Tuesday, April 25, 2017
Monday, April 24, 2017
Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).
Today the U.S. Supreme Court denied certiorari in Salazar-Limon v. City of Houston. Unlike most cert denials, this one prompted written opinions—one dissenting and one concurring. Justice Sotomayor, joined by Justice Ginsburg, authored a dissenting opinion, which begins:
Just after midnight on October 29, 2010, a Houston police officer shot petitioner Ricardo Salazar-Limon in the back. Salazar-Limon claims the officer shot him as he tried to walk away from a confrontation with the officer on an overpass. The officer, by contrast, claims that Salazar-Limon turned toward him and reached for his waistband—as if for a gun—before the officer fired a shot. The question whether the officer used excessive force in shooting Salazar-Limon thus turns in large part on which man is telling the truth. Our legal system entrusts this decision to a jury sitting as finder of fact, not a judge reviewing a paper record.
The courts below thought otherwise. The District Court credited the officer’s version of events and granted summary judgment to respondents—the officer and the city. 97 F. Supp. 3d 898 (SD Tex. 2015). The Fifth Circuit affirmed. 826 F. 3d 272 (2016). But summary judgment is appropriate only where “there is no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The courts below failed to heed that mandate. Three Terms ago, we summarily reversed the Fifth Circuit in a case “reflect[ing] a clear misapprehension of summary judgment standards.” Tolan v. Cotton, 572 U. S. ___, ___ (2014) (per curiam) (slip op., at 10). This case reflects the same fundamental error. I respectfully dissent from the Court’s failure to grant certiorari and reverse.
Justice Alito authored an opinion concurring in the cert denial. An excerpt:
The dissent acknowledges that summary judgment would be proper if the record compelled the conclusion that Salazar-Limon reached for his waist, but the dissent believes that, if the case had gone to trial, a jury could have reasonably inferred that Salazar-Limon did not reach for his waist—even if Salazar-Limon never testified to that fact. The dissent’s conclusion is surely debatable. But in any event, this Court does not typically grant a petition for a writ of certiorari to review a factual question of this sort, see this Court’s Rule 10, and I therefore concur in the denial of review here.
Tuesday, April 18, 2017
Today the Supreme Court issued a unanimous decision in Goodyear Tire & Rubber Co. v. Haeger. Justice Kagan’s opinion begins:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Gorsuch took no part in the decision.
Monday, April 17, 2017
Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:
- Perry v. Merit Systems Protection Board (earlier coverage here)
- Town of Chester v. Laroe Estates (earlier coverage here)
- California Public Employees Retirement System v. ANZ Securities (earlier coverage here)
Thursday, April 13, 2017
Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.
Wednesday, April 12, 2017
Teddy Rave has posted on SSRN his article, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). Here’s the abstract:
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties — the defendant and the lead lawyers for the plaintiffs — at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
Friday, April 7, 2017
After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues.
Monday, April 17:
- Perry v. Merit Systems Protection Board
- Town of Chester v. Laroe Estates
- California Public Employees Retirement System v. ANZ Securities
Tuesday, April 25:
Russell Gold has posted on SSRN his article, “Clientless” Lawyers, 92 Wash. L. Rev. 87 (2017). Here’s the abstract:
Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make — and indeed that legal ethics rules would expressly require clients to make in other contexts — such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.
More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.
Thursday, April 6, 2017
Wednesday, April 5, 2017
Call for Papers: Fifth Annual Workshop for Corporate & Securities Litigation (UCLA Law School, Oct. 20-21, 2017)
Below is the call for papers for the Fifth Annual Workshop for Corporate & Securities Litigation, which will be held at UCLA School of Law on October 20-21, 2017. The deadline for submitting papers or abstracts is May 26.
Tuesday, April 4, 2017
Yesterday the Supreme Court issued its decision in McLean Co. v. EEOC, which begins:
Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute authorizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion.
That first paragraph pretty much says it all, but Justice Sotomayor’s decision also contains a nice summary of the Court’s general approach for identifying the proper standard of review where the relevant statutes do not provide one.
Monday, April 3, 2017
This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Sunday, April 2, 2017
Newly published: Stephen N. Subrin and Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (Winter 2016).
From the Introduction:
Of course, the Federal Rules and their amendments could be the product of a flawed rulemaking process, fail to deliver on the promise of uniformity, and yet still be compelling content that is suitable for adoption by the states. But it turns out that proponents of replication at the state level would have to make a lot of assumptions that turn out not to be true, namely that:
- the number, the substantive mix, and the stakes of federal and state caseloads, respectively, are the same;
- the state courts have the judicial resources that federal procedure pre-supposes;
- the litigants in state courts can afford federal practice;
- the federal procedural amendments, whether by actual amendment or judicial decree, are working well for most cases;
- the drastic diminution of trials and juries in federal courts are salutary for our democracy; and
- state court procedural experimentation should be discouraged.
The Conclusion reveals the misguided nature of these assumptions. This Article will give examples of the mismatch of the federal amendments for the state court caseload.
The Conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.
Wednesday, March 29, 2017
Nora Freeman Engstrom has posted on SSRN her article, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639 (2017). Here’s the abstract:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Thursday, March 23, 2017
Tuesday, March 21, 2017
Several interesting civil procedure cases on the Supreme Court’s March 2017 oral argument calendar (more details in the links)...
Today (3/21): Microsoft v. Baker
Tomorrow (3/22): Water Splash v. Menon
Monday (3/27): TC Heartland v. Kraft Foods
Monday, March 20, 2017
The Akron Law Review is publishing a symposium issue entitled Discovery and the Impact of the December 2015 Amendments to the Federal Rules of Civil Procedure. From the announcement:
The Akron Law Review invites papers regarding the application and impact of the 2015 amendments to the Federal Rules of Civil Procedure, including articles relating to proportionality and the scope of discovery; protective orders regarding cost-shifting in discovery; sanctions for failing to preserve electronically stored information; measures to promote just, speedy, and inexpensive litigation; court application of the amended discovery rules; and the impact of the rule amendment process on rule content. This symposium issue will be published in the Akron Law Review in the 2017-2018 Academic Year.
Details in the full announcement below...
Simona Grossi has posted on SSRN a draft of her article, Procedural Due Process. Here’s the abstract:
Any democratic judicial system must be built on the principle of due process, the fountain from which all procedural rules and doctrines flourish. Understanding the scope and contours of due process is thus crucial to the development of procedural and substantive rules that could achieve the optimal results in a democratic system. Yet the scholarly articles entirely devoted to the topic are scarce to say the least, and most of the relevant monographs have not articulated a theory of due process, but largely provide an historical overview or a survey of the rights that are commonly understood as due process rights.
A theory of due process is missing and this deficiency has, in my opinion, contributed to the lack of a true understanding and, thus, truthful, real investment of the system in the principle.
An article cannot do justice to the complexities and depth of the due process principle. But there are some ideas and insights I thought I might share here, to start defining the theory of procedural due process, and prompt deeper judicial investigation and scholarship on this topic.
Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.