November 9, 2007
About to be restyled
As December 1 approaches, so too does the "restyling" of the federal rules. We first noted the amendments a few days after the Supreme Court approved the rules. Since then, we've linked to writings by Professors Dorf and Hartnett here, interviewed Hartnett, and interviewed Prof. Parker about his letter urging Congress to postpone the effectiveness of the amendments. Thanks to everyone who contributed on this topic, and especially to those who commented on an earlier draft of our essay, which now appears at Washington University's Slip Opinions: The Restyling of the Federal Rules of Civil Procedure: A Solution in Search of a Problem. --RR
November 7, 2007
On SSRN, Professor Debra Lyn Bassett recently posted a draft of Statutory Interpretation in the Context of Federal Jurisdiction. The abstract follows:
Recently the Supreme Court has suggested that despite the distinctive nature of jurisdictional statutes, such statutes implicate only traditional notions of statutory construction. Indeed, the Court's most recent jurisdictional statutory interpretation decision, Exxon Mobil Corp. v. Allapattah Services, Inc., seemed to suggest that there was nothing special about jurisdictional statutes. But, as this Article explains, this has not been, and is not, true.
The distinctive nature of federal jurisdiction statutes demands a more constitutionally-oriented interpretive approach - traditional methods of statutory interpretation are inadequate because they fail to take this unique character into account. Jurisdictional statutes are subject to unique interpretive difficulties not encountered in the judicial construction of ordinary congressional legislation. These unique interpretive difficulties necessitate a wider range of considerations in the jurisdictional arena, including the traditional rules of statutory construction plus the Constitution itself as an interpretive document - all the while being cognizant of the potential for separation of powers and conflict of interest issues. In short, this Article proposes that in approaching their tasks of statutory construction in this area involving the reach of their own powers, federal courts should be guided by rules as understood and informed by the gravitational pull of Article III, and saving constructions are inappropriate. I explore these interpretive issues in the specific context of the interpretation of the 1988 amendment to 1332 pertaining to permanent resident aliens - an odd and interesting provision that has generated three different interpretive results from the three circuit courts that have examined it, despite the unconstitutionality of the statute's unambiguous plain language.
The article, which will appear in the George Washington Law Review, is definitely worth the read. Prof. Bassett provides a very readable and thoughtful discussion of statutory interpretation in the jurisdictional context and of alienage jurisdiction. I do disagree, though, with her conclusion about the proper construction of the permanent-resident-alien provision in section 1332, as I noted recently in Consistent "Deeming": A Cohesive Construction of 28 U.S.C. s1332 in Cases Involving International Corporations and Permanent-Resident Aliens:
Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing their analyses in terms of “clear” or “unambiguous” text, the courts have actually imposed no construction at all, instead jumping extra-textually to the what-would-Congress-have-wanted question. Further, courts faced with cases in each category have decided the cases without reference to the other category. My solution is a modest one but provides the consistency needed in a jurisdictional inquiry. I give the words “shall be deemed” a consistent construction in the two deeming provisions and resolve the missing-word problem that lurks in the background. Under my solution, the words “shall be deemed” perform a simple function in the deeming provisions—they confer State citizenship on certain litigants. But they do not strip a party of preexisting alien status. When construed this way and combined with the § 1332(a) jurisdiction-granting subcategories, the deeming provisions create no jurisdiction that did not exist before the deeming provisions.
This solution provides several benefits. First, it provides the consistency and coherence needed in a jurisdictional inquiry. Second, it is textually faithful and gives effect to similar language used in the deeming provisions and differing language used elsewhere in § 1332. Third, it avoids the constitutional problems that arise under alternative construction. To be sure, one might conjure up scenarios where, in the view of the conjurer, exercising jurisdiction would better serve the purposes of alienage jurisdiction. But those scenarios are rare, and desirability of results cannot distort the task—giving effect to the statute. Among permissible solutions, mine yields the best results. It simply is not accepted as an acceptable method of statutory interpretation that when no construction yields the construer’s desired result in every case, the statute need be given no construction except what Congress should have intended in each case.
November 5, 2007
Worth a Read
Late last month the Fifth Circuit handed down In re Volkswagen of America Inc., an opinion in which the court reevaluates the appropriate weight to be given the plaintiff's choice of forum when deciding whether to make a 1404(a) transfer. The district court refused to transfer because the balance of public and private interest factors did not weigh substantially in favor of transfer. The Fifth Circuit found error in the trial court's analysis. Before saying that its "precedents have not been the model of clarity," the court of appeals said:
We agree, then, with the contention that the district court erred in requiring Volkswagen to show that the balance of convenience and justice substantially weighs in favor of transfer. Plaintiff's choice of forum is entitled to deference. Indeed, this deference establishes the burden that a moving party must meet in seeking a s 1404(a) transfer. But the appropriate standard for this burden is that established by Humble Oil. Namely, a party seeking a transfer "must show good cause." When viewed in the light of s 1404(a), to show good cause means that a party must demonstrate that a transfer is "for the convenience of parties and witnesses, in the interest of justice." When the transferee forum is no more convenient than the chosen forum, the plaintiff's choice should not be disturbed. When the transferee forum is clearly more convenient, a transfer should be ordered (emphasis added).
The Volkswagen decision was an appeal from the Eastern District of Texas, Marshall Division, which reminds me of this article last year in the New York Times about the little Texas town of Marshall--home of both the Fire Ant Festival and some of the most significant patent litigation in the world.--Counseller
November 4, 2007
VAPs, New Preps, AALS Recruitment and Time
Well, it sure has been a busy few weeks on my end (I’m writing this on an airplane). This post is intended for the first time Civ Pro prof who is not yet in a tenure track position (all the VAP’s out there). One of the things I did not anticipate as a new professor, was just how much out of class prep time I would require.
Civil Procedure is one of my two new preps this semester, I’m also teaching a required upper level course. For each class session I spend approximately 4 hours prepping. My more experienced mentors informed me that I should expect to spend that much time preparing, but I didn’t believe them. Those of you reading this who are coming up on your first prep in Civ Pro (or any other class for that matter) take heed. Similarly, students reading this who think all professors do is show up and teach for 4-5 hours a week, bear this in mind: Your professor probably spends 4 hours preparing for each class session, that’s because they not only read the material which they’ve assigned, but they’re also reading other materials, developing examples, hypotheticals, slides, etc. 4.5 hours of teaching a week plus 12 hours of prep, just for one course. If they’re teaching another course, you can see how the prep time adds up. Factor in 3 hours a week answering student questions, maybe an hour (or more) for faculty and committee meetings, way too much time responding to emails, work shopping papers, trying to mentor students and help them in their career search, chatting with colleagues, blogging, plus attempting to engage in some scholarship, and very quickly the time seems to disappear.
Now let me be honest, the job is unbelievable, the work I’ve described above is intellectually challenging and overwhelmingly rewarding and it is the best job I’ve ever had in my life, and the best I think I ever will have. But juggling being the best professor one can be and developing an ambitious scholarly agenda is very difficult while prepping a course for the first time, let alone while prepping two new courses. I’m getting about 25% of the research done that I want to, and none of the writing! So I clearly did not anticipate the amount of time required for all of these tasks.
And I left out perhaps the biggest time drain in the middle of the fall semester--- the AALS Recruitment Market! Of course Sept-Oct was consumed with fretting over and worrying about getting interviews, then preparing for the interviews I was offered. This involved the time consuming task of researching each school in depth, cyberstalking the professors who will be interviewing me, researching the towns where the schools are located, reading the scholarship of all of the interviewers, and preparing for the actual interview questions (what’s your research agenda, what’s your ideal teaching package, tell us about article x that you wrote years ago, tell us about page __ in your book, etc. etc.). Plus the 4 days of the conference itself.
November is of course consumed by the call-back interviews. I was lucky enough to get 4 (some candidates out there with double digit call backs are probably laughing, but I consider 4 to be pretty lucky!). With that said, I don’t know how someone with double digit call backs who’s also teaching could possibly work that schedule out (nice problem to have). I have an interview a week through the end of November, and need to have my job talk polished. That’s in addition to prepping my classes (while I look elsewhere for work---weird). I know some may be tempted to shirk their teaching responsibilities at this stage of the game, however I can’t stomach the thought of half a$$ing my teaching when my students are shelling out as much cash as they are. No matter how self interested I may want to be, I’m trying to do it all and not let myself or anyone else down. It’s exhausting. Believe it or not, I’m actually looking forward to grading exams in the solitude of a Starbucks somewhere this December. First though, I need to write those exams!
New VAPs take heed, no matter how much you plan, it is tough to find enough time to do it all!