March 18, 2010
Giesen on Burdens of Proof in European Tort Law
Ivo Giesen (Utrecht University) has posted The Reversal of the Burden of Proof in the Principles of European Tort Law: A Comparison with Dutch Tort Law and Civil Procedure Rules to SSRN.
Although it is not one of its main features, the Principles of European Tort Law (PETL) have devoted some attention to the rules regarding the burden of proof in tort cases, especially to the possibility of a reversal of that burden. Since such a reversal of the burden of proof will be highly relevant for the substantive outcome of a tort case, one needs to be able to justify such a reversal on normative grounds. However, that justification is not always advanced clearly enough in the PETL. At the same time the PETL focus largely on the possible exceptions to the general rule on the burden of proof. As a result, the underlying general rule as such has not been codified. This paper analyses the burden of proof rules in the PETL not only from a more technical point of view, but also from the perspective of the possible influence they might have on the substantive outcome of tort cases. To highlight their content, importance and possible inspirational force for a future ‘European tort law,’ these Principles are contrasted with their counterparts under Dutch tort law. The aim is to answer the question whether the choices made in the PETL are justifiable and whether the Dutch tort system can – or maybe even should – seek inspiration from these Principles.
Vote of Egyptian Constitutional Court opens door for the appointment of women judges in Egypt
On Sunday, Egypt's Constitutional Court issued an opinion opening the door for the appointment of women judges in Egypt by reversing a previous decision by the General Assembly of State Council to exclude women from the judiciary. The General Assembly had voted by an overwhelming majority in February to prohibit women from being given judicial appointments. The Constitutional Court's decision came as a result of a "request for clarification" by Egyptian Prime Minister Ahmed Nazif. The Constitutional Court voted that the general assembly did not have the power to decide the issue and that the decision about whether to appoint women judges is within the administrative committee's jurisdiction.
The administrative committee will take up the question next week. If the administrative committee decides to approve women judicial candidates, then women would be eligible for judicial appointment by presidential decree following approval of the candidate by the administrative committee.
The Jordan Times reports about the Egyptian Constitutional Court's decision here.
March 17, 2010
Nagareda on Pre-Trial as Trial in Complex Litigation
Richard Nagareda (Vanderbilt University School of Law) has posted 1938 All Over Again? Pre-Trial as Trial in Complex Litigation to SSRN.
This Essay for the Sixteenth Annual Clifford Symposium analyzes the transformation of the pre-trial process for complex civil litigation. Settlement, rather than trial, has emerged as the dominant endgame. As a result, in functional terms, the pre-trial phase effectively operates as the trial. Over the past quarter-century, doctrinal developments have shifted steadily backward within the pre-trial phase the major checkpoints for judicial scrutiny of claims. The key developments consist of the Supreme Court’s summary judgment “trilogy” (1986), the rise of Daubert scrutiny for the admissibility of expert testimony (1993), the elaboration of a distinctive law of class action certification (circa 2006) and, most recently, the invigoration of pleading standards in the Court’s Twombly and Iqbal decisions (2007 and 2009).
During the same period, an equally dramatic transformation has taken place with respect to litigation scholarship. Insights from economics, cognitive psychology, and finance – among other non-law disciplines – have broadened the vocabulary now available for analysis. Two big-picture points emerge from this literature: first, costs (especially, the ability to impose costs on one’s opponent) matter greatly to the choice whether to continue litigation or to settle; and, second, risk (or, more specifically, variance) matters in the pricing of civil claims via settlement, above and beyond calculations of expected value.
The emergence of judicial checkpoints in the pretrial phase has elicited considerable debate – most strikingly, today, over the Court’s pleading decisions. At one level, those decisions are rightly seen as pushing against the ethos of the 1938 reforms that put into place our modern notice-pleading regime. Yet, in a deeper historical sense, we actually find ourselves today in much the same position as the 1938 reformers. Today, as then, there is a lingering – but, often, undertheorized – sense that procedure itself is having an undue and even deleterious effect on the pricing of claims via settlement. It is just that the procedure now suspected to be distortive consists of the 1938 reforms. This Essay explains, in particular, how the Court’s attention to pleading standards in recent years marks a shift of emphasis from the regulation of variance in the litigation process to a concern over cost imposition.
The various pretrial checkpoints today exhibit a similar structural feature. They seek to manage variance or cost imposition by way of third-party judicial regulation – specifically, court rulings that signal “stop” or “go” on the road to trial. Evaluation of procedural doctrine as an enterprise of regulation opens up inquiry to the existence of other potential regulatory modes. This Essay concludes with examination of alternatives in the nature of first-party regulation (e.g., cost shifting) and regulation in the form of judicial action that would not be dispositive vis-à-vis trial but, rather, would seek to inform directly the pricing of claims in the settlement endgame.
Judicial Conference Approves More Free Access to Federal Court Documents
The National Law Journal's Blog of LegalTimes (BLT) reports here that the Judicial Conference voted to approve greater free access to federal court documents. Under the new rule, members of the public will be able to have free access to up to ten dollars worth of documents each quarter. Previously, the public was allowed free access to ten dollars worth of documents in an entire year. This means that 75% of PACER users will have free access, while high volume users will continue to be charged. In addition to the increased free access to documents through PACER, the Judicial Conference also voted to reduce the cost of obtaining digital recordings of certain court proceedings from $26 to a mere $2.40, and all federal courts that record their proceedings will be encouraged to make the recordings of their proceedings available for purchase.
March 16, 2010
Iqbal and Strange Bedfellows?
The Blog of the Legal Times is reporting an interesting development on the effort to legislatively overrule the Supreme Court's pleading decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly (see earlier coverage here, here, here, here, and here). The story Christian Group Joins Campaign on Pleading Standard begins:
"The conservative Alliance Defense Fund is lining up in opposition to a pair of U.S. Supreme Court decisions that changed the standard for filing most civil lawsuits — a move that aligns the Christian litigation group with some unlikely allies."
For a copy of the Alliance Defense Fund's letter to Senate Judiciary Committee Chair Patrick Leahy, see here.
(Hat Tip: How Appealing)
Spottswood on Hearings
Mark Spottswood (Northwestern) has posted on SSRN his article Hearings. Here's the abstract:
This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared - but false - assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review a paper transcript of the testimony. Witness presence, in other words, may often harm, rather than improve, the accuracy of credibility assessments. The fact that legal actors value hearings for mistaken reasons does not mean that hearings have no value, but it does raise the concern that hearings will be employed when they are unneeded or even harmful, especially given the lack of available guidance on this question. In this article, I attempt to remedy this problem by providing a sound set of guiding principles concerning both the utility and the harms of live hearings.
Hearings will often, but not always, do more harm than good. In addition to the fact that demeanor cues generally impair, rather than aid, credibility judgments, there are a number of cognitive biases that may arise from having one’s first impressions of a witness be visual and auditory impressions. These include a persistent human tendency to trust or distrust witnesses based on their physical attractiveness, their social status, their race, or other features that may make them similar to, or different than, the fact-finder. On the flip side, hearings may help a judge make sense of confusing evidence. In addition, live hearings often feel fairer to participants than paper-based decisions, due in large part to the desire to have expressive input in decisions that affect us. And sometimes, a live hearing may be preferable for reasons of cost or practicality.
March 15, 2010
Nash on Instrument Choice in Federal Jurisdiction
Jonathan Remy Nash (Emory University) has posted Instrument Choice in Federal Jurisdiction: Rules, Standards, and Discretion to SSRN.
Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but they have not recognized the relationship to the rule-standard distinction, nor more importantly have they considered the importance of where discretion enters the jurisdictional calculus. In this Article, I argue that predictability and efficiency make it normatively desirable to have rules predominate jurisdictional boundaries, and thus to leave standards – through discretion – to dominate the landscape of abstention. I also argue that the effect of a standard-based jurisdictional boundary may be substantially replicated – to the extent that the metric is the ultimate question of whether the case will be heard in federal court – by having a rule determine the jurisdictional boundary and then giving the federal court discretion to abstain from exercising that jurisdiction, where the courts’ discretionary standard for abstention in the second setting closely resembles the standard used to define the jurisdictional boundary in the first setting. Given this substantial equivalence, migration of the standard from the jurisdictional boundary to abstention is normatively desirable.
Health Care Reform's Fate Hinges on Civil Procedure "Whiz"
This weekend's New York Times piece Parliamentarian in Role as Health Bill Referee begins with the following story from Alan S. Frumin's law school days:
"To his classmates, one trait stood out. He was a whiz at mastering the mind-numbing rules of civil procedure. Today, Mr. Frumin puts his procedural acumen to use as the parliamentarian of the United States Senate."
(Hat Tip: Suzanna Sherry)