Tuesday, August 23, 2016
I recently received a Call for Papers from the AALS Section on Conflict of Laws, which will be holding a program entitled New Voices in Conflict of Laws at the AALS annual meeting in January 2017. Here’s the submission procedure:
Full-time faculty members of AALS member law schools who are untenured or received tenure in 2015 or 2016 are invited to submit papers.
Submissions may take the form of draft papers or detailed abstracts, although priority may be given to draft papers. Submissions should be anonymous. Please do not include your name, institution or other identifying information in your paper or abstract, and please do not send submissions directly to the Section Chair. One goal of the program is to provide useful feedback on works in progress. Therefore, please do not submit published work or work that is expected to be published or in final form prior to the meeting.
The deadline for submissions is August 26, 2016. Please send your submission in Microsoft Word format to Stacy Tran, assistant to the Section Chair, at firstname.lastname@example.org. In the subject line of your submission, please write “AALS New Voices in Conflict of Laws Submission.”
The Executive Committee of the AALS Conflict of Laws section will review submissions and select up to three papers to be included in the program. Authors of selected submissions will be notified by September 28, 2016. Complete drafts of the selected papers are due no later than December 2, 2016.
More details on the announcement below:
Michael Sant'Ambrogio and Adam Zimmerman have posted on SSRN a draft of their article, Inside the Agency Class Action, which will be published in the Yale Law Journal. Here’s the abstract:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies—including agency policymakers, staff and adjudicators—we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.
Monday, August 22, 2016
Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)
Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.
Jonah Gelbach & Dave Marcus have posted on SSRN A Study of Social Security Disability Litigation in the Federal Courts, Final Report to the Administrative Conference of the United States. Here’s the abstract:
A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent.
The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation.
Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly.
Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.
Friday, August 19, 2016
Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.
From the opinion:
The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.
Last week the California Supreme Court issued an important decision on how to calculate the amount of attorney fees in class actions: Laffitte v. Robert Half International Inc.
Alison Frankel (Reuters) has this report.
Monday, August 15, 2016
Howard Wasserman has posted the details for the Ninth Annual Junior Faculty Federal Courts Workshop, which will take place at Emory on March 31 - April 1, 2017. If you’d like to present, submit an abstract to email@example.com by November 1, 2016.
Friday, August 12, 2016
The Committee on Rules of Practice and Procedure has published proposed amendments to the Federal Rules of Civil Procedure (along with proposed amendments to the Appellate, Bankruptcy & Criminal Rules). The proposed FRCP amendments include—among other things—changes to Rule 23’s provisions on class actions.
The comment period runs until February 15, 2017. Comments on the FRCP amendments can be submitted here.
In addition, the Civil Rules Committee will be holding the following public hearings:
- Washington, DC on November 3, 2016
- Phoenix, AZ on January 4, 2017
- Dallas/Ft. Worth, TX on February 16, 2017
The contributions to the Emory Law Journal’s 2015 Pound Symposium are posted here. They include essays by Stephen Daniels & Joanne Martin, Rich Freer, Myriam Gilles, Bob Klonoff, Alexandra Lahav, Cathy Sharkey, and Georgene Vairo.
Just Published: The Sedona Conference Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control"
The Sedona Conference has issued its final Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control." 17 Sedona Conf. J. ____ (forthcoming 2016).
From the Abstract:
Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s “possession, custody, or control.” Yet, the Rules are silent on what the phrase “possession, custody, or control” means. Therefore, parties must look to case law for a definition. Unfortunately, the case law across circuits (and often within circuits themselves) is unclear and, at times, inconsistent as to what is meant by “possession, custody, or control,” resulting in a lack of reliable legal—and practical—guidance. The inconsistent interpretation and application of Rules 34 and 45 in this context are especially problematic because parties remain absolutely responsible for preserving and producing information within their “possession, custody, or control” and face material consequences, including sanctions, for their failure to do so.
. . . .
This Commentary is intended to provide practical, uniform, and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (hereafter, collectively referred to as “Documents and ESI”) subject to Rule 34 and Rule 45 requests for production. A secondary, corollary purpose of this Commentary is to advocate abolishing use of the common‐law “Practical Ability Test” for purposes of determining Rule 34 and Rule 45 “control” of Documents and ESI. Simply stated, this common‐law test has led to inequitable situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI. Therefore, this Commentary recommends that courts should interpret and enforce Rule 34 “possession, custody, or control” obligations in ways that do not lead to sanctions for unintended and uncontrollable circumstances. To support that recommendation, this Commentary also looks to several well‐established legal doctrines upon which to model the contemporary scope of a party’s duty to identify, preserve, and collect Documents and ESI, such as reliance upon a modified version of the business judgment rule. Helping resolve the disparity among circuits to bring a uniform, national standard to this important area of the law is consistent with Sedona’s mission of moving the law forward in a just and reasoned way.
Here are "THE SEDONA CONFERENCE PRINCIPLES ON POSSESSION, CUSTODY, OR CONTROL":
Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation) does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.
Wednesday, August 10, 2016
Two articles published in the latest issue of the Journal of Empirical Legal Studies:
Michael Heise & Martin T. Wells, Revisiting Eisenberg and Plaintiff Success: State Court Civil Trial and Appellate Outcomes
Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg's analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff's success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff's decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff's decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that likely account for the observed differences that distinguish our results from Eisenberg's. First, legal cases that persist to an appellate outcome are a filtered subset of underlying trials and legal disputes and various selection effects inform much of this case filtering. Second, where Eisenberg analyzed the relation between pretrial motions and trial outcomes in federal courts, we assess possible relations between trial and appellate court outcomes in state courts. The pretrial and trial context and the trial and appeals context likely differ in ways that disturb plaintiff success. Third, while Eisenberg studied federal cases between 1978–1985 we study state cases between 2001–2009. In addition to differences between federal and state civil cases, the composition of cases that selected into formal litigation may have evolved over time.
Talia Fisher, Tamar Kritcheli-Katz, Issi Rosen-Zvi, & Theodore Eisenberg, He Paid, She Paid: Exploiting Israeli Courts' Rulings on Litigation Costs to Explore Gender Biases
This study documents gender disparities in litigation-cost rulings in Israel. It expands on the existing literature on judicial bias in at least two important ways: by controlling for the merits of the cases and by focusing on civil litigation. The first improvement is methodological. The unique Israeli regime of litigation costs allows us to control for the merit of the cases, as well as for other typically unobservable variables, and thus to isolate and observe judicial bias. The second improvement on the existing literature on judicial bias involves focusing on outcome disparities in the civil (rather than criminal) justice system. Although numerous studies explore gender-based disparities in the criminal justice sphere, only a very small number of studies explore such disparities in the civil arena. We found clear disparities in the allocation of litigation costs between men and women. Male plaintiffs who lost were ordered to pay the winners' legal fees more often than were losing women as sole plaintiffs or as part of all-women plaintiff groups. Likewise, the fees women plaintiffs who lost a case were obliged to pay were less than those required of losing men, and women defendants who won cases received higher fee awards than similarly situated men.
Thursday, August 4, 2016
Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:
Friday, July 29, 2016
Lou Mulligan and Glen Staszewski have posted on SSRN a draft of their article, Civil Rules Interpretive Theory. Here’s the abstract:
We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
Sunday, July 24, 2016
From the Central States Law Schools Association:
Please click here to register. The deadline for registration is September 2, 2016.
Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
Monday, July 18, 2016
The Second Annual Civil Procedure Workshop was held last week in Seattle. Thanks to the organizers Brooke Coleman, Dave Marcus, and Liz Porter for putting together a fantastic event.
If you’re interested in participating in the future, here’s some info:
- The Third Annual Civil Procedure Workshop will be at the University of Arizona on November 3-4, 2017.
- The Fourth Annual Civil Procedure Workshop will be at Stanford University in July 2018.
Stay tuned for more details.
Friday, July 15, 2016
Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?
This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.
Thursday, July 14, 2016
Professor Suja Thomas (Illinois) has just published her book, The Missing American Jury (Cambridge U. Press). Here is a summary of the book:
Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government. Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide andargues jury decision-making should be preferred over determinations by other governmental bodies.
Wednesday, July 13, 2016
Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:
For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.
The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?
This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.
Tuesday, July 12, 2016
Jessica Erickson has posted on SSRN a draft of her article, Heightened Procedure, which will be published in the Iowa Law Review. Here’s the abstract:
When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for uniform procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure” — additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the prevalence of heightened procedure, there has been no comprehensive examination of its role across the legal system, leaving lawmakers with little understanding of what specific heightened procedures do and what specific areas of the law need. This Article aims to provide that framework, explaining how lawmakers can match the causes of meritless litigation with the appropriate heightened procedural tools. In the end, meritless litigation is not one-size-fits-all, and its procedural solutions should not be either.
Professor Richard Freer has just published in Emory Law Journal, 65 Emory L.J. 1491, his recent article, Exodus from and Transformation of American Civil Litigation.
But, at least as envisioned historically, court litigation plays a far broader role than arbitration. It is a transparent public process, governed by the rule of law. It generates the common law that governs most aspects of our daily lives. It is pivotal in social ordering. Arbitration, in contrast, goes on behind closed doors, is not cabined by the rule of law, and does not result in reasoned opinions. Arbitration resolves the dispute at hand and does little else. Accordingly, some have argued that the view that arbitration and court litigation are equivalents cheapens the values embodied in court litigation.
That argument is strong, but would be stronger if today’s version of court litigation resembled the historical model. It does not. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. Indeed, some judges conclude that going to trial reflects a systemic “failure.”
The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.