Monday, August 24, 2015
Conference: Magistrate Judges and the Transformation of the Federal Judiciary (Las Vegas, 9/25-9/26)
Here is the announcement:
The UNLV School of Law and the Duke School of Law are hosting a conference Magistrate Judges and the Transformation of the Federal Judiciary on September 25-26 in Las Vegas, NV. This conference may be the first effort to explore the critically important institution of magistrate judges from interdisciplinary, empirical, theoretical, and practical perspectives. This conference features political scientists, legal academics, statisticians, magistrate judges, district court judges, appellate court judges, and officers from the Administrative Office of U.S. Courts. Although the federal administration of justice is the subject of much academic study, the vital system of magistrate judges is often overlooked. Unlike many traditional academic conferences, this conference prioritizes participation by judges: multiple judges are featured on every panel, and every panel will elicit audience (especially judicial) participation in the form of comments and questions.
Academic participants include Christina Boyd (Georgia—Political Science), Tracey George (Vanderbilt), Mitu Gulati (Duke), Nancy King (Vanderbilt), Jack Knight (Duke), David Levi (Duke), Nancy Welsh,(Penn St) and Albert Yoon (Toronto). From UNLV, Dan Hamilton, Ann McGinley, Jeff Stempel and Jean Sternlight are participating. Federal judges who are panelists include Robert Collings (MA), Valerie Cooke (NV), Candy Dale (ID), Cam Ferenbach (NV), Michael Newman (OH), James O’Hara (KS), Philip Pro (NV), Johnnie Rawlinson (NV), and Neil Wake (AZ). Doug Lee and Tom Davis from the Administrative Office of U.S. Courts are also presenting a paper.
The conference begins at noon on Friday, September 25 and ends at noon the following day. Registration information is available here. For additional information you may also contact Thomas Main, email@example.com.
Friday, August 21, 2015
Appearing in the current issue of the Journal of Empirical Legal Studies is an article by Gregory C. Sisk and Michael Heise entitled "'Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals."
The warp and woof of U.S. law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. Although the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the U.S. Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.
Wednesday, August 19, 2015
A recent Eleventh Circuit opinion is interesting on a number of levels. Glock v. Glock, Inc., No. 14-15701 (11th Cir. Aug. 17, 2015). Helga Glock, the wife of the inventor of the Glock handgun, initiated a proceeding in the United States (under 28 U.S.C. §1782) against the Glock entities to discover documents relating to her divorce proceedings back in Austria. She obtained the documents, subject to a protective order that restricted their use in other proceedings unless she obtained court leave.
About a year and a half later, Helga filed a RICO action against Mr. Glock and the Glock entities in the U.S. She sought and obtained, in the Section 1782 proceeding, the magistrate's permission to use the documents she had obtained in that proceeding in the subsequent RICO action.
The district court reversed, but the Eleventh Circuit upheld the magistrate.
First, the court held that Section 1782 did not prohibit the later use of evidence that had been lawfully obtained in a Section 1782 proceeding, including in subsequent U.S. litigation. Second, the court held that the protective order in Helga’s Section 1782 proceeding had required her to obtain court permission before using the documents in another proceeding, but that she had done that.
Monday, August 17, 2015
LAW SCHOOL TEACHING APPLICANTS SOUGHT
THE UNIVERSITY OF IOWA COLLEGE OF LAW anticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to: Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa 52242-1113.
THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.
Saturday, August 15, 2015
Two brothers, Seneca and Tari Adams, “endured vicious beatings by Chicago police officers and prolonged detentions in the Cook County Jail” in 2004. The City of Chicago admitted liability for false arrest, excessive force, race discrimination, and malicious prosecution.
The case was tried to a jury on the question of damages. The jury verdict awarded $2.4 million to Seneca (who was savagely beaten and detained in Cook County Jail for 204 days) and $1 million to Tari (who was also beaten and detained in Cook County Jail for 45 days). The district court “remitted” those amounts to $1.17 million for Seneca and $350,000 for Tari. The district court failed, however, to give them the option of a new trial instead of accepting the remittitur.
The Seventh Circuit (in an opinion by Judge Diane Wood, with Judges Ilana Rovner and Theresa Springmann on the panel) held that simply remitting the damages award without offering plaintiffs the option of a new trial was error. Rather than remand back to the district court to allow plaintiffs that choice, however, the Court proceeded to consider whether the district court had abused its discretion in ordering the remittitur in the first place, and held that it had.
Reviewing the outrageous facts, and comparing similar excessive force cases, the Court held that the jury’s verdict was “well within the universe of excessive force and malicious prosecution verdicts.” The case was remanded so that the jury’s verdict could be reinstated.
(In passing, the Court mentioned Professor Suja Thomas’ article, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L.J. 731 (2003). The Court did not reach the argument that remittitur was unconstitutional, but ventured “that it would be bold indeed for a court of appeals to come to such a conclusion, given what the Supreme Court has said on the topic.”)
The case is Adams v. City of Chicago.
Thursday, August 13, 2015
A. Benjamin Spencer, University of Virginia School of Law, has posted on SSRN his article, "Rationalizing Cost Allocation in Discovery," forthcoming in the Review of Litigation.
A movement is afoot to revise the longstanding presumption that in civil litigation, the producing party bears the cost of production in response to discovery requests. A proposed amendment to Rule 26(c) - slated to take effect in December 2015 - makes explicit the authority of courts to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next - an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated - on constitutional and policy grounds - by pro-business interest groups and advocates before the Advisory Committee on Civil Rules in letters urging them to place this issue on its agenda.
Given indications that the Advisory Committee will indeed take up the issue of cost shifting in the context of civil discovery, now is an apt time to evaluate the producer-pays rule and the claims of those urging its demise. Specifically, to what extent is the producer-pays rule imposing costs on parties in litigation; are there fairness, policy, or constitutional considerations that warrant a revisiting of the rule; and, ultimately, what would a rational approach to discovery cost allocation look like? This article explores the current landscape of discovery expenses in the federal system and the rules governing their allocation, explores the various purported difficulties with a producer-pays approach, and then builds on these discussions to imagine a rational approach to discovery cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.
Tuesday, August 11, 2015
The Center for Judicial Studies of Duke Law School has issued a draft of “Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.” The Center has asked for public comments on the draft by August 21, 2015.
The Center's website states: “The Center for Judicial Studies holds annual bench-bar-academy conferences that identify serious problems in the law, and effect real improvements in laws, rules, and regulations. The conferences bring together prominent bench leaders, government officials, senior-level lawyers, technical experts, and academics to address emerging legal issues and develop consensus positions that will guide government policy-makers and decision-makers by means of best practices or guidelines.”
The Guidelines on Proportionality result from this process. Of course, the Guidelines do not have the force of law. The authors (who are unnamed on the draft) appear to be emulating the method of The Sedona Conference.
Barring action by Congress, the pending amendments to the FRCP will become effective on December 1, 2015.
Financial sponsors of Duke Law School's Center for Judicial Studies in 2014 included Bank of America, ExxonMobil, GE’s Power and Water, Home Depot, King & Spalding, Kirkland & Ellis, Lieff, Cabraser, Heimann & Bernstein, Merck & Co., Monsanto, Pfizer, Inc., Skadden, Arps, Slate, Meagher & Flom, and State Farm Insurance Company.
Comments on the Guidelines should be sent to the Director of the Center, John Rabiej, firstname.lastname@example.org.
Hat tip: Valerie Nannery.
Brooke Coleman, Seattle University School of Law, has posted on SSRN her recent paper, "The Efficiency Norm," forthcoming in Boston College Law Review.
Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that the efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led them to profoundly shift key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis — one that weighs both the benefits and costs of making litigation cheaper — these now-dominant civil litigation presumptions are dangerous and unwarranted because, among other things, they further de-democratize civil litigation. Finally, the Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.
Monday, July 27, 2015
This month’s essay on the Courts Law section of JOTWELL is Rationing Constitutional Justice by Marin Levy. Marin reviews Aziz Huq’s recent article, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. (forthcoming 2015).
Thursday, July 16, 2015
The Yale Law Journal has published a note by student Geoffrey C. Shaw on Class Ascertainability. It may be of interest given the Civil Rules Advisory Committee's recent report to the Standing Committee that "ascertainability" perhaps should be added to the list of class action topics currently being studied by the Rule 23 Subcommittee.
The May 2, 2015 Advisory Committee Report (available at p. 178 of the Standing Committee's Agenda Book for its May 2015 meeting) states:
Recently there has been much concern about what must be shown to demonstrate that a proposed class is “ascertainable,” largely resulting from Third Circuit decisions. This concern seems to be limited to Rule 23(b)(3) class actions. See Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2014) (ascertainability is not required in a class action seeking only injunctive relief). And the Third Circuit treatment of the issue may be evolving. See, e.g., Byrd v. Aaron’s Inc., ___ F.3d ___, 2015 WL 3887938 (3d Cir., April 16, 2015), in which the panel stated that “it is necessary to address the scope and source of the ascertainability requirement that our cases have articulated” and added that “[w]e seek here to dispel any confusion.” (Judge Rendell, concurring in reversal of the district court’s denial of certification, suggested that “it is time to retreat from our heightened ascertainability requirement in favor of following the historical meaning of ascertainability under Rule 23.”)
The Subcommittee intends to examine this issue; it is not certain at present whether a rule change might be indicated.
The abstract for the Note in the Yale Law Journal on Class Ascertainability is:
ABSTRACT. In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.
This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.
Wednesday, July 15, 2015
Howard Wasserman has posted on SSRN his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.
This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.
Tuesday, July 14, 2015
From The Legal Intelligencer (by Gina Passarella, July 14, 2015):
Women comprise a disproportionately low percentage of lead trial counsel compared to their representation in the overall legal profession, a study for the American Bar Association's Commission on Women in the Profession has found.
While women make up at least 36 percent of the profession, according to the study, they comprise 24 percent of first-chair roles in civil cases. And those numbers are lower when looking at tort cases or the representation of businesses and individuals. Women are more highly represented in lead counsel roles on behalf of government entities or by working as prosecutors, the study found.
The study was performed by former commission chair Roberta Liebenberg of Fine, Kaplan and Black in Philadelphia and current commissioner Stephanie Scharf of Scharf Banks Marmor in Chicago. The two litigators based their survey on data from case filings in 2013 in the U.S. District Court for the Northern District of Illinois in an effort to capture a large district with a diverse caseload.
For more, click here.
Stephen B. Burbank and Sean Farhang have posted on SSRN their article, Class Actions and the Counterrevolution Against Federal Litigation.
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.
Tuesday, July 7, 2015
AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015(date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (email@example.com). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.
Wednesday, July 1, 2015
In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”
According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.
Monday, June 29, 2015
(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and
(2) Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Max Raskin, an NYU law student, has posted on SSRN his article Realm of the Coin: Bitcoin and Civil Procedure, published in 20 Fordham J. of Corporate & Financial Law, No. 4 (2015).
Bitcoin is a private currency issued and governed by a global network of computers. Thus far, the majority of legal cases involving bitcoin have been criminal prosecutions or disputes between bitcoin companies. If bitcoin or some iteration continues to grow, courts will need to craft rules of civil jurisdiction. This paper is the first attempt to apply existing rules of civil procedure to bitcoin.
Bitcoins ought be treated as tangible property for the purposes of jurisdiction. Although they have an incorporeal form, as a practical matter, courts are able to site bitcoins to a single location and thus should do so. This allows courts to apply existing due process and comity jurisprudence.
Saturday, June 27, 2015
By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).
According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.
So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.
Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson.
The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.
Wednesday, June 24, 2015
Under this Act, to obtain class certification, class action plaintiffs "seeking monetary relief for personal injury or economic loss" will have to "affirmatively demonstrate that each proposed class member suffered the same type and scope of injury as the named class representative."
Amendments offered by Democrats all failed. These failed amendments were to: except Title VII claims; except antitrust claims; strike the words "and scope"; strike the words "or economic loss"; require Judicial Conference approval of the changes; and require the Administrative Office of the US Courts to assess the effect of the bill on litigants and courts.
Tuesday, June 23, 2015
Forthcoming in the University of Cincinnati Law Review is my article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees.
In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, the pending amendments to the Federal Rules of Civil Procedure hurt David and help Goliath more than any previous round of amendments. The amendments represent corporate defendants' victory in the thirty-year war to limit the scope of discovery by enshrining "proportionality" as part of the definition of, rather than a limitation on, the scope of discovery. The amendments will also make it more difficult for plaintiffs to obtain an adverse inference jury instruction or other sanctions for a defendant’s intentional loss of electronic evidence. For no good reason, the amendments will reduce the length of time within which plaintiffs must effectuate service of process, thereby gifting defendants with a corresponding reduction in the statute of limitations. In addition, the amendments wipe out thirty-six official forms, on the thin excuse that the Advisory Committee wants to "get out of the forms business"; in fact, many interpret the move as a tacit agreement with the heightened pleading standard imposed on plaintiffs by the Supreme Court in Twombly and Iqbal.
The amendments' mostly anti-plaintiff effect is evidenced by a stark split in the public reaction, with plaintiffs’ lawyers almost unanimously against most of the amendments and defendants’ lawyers almost unanimously in favor. But the Advisory Committee was astoundingly indifferent to the polarized public reaction to the proposed amendments. One Advisory Committee member dismissed the stories told at the public hearings by plaintiffs' lawyers about their need for discovery as "Queen-For-A-Day issues," a reference to a 50-year-old daytime television show in which women tearfully told their real-life sob stories to vie for prizes.
Remarkably, in evaluating the need for these amendments, the Committee did not rely on very much case law, any government caseload statistics, or any of the ninety-four district court reports on “cost and delay” mandated by the Civil Justice Reform Act of 1990. Instead, the Committee commissioned a mound of so-called “empirical studies” which consisted mostly of flawed opinion surveys of self-selected attorneys. The one methodologically sound study, conducted by the Federal Judicial Center, found that discovery worked well and at modest cost in most federal cases. The Committee either ignored or mischaracterized the FJC’s study.
Given the makeup of the Advisory Committee and the Standing Committee, none of this is surprising. The members of both committees are all appointed by Chief Justice John Roberts, and except for a few tokens, they are ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, and/or experientially predisposed to think like corporate defense lawyers. There is no explicit constitutional, statutory, or rules authority for the Chief Justice’s unbridled appointment power. The Article concludes by forecasting the passage of a default “requester pays discovery costs” rule that is sought by defense interests, unless the mechanism for appointment of federal rules committee members is changed.