Friday, May 17, 2013
Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.
Meyn on Comparing Civil and Criminal Discovery
Prof. Ion Meyn (Wisconsin) has posted on SSRN a draft of his article Discovery and Darkness: The Information Deficit in Criminal Disputes, which will appear in the Brooklyn Law Review. Here’s the abstract:
Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants. The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file. This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation. Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative. This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing. This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources. Certainly, greater access to the prosecutorial file and more resources will mitigate discovery deprivations that currently plague criminal defendants. But without extending a criminal defendant the power to direct an independent and formal investigation, adequate pretrial testing cannot occur. Evaluating the investigative tools that should be extended to a criminal defendant, the Article utilizes a case study to ascertain how the application of these tools might affect a pretrial investigation. Finally, the Article surveys and responds to policy arguments against permitting the participation of criminal defendants in criminal investigations.
Thursday, May 16, 2013
Brescia and Ohanian on the Politics of Procedure
Raymond H. Brescia and Edward J. Ohanian, both of Albany Law School, have posted on SSRN their new paper, "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard."
civil procedure political? In May of 2009, the Supreme Court issued its
decision in Ashcroft v. Iqbal, which explicitly extended the
“plausibility standard,” first articulated in Bell Atlantic v. Twombly
two years earlier, to all civil pleadings. That standard requires that
pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil
Procedure, must state a plausible claim for relief. For many, these
rulings represented a sea change in civil pleading standards. Where
prior Supreme Court precedent had provided that a pleading should not be
dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim,” the new standard requires that
judges utilize their own “judicial experience and common sense” to
determine whether claimants have set forth facts sufficient to “nudge
their claims across the line from conceivable to plausible.” In the
years since their issuance, this standard has provoked many questions.
One such question, which lurks behind all otherwise neutral rules of
procedure is the following: could this apparently neutral principle of
procedure be subject to political manipulation?
After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.
The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.
Sequel to the Fifth Circuit’s Quorum Conundrum: Comer v. Murphy Oil II
Two years ago we covered the strange set of developments in Comer v. Murphy Oil USA, a class action lawsuit against a number of chemical and energy companies based on their alleged contribution to climate conditions that exacerbated the force and effect of Hurricane Katrina. The district court had dismissed the case on political question grounds, but a Fifth Circuit panel reversed — rejecting the political question argument and finding that the plaintiffs had standing. See 585 F.3d 855 (2009).
The en banc Fifth Circuit granted rehearing, although due to several recusals only nine of the sixteen Fifth Circuit judges were able to vote. Then one of those nine judges recused, thus depriving the en banc court of its quorum. However, the quorum-less en banc court chose not to revert to the Fifth Circuit panel’s decision, which would have reversed the district court’s dismissal and remanded the case for further proceedings. Rather, the quorum-less en banc court (per five of the remaining eight judges) dismissed the appeal in its entirety, thereby reinstating a district court ruling that had already been unanimously reversed by a three-judge Fifth Circuit panel. See 607 F.3d 1049 (2010).
In 2011, the plaintiffs filed a new lawsuit alleging many of the same claims. This week, a Fifth Circuit panel affirms the dismissal of that lawsuit, finding it barred by res judicata. In Comer II (No. 12-60291, May 14, 2013), the panel concludes that — despite the unusual chain of events at the Fifth Circuit two years ago — the first lawsuit satisfied all the elements of res judicata: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” [Slip Op. 7]
(Hat Tip: David Coale)
Tuesday, May 14, 2013
Strong on Commercial Arbitration
S.I. Strong (Missouri/Supreme Court Fellow) has posted two articles about international commercial arbitration to SSRN.
International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States.
Efforts have been made to place the debate about the New York Convention within the context of post-Medellin jurisprudence concerning self-executing treaties. However, that framework does not adequately address the difficult constitutional question as to what course should be adopted when a particular issue is governed by both a treaty and a statute that is meant to incorporate that treaty into domestic law.
This Article addresses that question by considering the role of and relationship between the New York Convention and the Federal Arbitration Act, and by providing a robust analysis of the constitutional, statutory and public international issues that arise in cases involving international treaties and incorporative statues. Although the discussion is rooted in the context of international commercial arbitration, the Article provides important theoretical and practical insights that are equally applicable in other types of public international law.
For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to distinguish between requests made in the context of international commercial arbitration and requests made in the context of international investment arbitration. In so doing, the Article considers issues relating to grants of jurisdiction, state interests and standard interpretive canons.
Monday, May 13, 2013
SCOTUS cert grant on the ability of in forma pauperis filers to amend their complaints under the Prison Litigation Reform Act
Whether the Sixth Circuit erred in holding—in conflict with all eleven other federal circuit courts of appeals—that the in forma pauperis statute, 28 U.S.C. § 1915(e)(2), prohibits indigent defendants from amending their complaints.
You can find a link to the decision below and the cert-stage briefing at SCOTUSblog’s casefile.
Fifth Circuit Decision on Personal Jurisdiction, McIntyre, and the Stream of Commerce
Last week, the U.S. Court of Appeals for the Fifth Circuit issued an important decision on personal jurisdiction: Ainsworth v. Moffett Engineering, Ltd., No. 12-60155 (May 9, 2013). In an opinion by Judge Patrick Higginbotham (joined by Judges Jerry Smith and Jennifer Elrod), the court reaffirms its “stream-of-commerce approach to personal jurisdiction” [Slip Op. 1] in the wake of J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). Below are some excerpts (footnotes omitted). From Slip Op. 3-4:
In cases involving a product sold or manufactured by a foreign defendant, this Circuit has consistently followed a “stream-of-commerce” approach to personal jurisdiction, under which the minimum contacts requirement is met so long as the court “finds that the defendant delivered the product into the stream of commerce with the expectation that it would be purchased by or used by consumers in the forum state.” Under that test, “mere foreseeability or awareness [is] a constitutionally sufficient basis for personal jurisdiction if the defendant’s product made its way into the forum state while still in the stream of commerce,” but “[t]he defendant’s contacts must be more than ‘random, fortuitous, or attenuated, or of the unilateral activity of another party or third person.’”
On interlocutory appeal, Moffett argues that application of the Fifth Circuit’s stream-of-commerce approach is no longer proper after the Supreme Court’s decision in McIntyre…. We disagree and find that application of the stream-of-commerce approach in this case does not run afoul of McIntyre’s narrow holding….
Tuesday, May 7, 2013
Wake Forest Seeks Civil Procedure VAP
From our friends at Wake Forest comes this announcement:
Wake Forest University School of Law welcomes applications for a Visiting Assistant Professor (VAP) to teach Civil Procedure in the 2013-2014 academic year, and perhaps beyond. Additional information is here.
Monday, May 6, 2013
New blog tracks Federal Arbitration Act cases
Professor Imre Szalai has created a new blog, www.outsourcingjustice.com, posting about recent state and federal cases involving the Federal Arbitration Act.
Singer and Young on Bench Presence
Jordan Singer (New England Law) and Judge William Young (D. Mass.) have posted two articles about bench presence to SSRN.This Article considers what it means for a federal district court to be productive, and how such productivity might be assessed. Previous studies have focused almost exclusively on the speed of case processing, equating a court’s productivity (explicitly or implicitly) with the court’s rate of docket clearance or a case’s average time from filing to disposition. This thin definition of “productivity,” however, is not consistent with either classical economic understandings of the term or common public expectations of the courts. In particular, analyzing the speed or efficiency of a court says nothing about whether the parties or the public view the adjudicative process as accurate, fair, transparent, and dignified.
We seek to bridge the disconnect between existing measures of court productivity and real-world expectations of the district courts by offering a more robust model of district court productivity that explicitly incorporates measures of accuracy and procedural fairness. We then introduce a new metric for procedural fairness called bench presence. Bench presence is a measure of the time that a district judge spends on the bench, presiding over the adjudication of issues in a public forum. Bench presence provides a rough but meaningful proxy for many components of procedural fairness, by quantitatively capturing the degree to which parties and the public are directly exposed to the judge’s practices and procedural safeguards. It also refocuses the discussion of court productivity on the core role of the district judge: presiding over trials and open hearings.
In a companion piece, the authors argued for a more comprehensive model of federal district court productivity which included, among other things, a measure of each court’s capacity and commitment to provide procedural fairness to litigants. The authors further proposed a new procedural fairness metric called bench presence, a measure of the time that district judges spend adjudicating issues in an open forum.
This article examines real-world bench presence data from the Administrative Office of the U.S. Courts. On the surface, the numbers are disappointing for those who view courtroom time as integral to procedural fairness protections. Specifically, the data reveal a decline in total courtroom hours in more than two-thirds of the federal district courts between FY2008 and FY2012, and an overall national decline in total courtroom hours of more than 8 percent during that same period.
But there is encouraging news in the data as well. Strong levels of bench presence are not restricted to courts of a particular size, circuit, or docket composition, suggesting that there are no persistent structural barriers to any district court increasing the amount of time that its judges spend in the courtroom. In addition, there is only a weak correlation between a district court’s average courtroom hours per judge and its average time to case disposition, indicating that district courts need not choose between efficiency and procedural fairness in addressing their caseloads. Based on these findings, the authors urge judges to increase courtroom hours in their own districts, and invite scholars and court administrators to further investigate the potential of the bench presence metric.
Sunday, May 5, 2013
NY Times on SCOTUS's Pro-Business Civil Procedure Decisions
Today’s New York Times features a story by Adam Liptak, Corporations Find a Friend in the Supreme Court, which discusses several of the Court’s recent decisions on civil procedure, including Comcast v. Behrend, Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, Kiobel v. Royal Dutch Petroleum, and Standard Fire Insurance v. Knowles.
Saturday, May 4, 2013
Company Cannot Assert Attorney-Client Privilege Against Its Director, Delaware Court Holds
Plaintiff is a director of the defendant Company, a Delaware corporation, and he owns an entity that was the Company's largest shareholder. The remaining directors of the Company are also defendants. The Board of Directors established a Special Committee to explore strategic alternatives for the Company. Plaintiff was a member of the Special Committee. Later, the entity owned by Plaintiff announced it would nominate candidates for election at the Company's annual meeting. The defendants then secretly "sprang into action" and 11 days later, Company counsel notified Plaintiff by email that a special Board meeting would occur the next day to approve a recapitalization in which an entity controlled by one of the defendants would emerge as the largest shareholder of the Company. At meetings of the Special Committee and the Board of Directors the next day, the recapitalization was approved over Plaintiff's negative vote. The day after that, the Company announced the recapitalization and also announced that it was postponing the annual meeting and deferring the record date. That same day, Plaintiff filed suit challenging the recapitalization and the postponement of the annual meeting and record date.
Plaintiff subpoenaed counsel to the Company and to the Special Committee for documents relating to the planning and scheduling of the special meetings and the structuring of the recapitalization. Defendants asserted the attorney-client privilege and work product protection.
The court granted Plaintiff's motion to compel, holding that until the day the Board voted to approve the recapitalization, the Company could not assert either privilege against Plaintiff, who was a director of the Company. After the Board voted to recapitalize, however, sufficient adversity existed between Plaintiff and the Company such that Plaintiff could no longer have a reasonable expectation that he was a client of the Board's counsel. Kalisman v. Friedman, 2013 Del. Ch. LEXIS 100 (Delaware Court of Chancery, April 17, 2013).
Friday, May 3, 2013
Balkin on Erie
Over at Balkinization, Prof. Jack Balkin (Yale) has a post entitled Erie Railroad v. Tompkins and the New Deal Constitution. It begins:
Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products. The video is available here. Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55. I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.
Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint. Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent. If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different. It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.
Wednesday, May 1, 2013
Ninth Circuit Requires Evidentiary Hearing on Enforceability of Forum Selection Clause
Pro se plaintiff Robin Petersen was recruited to work in Saudi Arabia as a flight instructor for a subsidiary of Boeing Corporation. His complaint alleged that on arrival in Saudi Arabia, he was forced to sign an employment agreement which he was not given time to read and which he was told he must sign or else return immediately to the U.S. at his own expense. This agreement contained a forum selection clause requiring any contractual disputes to be resolved in the Labor Courts of Saudi Arabia. Petersen then alleged a series of wrongful incidents in Saudi Arabia perpetrated by his employer. Finally returning to the U.S. after the intervention of the U.S. Consulate, he filed suit alleging breach of contract and other claims. He submitted an affidavit along with his complaint claiming that he was not financially capable of returning to Saudi Arabia to pursue the lawsuit, that he would be subject to harsh conditions there, and that the forum selection clause was foisted on him through fraud and undue pressure. He also submitted a report from the U.S. Department of State indicating that, among other things, he would not be able to obtain a fair trial in Saudi Arabia.
The district court dismissed the lawsuit without a hearing under Rule 12(b)(3), holding the forum selection clause enforceable. The district court also denied leave to amend the complaint, although plaintiff submitted additional information indicating that he would not even be eligible for a visa to Saudi Arabia.
The Ninth Circuit reversed and remanded for an evidentiary hearing. Under M/S Bremen v. Zapata Off-Shores Co. and Carnival Cruise Lines, Inc. v. Shute, a forum selection clause may be unenforceable if, for example, “the inclusion of the clause in the agreement was the product of fraud or overreaching,” or “the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced.” The court held that the complaint and other materials raised an issue of fact as to whether the forum selection clause was enforceable under Bremen, thus requiring an evidentiary hearing, and that the district court abused its discretion by denying leave to amend the complaint. Petersen v. Boeing Co.,, No. 11-18075 (9th Cir. April 26, 2013).
Tidmarsh on Lemos & Hensler on Adequate Representation in Parens Patriae Suits by State A-Gs
Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).
Tuesday, April 30, 2013
Call For Papers: First Annual Workshop for Corporate & Securities Litigation
See below for details...
The University of Illinois College of Law and the University of Richmond School of Law invite submissions for the First Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, November 8, 2013, in Chicago, Illinois.
OVERVIEW: This annual workshop will bring together scholars focused on corporate and securities litigation to present their works-in-progress. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible. Appropriate topics include, but are not limited to, securities litigation, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis.
Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Illinois College of Law in Chicago, Illinois, on Friday November 8, 2013. Local costs (lodging and workshop meals) will be covered. Participants are asked to pay for their own travel expenses.
The workshop is designed to maximize discussion and feedback. All participants will have read the selected papers. The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved.
SUBMISSION PROCEDURE: If you are interested in participating, please send an abstract of the paper you would like to present to Jessica Erickson at firstname.lastname@example.org not later than Friday, May 31, 2013. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 28.
Thursday, April 25, 2013
Happy 75th Birthday, Erie!
Seventy-five years ago today, the Supreme Court issued its decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
Wednesday, April 24, 2013
Call For Papers: Conference for Empirical Legal Studies
The Eighth Annual Conference on Empirical Legal Studies has issued a call for papers. Submissions are due July 3, 2013 and will be peer-reviewed. The conference will be held at the University of Pennsylvania Law School on October 25-26, 2013.
Tuesday, April 23, 2013
Compensating Boston Victims with a Fund
The ubiquitous Kennth Feinberg has arrived in Boston to help administer a compensation fund for the victims of the marathon bombing. The fund, One Fund Boston, was established by Boston's mayor and is supported by private donations. The NYTimes reports here.
Monday, April 22, 2013
NYLS Law Review Special Issue on Iqbal and Employment Discrimination