journal.
For more information about the Award and details about how to enter the writing competition, please see https://www.hausfeld.com/williampbutterfieldaward.
The 2018 deadline for submissions is October 1, 2018. The winner will be announced before 2018 year's end. For 2019 and the years following, the submission deadline will be March 1 of each year, with the winner to be announced on or before May 1 of each year.
Monday, August 27, 2018
Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
Friday, August 24, 2018
Cathie Struve has published The Federal Rules of Inmate Appeals, 50 Ariz. St. L.J. 247 (2018). Here’s the abstract:
The Federal Rules of Appellate Procedure turn fifty in 2018. During the rules' half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past fifty years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals. In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities—and underscores the salience of local court practices and institutional partnerships.
Wednesday, August 22, 2018
Friday, August 17, 2018
Deadline: October 10, 2018
Event Date: February 7-9, 2019
Location: Brigham Young University, Provo, UT
Organization: Brigham Young University
Contact: James Heilpern, firstname.lastname@example.org
BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.
The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at email@example.com.
Thursday, August 16, 2018
This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”
You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.
The period to submit written comments on the proposed amendments runs until February 15, 2019.
You can find more information about submitting written comments and presenting testimony at public hearings here.
Tuesday, August 14, 2018
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Why Military Justice Doesn’t Get Enough Academic Attention. Steve reviews Rodrigo Caruço’s recent article, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016).
Friday, August 10, 2018
Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).
Here's the tweet effecting service:
Here's the court's order (from earlier this week) authorizing service via Twitter:
Here's the plaintiff's motion:
Wednesday, August 8, 2018
Yesterday the Ninth Circuit issued its decision in Rodriguez v. Swartz. It’s a particularly interesting case in light of the Supreme Court’s recent decisions in Ziglar v. Abbasi and Hernandez v. Mesa.
By a 2-1 vote, the panel affirmed the district court’s refusal to dismiss a claim against a U.S. Border Patrol agent who, while standing on American soil, shot and killed a teenage Mexican citizen who was walking down a street in Mexico. (In the interest of full disclosure, I joined an amicus brief on behalf of law professors in support of the plaintiff-appellee.)
Judge Andrew Kleinfeld’s majority opinion concludes:
Under the particular set of facts alleged in this case, Swartz is not entitled to qualified immunity. The Fourth Amendment applies here. No reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. And despite our reluctance to extend Bivens, we do so here: no other adequate remedy is available, there is no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either do not apply or counsel in favor of extending Bivens.
Of course, the facts as pleaded may turn out to be unsupported. When all of the facts have been exposed, the shooting may turn out to have been excusable or justified. There is and can be no general rule against the use of deadly force by Border Patrol agents. But in the procedural context of this case, we must take the facts as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case.
Judge Milan Smith dissented, arguing that no Bivens action was available.
Tuesday, August 7, 2018
Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:
By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.
Here's an announcement for a program that will be co-sponsored by the AALS Section on Civil Procedure at the 2019 AALS Annual Meeting:
AALS 2019 Program Summary: “Court Debt”: Fines, Fees, and Bail, Circa 2020
This symposium, co-sponsored by the Sections on Civil Procedure, Tax, Bankruptcy, and Criminal Justice, examines how courts are financed and the growing reliance on user fees, whether for filing or defending civil cases; charges imposed on criminal defendants such as “registration fees” for “free” lawyers; the imposition of both civil and criminal “fines”; and the use of money bail. We explore whether and how constitutional democracies can meet their obligations to make justice accessible, both to participants and to the public, in light of the numbers seeking help from courts, high arrest and detention rates, declining government budgets, and shifting ideologies about the utility and desirability of accessible courts. These topics have prompted the creation of national and state task forces; litigation (including challenges to detention of individuals eligible for release but lacking funds to secure bail bonds, and the automatic losses of drivers’ licenses for nonpayment of fines); and a mix of economic, political, and legal analyses probing the effects of “court debt.”
Session one: Understanding the dimensions and the Legal Critiques
Moderator/introduction: Judith Resnik, Yale Law School
Brandon Buskey, Staff Attorney, ACLU Criminal Law Reform Project, NYC
Abbye Atkinson, Berkeley
Beth Colgan, UCLA
Crystal Yang, Harvard Law School
Cortney Lollar, Kentucky
Lisa Foster and Johanna Weiss, co-directors of the Fines and Fees Justice Center
Session two: Remedies: from Bankruptcy to Abolition and from Courts to Legislatures
Introduction/moderator David Marcus, UCLA
Pamela Foohey, Indiana University Maurer School of Law
Alex Karakatsanis, Founder and Executive Director, Civil Justice Corps
Jeff Selbin, Berkeley
Gloria Gong, Director of Research and Innovation, Government Performance Lab, Harvard Kennedy School
Maureen O’Connor, Supreme Court Ohio and Chair of the National Center for State Courts on Task Force on Fines and Fees
For those interested in reading cases and commentary in advance, a 2018 volume, Who Pays? Fines, Fees, Bail, and The Costs of Courts, is available at https://law.yale.edu/system/files/area/center/liman/document/liman_colloquium_book_04.20.18.pdf. Many other articles are available and, in advance of the symposium, we plan to provide a bibliography with additional readings. An edited set of essays will be published after the symposium in the North Carolina Law Review.
Monday, August 6, 2018
Andy Hessick has published Consenting to Adjudication Outside the Article III Courts, 71 Vand. L. Rev. 715 (2018). Here’s the abstract:
Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.
Tuesday, July 31, 2018
Suzette Malveaux has published The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 U. Kan. L. Rev. 325 (2017). Here’s the abstract:
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.
First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.
Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.
Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.