Civil Procedure & Federal Courts Blog

Jenks on the Political Question Doctrine Applied to "Battlefield" Government Contractors

Chris Jenks (JAG) has posted "Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine" (forthcoming Berkley Journal of International Law) on SSRN.  The abstract states: 

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government's attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

~clf

The Honorable Jerry Buchmeyer (1933-2009)

U.S. District Judge Jerry Buchmeyer passed away this week. I was Judge Buchmeyer's law clerk a decade (or so) ago when he was the Chief Judge of the Northern District of Texas. While I won't detail here his impact as a jurist, or his many contributions to the legal community in Dallas, the State of Texas and beyond, I did want to take a moment to mark the passing of this remarkable man. His compassion, warmth and sense of humor were legendary. As an employer, mentor and friend, he was an inspiration.

But the thing I'm most thankful for is that, without Judge Buchmeyer, I would not have met my wife. She was trying to call another number in the courthouse, misdialed, and reached Judge Buchmeyer's chambers instead. I picked up the phone and the rest -- as they say -- is history.

Happy trails, Judge Buchmeyer. You'll be missed.

--A

PS: For additional coverage (which doesn't include the part about me meeting my wife), see Associated Press; Dallas Morning News; Ft. Worth Star-Telegram; The Conglomerate; Wall Street Journal Law Blog

Judicial Conference Approves Proposed FRCP Amendments

Last week, the Judicial Conference of the United States approved proposed amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52. Also approved were amendments to the Appellate Rules (Rules 1, 4, and 29, and Form 4), Evidence Rule 804, and several Bankruptcy and Criminal Rules. The amendments "will be transmitted to the Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling Act."

In addition, the Judicial Conference approved a set of "Guidelines for Distinguishing Between Matters Appropriate for Standing Orders and Matters Appropriate for Local Rules and for Posting Standing Orders on a Court's Web Site."

More details are available in the September 2009 Report of the Judicial Conference's Committee on Rules of Practice and Procedure.

(Hat Tip: Federal Civil Practice Bulletin)

--A

 

Justice Ginsburg Hospitalized

SCOTUS Blog reports on Justice Ginsburg:

Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s decision to be admitted to Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement on her hospitalization is available here.

~clf

Prof. Bone on Iqbal

For some more recent commentary on Iqbal, check out this essay by Professor Robert Bone (Boston University), Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal (85 Notre Dame L. Rev., forthcoming) on SSRN. Here’s the abstract:

This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.

(Hat tip: Larry Solum)

--A

Chase & Mustes on "'Acting' Judges and the Problem of Judicial Independence"

Oscar G. Chase (NYU) and George W. Mustes have posted "'Acting Judges and the Problem of Judicial Independence."  The abstract states: 

Contemporary threats to the independence of American judges have drawn critical comment from a variety of observers. In this spirit we describe and critique New York’s under-examined practice of using “Acting” Supreme Court Justices. These are judges serving on courts of inferior jurisdiction who are temporarily appointed to the Supreme Court of the State of New York, the state’s trial court of general jurisdiction. As the “Acting” title denotes, these appointees do not enjoy significant job security in their Supreme Court judgeships. While we focus here on the “Acting” judiciary of New York that state is not alone in using temporary judges and much of what we offer is relevant to other jurisdictions. We argue that both the possibility of an “Acting” appointment and the lack of any security in the position if appointed to it, create incentives to please appointing authorities that restrict independent decision making. We recommend that New York abandon the practice of “Acting” judicial appointments. Failing that we recommend making the process fairer and more transparent.

~clf

Hyman, Black, and Silver on the Impact of "Duty to Settle" on Settlement

David Hyman, Bernard Black, and Charles Silver have posted The Impact of the Duty to Settle" on Settlement: Evidence from Texas.

Abstract:
All insurance has coverage limits, and insurers usually control whether a case is settled or tried. If the insurer rejects a within-limits settlement offer, the risk of an above-limits verdict is borne by the insured. In response, virtually every state has enacted a “duty to settle,” which creates incentives for plaintiffs to make at-limits offers and for insurers to accept those offers where expected damages exceed limits. We study how the duty to settle affects claim duration and defense costs using detailed closed claims data from Texas for 1988-2005.

We find that medical malpractice cases against physicians that settle at limits close about five months faster than similar below-limits cases - a 20% reduction in time from suit filing to settlement, controlling for payout, type of harm, and other observable factors. At-limits cases also have substantially lower defense costs, controlling for case duration and complexity. It is difficult to obtain an at-limits payout without a lawyer. When there is an above-limits payout, it is primarily paid by the insurer. We find consistent results for other types of personal injury cases.

RJE

Court Budgets Are Tight All Over

Court clerks in Spain's Andalusa region now must take the bus instead of a taxi, their traditional mode of transportation, when they have to serve a summons. 

However, this money-saving strategy has significantly reduced efficiency.  Using taxis, a clerk can run about 20 judicial errands a day, but using the bus means only about seven or eight errands per day. The clerks complain that taking the bus is not only inconvenient and inefficient, but it is also unsafe.  "We have even had serious incidents of having to flee under gunfire," said Francisco Rueda, a court clerk and union leader. 

But, Andalusian Justice Minister Begona Alvarez chalked the resistance up to habit and said that the new bus rule is an appropriate response to a budgetary crisis.

The region's court system will soon benefit from a 600 million Euro plan to expand courts, hire more judges, and purchase more computers, but the money will come slowly over time and will not provide any immediate relief for the clerks' transportation woes.

For more information, see here.

~clf

New Articles on Sports and Procedure

Two recent articles posted on SSRN address the intersection of sports and procedure. 

Off-Court Misbehavior: Sports Leagues and Private Punishment by Janine Kim and Matthew Parlow at Marquette University School of Law focuses on criminal law and theory, but the emphasis on private disciplinary tribunals may be of interest to civil procedure folks, especially those of us who teach Rose v. Giamatti, 721 F. Supp. 906 (S.D.Ohio 1989).


Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review by Chad Oldfather and Matthew Fernholz, also of Marquette, uses the analogy of a judge as baseball umpire "as a vehicle for illustrating some general characteristics of a process of decisional review."

RJE

The Harshest Sanction of All?

Last week, in the case of Nault v. The Evangelical Lutheran Good Samaritan Foundation, No. 6:09-CV-1229 (M.D. Fla.), U.S. District Judge Gregory A. Presnell ordered that the plaintiff's attorney "shall re-read the Local Rules and the Federal Rules of Civil Procedure in their entirety."

The order was in response to an ill-conceived motion that the court found was, among other things, "riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible."

(Hat Tip: Above the Law)

--A

Tasty solution to bitter discovery dispute

A federal judge has ordered a litigant who cursed at an adversary during a discovery dispute to take a CLE class in professionalism and to have dinner with his adversary.  One wonders if the judge picked up the tab. 

The Legal Intelligencer reports here. 

RJE

Hot off the Presses: Recent Publications of Interest

Following up on Cynthia's post earlier today, the St. Louis University Law Journal has published a symposium entitled Teaching Federal Courts. Here are some of the contributions (with a hat tip to the Current Index of Legal Periodicals):

Richard H. Fallon, Jr., Why and How to Teach Federal Courts Today, 53 St. Louis U. L.J. 693 (2009)

Michael J. Gerhardt, Teaching Federal Courts: Federal Judges as Problem Solvers, 53 St. Louis U. L.J. 729 (2009)

Roger Goldman, Why Law Students Should Take the Federal Courts Course, 53 St. Louis U. L.J. 745 (2009)

Arthur D. Hellman, Another Voice for the “Dialogue”: Federal Courts as a Litigation Course, 53 St. Louis U. L.J. 761 (2009)

Evan Tsen Lee, Federal Jurisdiction According to Professor Frankfurter, 53 St. Louis U. L.J. 779 (2009)

Laura E. Little, Teaching Federal Courts: From Bottom Line to Mystery, 53 St. Louis U. L.J. 797 (2009)

Richard A. Matasar, Teaching Federal Courts Where Outcomes Matter: A Curricular Conjecture, 53 St. Louis U. L.J. 807 (2009)

James E. Pfander, Triangulating Standing, 53 St. Louis U. L.J. 829 (2009)

Georgene Vairo, Why I Don’t Teach Federal Courts Anymore, but Maybe Am or Will Again, 53 St. Louis U. L.J. 843 (2009)

Michael L. Wells, A Litigation-Oriented Approach to Teaching Federal Courts, 53 St. Louis U. L.J. 857 (2009)

Other recent publications that may be of interest to our readers include:

William N. Eskridge, Jr. and John Ferejohn, Constitutional Horticulture: Deliberation-Respecting Judicial Review. 87 Tex. L. Rev. 1273 (2009)

Tom Ginsburg and Zachary Elkins, Ancillary Powers of Constitutional Courts, 87 Tex. L. Rev. 1431 (2009)

Miguel Schor, The Strange Cases of Marbury and Lochner in the Constitutional Imagination, 87 Tex. L. Rev. 1463 (2009)

Aaron Bernay, Finding the Nexus: Measuring Jurisdiction under the First Clause of the Commercial Activity exception to the Foreign Sovereign Immunities Act, 77 U. Cin. L. Rev. 1581 (2009)

--A

Wells on Teaching Federal Courts Law

Michael Lewis Wells (University of Georgia) has posted A Litigation Oriented approach to Teaching Federal Courts Law (forthcoming St. Louis U. Law J.).  Here is the abstract:

The traditional focus of the course on Federal Courts has been the study of highly abstract principles of separation of powers and federalism. This paper argues that most students are better served by a course that focuses on what lawyers need to know in order to litigate issues regarding the types of disputes federal courts may address and the division of authority between federal and state courts. With that aim in mind, the paper suggests that the course should focus largely on the opportunities and obstacles faced by lawyers seeking to advance federal constitutional or statutory claims in the federal courts and in the state courts, with particular emphasis on section 1983 litigation.

~clf

More Iqbal commentary

Here from the National Law Journal.

RJE