Tuesday, January 24, 2017

Mullenix on Stancil on Economic Theory, Equality & Procedural Justice

Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Infusing Civil Rulemaking with Economic Theory. Linda reviews Paul Stancil’s recent article, Substantive Equality and Procedural Justice, which is forthcoming in the Iowa Law Review.

 

 

 

 

January 24, 2017 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Friday, January 20, 2017

Bruhl on Article III Standing and the One Plaintiff Rule

Aaron Bruhl has posted on SSRN a draft of his article, One Good Plaintiff is Not Enough. Here’s the abstract:

This Article concerns an aspect of Article III standing that has figured in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to assume that all plaintiffs have standing as long as one plaintiff has it and then decide the merits either for or against all plaintiffs despite doubts as to the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”

This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if all of them present similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains why the one-plaintiff rule is harmful as a practical matter, namely because it assigns concrete benefits and detriments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could attain such widespread acceptance despite the importance usually attributed to respecting Article III’s limits on judicial power. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.

 

 

 

 

January 20, 2017 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, January 19, 2017

SCOTUS Cert Grant on Personal Jurisdiction: Bristol-Myers Squibb v. Superior Court

The U.S. Supreme Court’s docket of civil procedure and federal courts cases continues to expand. Today the U.S. Supreme Court granted certiorari in Bristol-Myers Squibb Co. v. Superior Court, which will review a California Supreme Court decision handed down this summer. The cert petition presents the following question:

The Due Process Clause permits a state court to exercise specific jurisdiction over a defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted). The question presented is:

Whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims—that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 19, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (2)

Schwartz on Qualified Immunity

Joanna Schwartz has posted on SSRN a draft of her article, How Qualified Immunity Fails. Here’s the abstract:

Qualified immunity is a judicially created doctrine that shields government officials from constitutional claims for money damages, even if those officials have violated plaintiffs’ constitutional rights, so long as those constitutional rights are not clearly established. Courts and commentators share the assumption that the doctrine affords a powerful protection to government officials. And the Supreme Court has repeatedly explained that qualified immunity must be as powerful as it is to protect government officials from burdens associated with participating in discovery and trial. Yet the Supreme Court has relied on no empirical evidence to support its assertions that litigation imposes these burdens on government officials, or that qualified immunity doctrine protects against them.

This Article reports the results of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation, with particular attention paid to the frequency with which qualified immunity disposes of cases before discovery and trial. Based on my review of 1183 cases filed against law enforcement defendants in five federal court districts, I find that qualified immunity infrequently functions as expected. Fewer than 1% of Section 1983 cases in my dataset were dismissed at the motion to dismiss stage and just 2% were dismissed at summary judgment on qualified immunity grounds. After describing my findings, this Article considers the implications of these findings for descriptive accounts of qualified immunity’s role in constitutional litigation, the extent to which qualified immunity doctrine meets its policy goals, and possible adjustments to the balance struck between individual and government interests in qualified immunity doctrine.

 

 

 

 

January 19, 2017 in Recent Scholarship | Permalink | Comments (0)

Baude on Qualified Immunity

Will Baude has posted on SSRN a draft of his article, Is Qualified Immunity Unlawful? Here’s the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.

 

 

 

January 19, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 18, 2017

Today’s SCOTUS Decision on Federal Jurisdiction & Fannie Mae

Today, the U.S. Supreme Court issued a unanimous decision in Lightfoot v. Cendant Mortgage Corp. Justice Sotomayor’s opinion begins:

The corporate charter of the Federal National Mortgage Association, known as Fannie Mae, authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U. S. C. §1723a(a). This case presents the question whether this sue-and-be-sued clause grants federal district courts jurisdiction over cases involving Fannie Mae. We hold that it does not.

Download Lightfoot v Cendant Mortgage

 

 

 

January 18, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Oral Argument in Abbasi

Today the U.S. Supreme Court heard oral argument in three consolidated cases raising issues relating to Bivens, qualified immunity, and pleading standards.

The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). You can find more details on the cases here.

Here’s the transcript from today’s argument.

 

 

 

 

January 18, 2017 in Federal Courts, Federal Rules of Civil Procedure, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Effron on Jurisdiction and the Defend Trade Secrets Act

I have posted my latest article, Trade Secrets, Extraterritoriality, and Jurisdiction to SSRN.

Twenty years ago, Congress passed the Economic Espionage Act of 1996 which criminalized trade secret misappropriation and authorized broad domestic and international enforcement measures against trade secret misappropriation. At the time of its passage, the EEA was lauded by the business community, but it was heavily criticized by scholars who worried that the statute was too broad and too protectionist. In the intervening years, the business sector renewed its complaints about the insufficiency of U.S. trade secret laws, and scholars continued to express skepticism about using criminal law to enforce trade secret policy. Congress recently passed a new statute, the Defend Trade Secrets Act of 2016, which creates a federal private right of action under the EEA for trade secret misappropriation and economic espionage, and authorizes a variety of remedies including injunctions, damages, and seizure of property.

In 2003, I published a student note examining the EEA and arguing that the broad statutory language and potential for extraterritorial enforcement created problems for the United States given our commitments to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS agreement”). Given the recent legislative efforts to expand the EEA to include private enforcement, it is time to revisit and update research on the EEA. This Article examines the new problems and challenges private enforcement of the EEA might present. In particular, this Article considers whether the problems of extraterritorial criminal enforcement extend to the civil context.

This Article proceeds in three parts. Part I gives a brief overview of the DTSA and its relationship to the EEA. Part II demonstrates that expanding the EEA to include civil enforcement creates personal jurisdiction problems. Part III argues that the doctrine of forum non conveniens presents yet another barrier to DTSA proceedings in U.S. courts. The Article concludes by noting that the jurisdictional necessities of civil enforcement under the DTSA set businesses on a collision course with the direction of personal jurisdiction and forum non conveniens law for which they have largely advocated the past few decades. In other words, viewing the DTSA through a jurisdictional lens reveals some of the underlying, understated, and confused purposes of the statute.

January 18, 2017 in Recent Scholarship | Permalink | Comments (0)

Friday, January 13, 2017

SCOTUS Cert Grant on Judicial Review of MSPB Decisions

Today the U.S. Supreme Court granted certiorari in Perry v. Merit Systems Protection Board, which presents the following question:

The Merit Systems Protection Board (MSPB) is authorized to hear challenges by certain federal employees to certain major adverse employment actions. If such a challenge involves a claim under the federal anti-discrimination laws, it is referred to as a “mixed” case. This case presents the following question:

Whether an MSPB decision disposing of a “mixed” case on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

January 13, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on General Jurisdiction & FELA

Today the U.S. Supreme Court granted certiorari in BNSF Railway Co. v. Tyrrell, which presents the following question:

In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), this Court held that the Due Process Clause forbids a state court from exercising general personal jurisdiction except where the defendant is “at home.” BNSF Railway Company is not at home in Montana under Daimler, yet the Montana Supreme Court held that BNSF is subject to general personal jurisdiction in Montana, and can be sued there by out-of-state plaintiffs for claims that have no connection at all to the state. The Montana Supreme Court explicitly “declined” to apply this Court’s decision in Daimler, for two reasons: First, because the facts of this case involve American parties and arose in the United States, not foreign parties and an overseas injury as in Daimler. Second, because the plaintiffs here sued under the Federal Employers’ Liability Act (FELA), which is a different federal cause of action from the ones at issue in Daimler. Section 56 of FELA establishes venue for cases filed in federal court, and it provides for concurrent subject-matter jurisdiction in state courts. Yet the Montana Supreme Court held that this provision authorizes state courts to exercise personal jurisdiction, and that the statute overrides the limitations of the Due Process Clause.

The question presented is:

Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Article III Standing & Intervention

Today the U.S. Supreme Court granted certiorari in Town of Chester v. Laroe Estates, Inc., which presents the following question:

Whether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing (as three circuits have held), or whether Article III is satisfied so long as there is a valid case or controversy between the named parties (as seven circuits have held).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Class Actions and Statutes of Limitations

Today the U.S. Supreme Court granted certiorari in California Public Employees' Retirement System v. ANZ Securities, Inc., which presents the question: “Does the filing of a putative class action serve, under the American Pipe rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members?”

(This question was the subject of an earlier Supreme Court case (IndyMac), but cert in that case was dismissed as improvidently granted because of a settlement.)

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Class-Waiver Arbitration Agreements & Federal Labor Law

Today the U.S. Supreme Court granted certiorari in three cases that raise the question of whether arbitration agreements that forbid class claims violate federal labor law. The cases, which were consolidated by the Court, are:

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Epic Systems, Ernst & Young, and Murphy Oil.

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

16 Cert Grants in Today’s SCOTUS Order List

Today the U.S. Supreme Court granted certiorari in 16 cases. Lots of federal courts and civil procedure issues in the mix—more details to come.

In the meantime, here’s the order list.

 

 

 

January 13, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

D.C. Circuit Denies Motion to Intervene in ACA Appeal

Yesterday the U.S. Court of Appeals for the D.C. Circuit denied an attempt by two consumers to intervene in U.S. House of Representatives v. Burwell (No. 16-5202). The case involves, among other things, whether the House of Representatives has Article III standing to sue regarding the Executive Branch’s administration of the Affordable Care Act.

Here is the text of yesterday’s order:

Upon consideration of the motion for leave to intervene, the responses thereto, and the reply, it is

ORDERED that the motion for leave to intervene be denied. Movant-intervenors have not demonstrated that they are entitled to intervene in this case. See Fed. R. Civ. P. 24; Building and Const. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (enumerating the requirements for intervention under Rule 24 and applying those factors to a motion to intervene in an appellate proceeding). This case shall continue to be held in abeyance, with motions to govern further proceedings due February 21, 2017. See Order (Dec. 5, 2016).

Download DC Circuit Order

Here is the initial motion to intervene:

Download DC Circuit Motion to Intervene

 

 

 

January 13, 2017 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, January 12, 2017

Bradley & Siegel on the Judicial Separation of Powers

Curtis Bradley and Neil Siegel have published Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017). Here’s the abstract:

Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support nonlegal but obligatory norms of proper governmental behavior—something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957–1958, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows—based on internal Executive Branch documents that have not previously been discovered or discussed in the literature—how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of historical gloss and conventions for the judicial separation of powers more generally.

 

 

 

January 12, 2017 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, January 11, 2017

Jaros and Zimmerman on Judging Aggregate Settlement

David Jaros (University of Baltimore) and Adam Zimmerman (Loyola LA) have posted Judging Aggregate Settlement to SSRN.

While courts historically have taken a hands-off approach to settlement, judges across the legal spectrum have begun to intervene actively in “aggregate settlements”—repeated settlements between the same parties or institutions that resolve large groups of claims in a lockstep manner. In large-scale litigation, for example, courts have invented, without express authority, new “quasi-class action” doctrines to review the adequacy of massive settlements brokered by similar groups of attorneys. In recent and prominent agency settlements, including ones involving the SEC and EPA, courts have scrutinized the underlying merits to ensure settlements adequately reflect the interests of victims and the public at large. Even in criminal law, which has lagged behind other legal systems in acknowledging the primacy of negotiated outcomes, judges have taken additional steps to review iterant settlement decisions routinely made by criminal defense attorneys and prosecutors.

Increasingly, courts intervene in settlements out of a fear commonly associated with class action negotiations—that the “aggregate” nature of the settlement process undermines the courts’ ability to promote legitimacy, loyalty, accuracy and the development of substantive law. Unfortunately, when courts step in to review the substance of settlements on their own, they may frustrate the parties’ interests, upset the separation of powers, or stretch the limits of their ability. The phenomenon of aggregate settlement thus challenges the judiciary’s duty to preserve the integrity of the civil, administrative, and criminal justice systems.

This Article maps the new and critical role that courts must play in policing aggregate settlements. We argue that judicial review should exist to alert and press other institutions—private associations of attorneys, government lawyers, and the coordinate branches of government—to reform bureaucratic approaches to settling cases. Such review would not mean interfering with the final outcome of any given settlement. Rather, judicial review would instead mean demanding more information about the parties’ competing interests in settlement, more participation by outside stakeholders, and more reasoned explanations for the trade-offs made by counsel on behalf of similarly situated parties. In so doing, courts can provide an important failsafe that helps protect the procedural, substantive, and rule-of-law values threatened by aggregate settlements.

January 11, 2017 in Recent Scholarship | Permalink | Comments (0)

Tuesday, January 10, 2017

Interesting Class Action Decision from the Ninth Circuit

Last week, the U.S. Court of Appeals for the Ninth Circuit decided Briseno v. ConAgra Foods Inc., which addresses what has come to be known in other federal courts as the “ascertainability” requirement. The entire opinion is worth a read, but here are some highlights.

At the outset, the court took issue with the term “ascertainability.” It explained in a footnote:

ConAgra called this a failure of “ascertainability.” We refrain from referring to “ascertainability” in this opinion because courts ascribe widely varied meanings to that term. For example, some courts use the word “ascertainability” to deny certification of classes that are not clearly or objectively defined. See, e.g., Brecher v. Republic of Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class defined as all owners of beneficial interests in a particular bond series, without reference to the time owned, was too indefinite); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class certification because a class composed of state residents “active in the ‘peace movement’” was uncertain and overbroad). Others have used the term in referring to classes defined in terms of success on the merits. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014) (remanding and instructing the district court to consider, “as part of its class-definition analysis,” inter alia , whether the proposed classes could be defined without creating a fail-safe class).

Stated more precisely, ConAgra’s argument was that “there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members.” The court, however, rejected the argument that class certification requires—separate and apart from the enumerated requirements in Rule 23—that there be “an administratively feasible way to determine who is in the class.” It wrote: “We have not previously interpreted Rule 23 to require such a demonstration, and, for the reasons that follow, we do not do so now.”

The court also said the following about case law from other circuits:

We recognize that the Third Circuit does require putative class representatives to demonstrate “administrative feasibility” as a prerequisite to class certification. See Byrd v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir. 2013). The Third Circuit justifies its administrative feasibility requirement not through the text of Rule 23 but rather as a necessary tool to ensure that the “class will actually function as a class.” Byrd, 784 F.3d at 162. The Third Circuit suggests that its administrative feasibility prerequisite achieves this goal by (1) mitigating administrative burdens; (2) safeguarding the interests of absent and bona fide class members; and (3) protecting the due process rights of defendants. See Carrera, 727 F.3d at 307, 310. The Seventh Circuit soundly rejected those justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (citing Mullins in declining to follow Carrera). We likewise conclude that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit and, therefore, that an independent administrative feasibility requirement is unnecessary.

Download Briseno (9th Cir)

 

 

January 10, 2017 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, January 5, 2017

Steinman on Delaney on Strategic Avoidance

Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).

 

 

 

January 5, 2017 in Adam Steinman, Federal Courts, International Courts, International/Comparative Law, Recent Scholarship, Standing, Weblogs | Permalink | Comments (0)

Call for Papers: Third Annual Civil Procedure Workshop

The Third Annual Civil Procedure Workshop will be held at the University of Arizona on November 3-4, 2017. The call for papers is below (the deadline for submitting abstracts is March 1, 2017).

Download CPW III Call for Papers

Continue reading

January 5, 2017 in Conferences/Symposia | Permalink | Comments (0)