Saturday, November 7, 2009
Martin Redish (Northwestern), Peter Julian (Northwestern), and Samantha Zyontz (Searle Civil Justice Institute) have posted "Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis" on SSRN. It will be published in the Florida Law Review.
Friday, November 6, 2009
Professor Patricia Hatamyar (St. Thomas, Florida) has a forthcoming article in the American University Law Review that may be of interest to our readers. The article is The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, and it's available on SSRN.
Here's the abstract:
This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of "notice pleading" in federal civil practice.
The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the "no set of facts" standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice.
The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly/Iqbal, the odds of a 12(b)(6) motion being granted rather than denied are 1.5 times greater than under Conley, holding all other variables constant.
Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%).
The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process.
Thursday, November 5, 2009
The march of Supreme Court arguments in the civil procedure & federal courts area continues next week in Hertz Corp. v. Friend (No. 08-1107). (For our coverage of other arguments of interest this Term, see here, here, and here.)
This case presents the long-simmering question of how to determine a corporation's "principal place of business" for purposes of diversity jurisdiction. Section 1332(c), of course, deems a corporation to be a citizen of both the state where it has its principal place of business and its state of incorporation.
Brief for Petitioner (Defendant)
Brief for Respondent (Plaintiff)
Reply Brief for Petitioner (Defendant)
There are also two amicus briefs, one on each side:
Amicus Brief Supporting Petitioner (by four organizations, including the U.S. Chamber of Commerce)
Continuing the trend of scholars from inside and outside of the civil procedure realm to study the possible ramifications of Twombly and Iqbal, M. Todd Henderson (University of Chicago) has posted an essay entitled Justifying Jones to SSRN.
This essay considers Judge Easterbrook's opinion in Jones v. Harris Associates in celebration of his 25th anniversary on the bench. The case, currently pending at the Supreme Court, is being billed as the most important mutual fund case in decades, if not ever. This is part because it addresses the question of whether investors are overpaying for the services of their investment advisors, and the current political climate is quite hostile to highly compensated managers and sympathetic to investors. Judge Easterbrook's opinion makes the case even more interesting because it was not expected or wanted by any of the parties, and everyone involved wants the Supreme Court to reject its reasoning. Easterbrook believes that litigation against advisors claiming excessive compensation is socially wasteful, and his opinion tries to do away with these cases in all but the most extreme cases. This Essay uses theory and some ballpark estimates of the costs and benefits of this type of litigation to justify what Judge Easterbrook did. It shows how despite being billed as a case about executive compensation, the relevant precedents are not the Supreme Court's cases on pay (e.g., Rogers v. Hill) but rather its recent civil procedure cases (e.g., Bell Atlantic Corp. v. Twombly). It also exposes the reasons why none of the parties nor the mutual fund industry agree with Judge Easterbrook. Obviously the lawyers on both sides benefit from litigation, which he is trying to end, but more interestingly the mutual fund industry rationally prefers the small tax on its profits that the current regime generates over the risk that the Supreme Court or, worse, the Congress might make matters much worse. This case is therefore a classic example where the narrow interests of the parties are not informative of the right result. This Essay shows why the Supreme Court should consider the interests of investors over the lawyers and the funds before reinstating a legal regime under which the plaintiffs have never won and that serves no deterrent function.
Margaret Tarkington (BYU J. Reuben Clark Law School) has posted "A Free Speech Right to Impugn Judicial Integrity in Court Proceedings" on SSRN. It is forthcoming in the Boston College Law Review. The abstract states:
Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is entitled to little, if any, constitutional protection.
In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, Professor Tarkington examines why a free speech right to impugn judicial integrity must be recognized for attorneys - even, and perhaps especially, when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and other rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right in the attorney preserves litigants’ access to courts and due process rights. These rights belonging to litigants are all but lost where attorneys are punished for or chilled from asserting them in court proceedings. Previous scholarly arguments - which are based on analogies to other areas of limited First Amendment protection - fail to account for the protection of the underlying rights of litigants, the role of attorneys in our adversary system, and the constitutionally-required role of the judicial branch. Importantly, the judiciary does not need to punish attorney speech impugning judicial integrity in order to protect its legitimate interests in the just adjudication of cases. In fact, by curbing speech in the presentation of claims, the judiciary undermines its own role and responsibility in remedying constitutional violations and providing fair proceedings.
Wednesday, November 4, 2009
Alexandra Lahav (University of Connecticut) has posted Portraits of Resistance: Lawyer Responses to Unjust Proceedings on SSRN.
This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own.
The purpose of the Article is to paint a landscape of lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals such as whether lawyers who participate in unjust tribunals are complicit in injustice and what lawyers can do in the face of an unjust procedural regime. It presents a new way of understanding the forms of lawyer resistance to injustice. The Article demonstrates that complicity and resistance are not on opposite poles of human behavior within organizational systems. Rather, there is a dualistic interplay between complicity and resistance. Acts that appear to be resistance can be perceived as complicit, and acts that appear to be complicit can result in powerful forms of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to his or her client and whether lawyers can know when a tribunal is so unjust as to merit resistance. It concludes by considering avenues for further research.
Tuesday, November 3, 2009
As previewed earlier here, Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. considers whether New York's bar on class actions for certain statutory-damages claims (N.Y. C.P.L.R. 901(b)) precludes class certification in a federal court diversity action. Among the relevant issues are whether the Erie doctrine requires federal courts to follow state class action law, and whether allowing FRCP 23 to displace New York law on the availability of a class action would run afoul of the Rules Enabling Act's command that the FRCPs "shall not abridge, enlarge or modify any substantive right." (28 U.S.C. 2072(b))
The transcript from yesterday's oral argument is available here.
Monday, November 2, 2009
Cert. Grant Today: Federal Jurisdiction over Constitutional Challenge to Ohio's Tax Benefits for Local Natural Gas Distributors (Levin v. Commerce Energy Inc.)
Today the Supreme Court granted certiorari in Levin v. Commerce Energy Inc. (09-223). The questions presented are:
(1) Did Hibbs v. Winn, which addressed the scope of the Tax Injunction Act's bar against federal cases seeking to enjoin the assessment and collection of state taxes, eliminate or narrow the doctrine of comity--applied in Fair Assessment in Real Estate Association v. McNary--which more broadly precludes federal jurisdiction over cases that intrude on the administration of state taxation?
(2) Do either comity principles or the Tax Injunction Act bar federal jurisdiction over a case in which taxpayers allege, on equal protection and dormant commerce clause grounds, that their tax assessments are discriminatory relative to other taxpayers' assessments?
The docket is here, and the Sixth Circuit’s decision is at 554 F.3d 1094.
(Hat Tip: BNA’s Supreme Court Today)
Last week the Kansas Supreme Court heard oral argument in Miller v. Johnson, a medical malpractice case challenging the constitutionality of a Kansas statute that caps damages for noneconomic loss at $250,000.
(Hat Tip: How Appealing)
James R. Maxeiner (University of Baltimore School of Law) has posted "Cost and Fee Allocation in Civil Procedure: United States of America National Report," which will be published in the American Journal of Comparative Law.