May 14, 2010
Stories of interest in the current U.S. Law Week
The current issue of U.S. Law Week includes the following stories:
(1) Twombly, Iqbal Introduce More Subjectivity To Rulings on Dismissal Motions, Judge Says (78 U.S.L.W. 2667) reports on a discussion of Twombly and Iqbal that occurred at a recent meeting of the ABA Litigation Section.
(2) Federal Law Includes Permissive Claims Within Supplemental Jurisdiction Definition (78 U.S.L.W. 1699) reports on a recent First Circuit decision (Global NAPs Inc. v. Verizon New England Inc., No. 09-1308, 2010 WL 1713240, 2010 U.S. App. LEXIS 8929) that applies the supplemental jurisdiction statute (28 U.S.C. § 1367) to counterclaims.
Gender Hierarchies in Law Firms
Although this is not technically a civ pro or fed courts article, it really captured my interest as regards law practice:
The academic literature which addresses the creation and transformation of large law firms seldom mentions the presence of legal secretaries. Likewise works which discuss women attorneys and even issues of gender in such firms also neglect women secretaries to the point that one might conclude that female lawyers are the only women at large law firms. Such absence of legal secretaries, the vast majority who are women, reproduces law firm hierarchies in which attorneys are deemed to matter and to be of importance in understanding the legal profession and law firm dynamics while secretaries remain invisible. Given the lack of secondary literature on legal secretaries in large law firms, much of this article is based upon legal secretaries’ responses to a nation-wide survey which I conducted in 2009. Using such data, along with other primary sources, the article examines how legal secretaries’ roles and work have changed during the past fifty years, why women decide to become legal secretaries, their level of satisfaction, the work/ family conflicts they experience, how the recent financial crisis has affected them, and the complicated relationships that they have with attorneys, especially women attorneys. Moreover, the most significant scholarship on secretaries has depicted the secretary/boss relationship as one of a personal and domestic nature – what we might call the “second-wife” or “office wife syndrome.” Yet what does this mean in a culture in which the very meaning of “wife” is changing and unstable and where legal secretaries now work for a multiple attorneys, including women lawyers.
May 13, 2010
Decision of Interest on Twombly/Iqbal and Pleading Standards
The Second Circuit's recent decision in Arista Records LLC v. Doe 3, No. 09-0905, 2010 WL 1729107, 2010 U.S. App. LEXIS 8879 (2d Cir. Apr. 29, 2010), may prove to be a very significant one as federal courts continue to struggle with federal pleading standards after Twombly and Iqbal.
The opinion emphasizes that Twombly and Iqbal have not set aside fundamental aspects of the pre-Twombly regime, noting their consistency with the Supreme Court's 2002 decision in Swierkiewicz v. Sorema N.A. and Twombly's endorsement of the "fair notice" standard from Conley v. Gibson:
First, the notion that Twombly imposed a heightened standard that requires a complaint to include specific evidence, factual allegations in addition to those required by Rule 8, and declarations from the persons who collected the evidence is belied by the Twombly opinion itself. The Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (other internal quotation marks omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 512, (2002) (holding that, at the pleading stage, an employment discrimination plaintiff who alleges facts that provide fair notice of his claim need not also allege “specific facts establishing a prima facie case,” for such a “heightened pleading standard ... conflicts with Federal Rule of Civil Procedure 8(a)(2)”). The Twombly Court stated that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” but mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do”; rather, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555 (emphasis added), i.e., enough to make the claim “plausible,” id. at 570....
Concluding that the complaint before it failed to state a plausible claim, the Twombly Court stated that “[i]n reaching this conclusion, we do not apply any ‘heightened’ pleading standard,” id. at 569 n. 14 (emphasis added). Rather, it emphasized that its holding was consistent with its ruling in Swierkiewicz that “a heightened pleading requirement,” requiring the pleading of “‘specific facts' beyond those necessary to state [a] claim and the grounds showing entitlement to relief,” was “impermissibl[e],” Twombly, 550 U.S. at 570....
Nor did Iqbal heighten the pleading requirements. Rather, it reiterated much of the discussion in Twombly and rejected as insufficient a pleading that the IqbalCourt regarded as entirely conclusory.
The Second Circuit also writes: "The Twombly plausibility standard, which applies to all civil actions, see Iqbal, 129 S.Ct. at 1953, does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant, see, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.2008), or where the belief is based on factual information that makes the inference of culpability plausible." (emphasis added). The use of the word "or" in this sentence suggests that "where facts are peculiarly within the possession and control of the defendant," a plaintiff may allege facts upon information and belief even if the complaint lacks "factual information that makes the inference of culpability plausible."
For additional coverage of the Arista Records decision, see the Federal Civil Practice Bulletin.
Junior Faculty Federal Courts Workshop Announcement and Call for Papers
The University of Illinois has posted an announcement and call for papers for the Third Annual Junior Faculty Federal Courts Workshop here.
Here is an excerpt from the announcement:
The University of Illinois College of Law is pleased to announce that the Third Annual Junior Faculty Federal Courts Workshop will take place at the Club Quarters, Centrol Loop, 111 W. Adams St., Chicago, IL on October 7-8, 2010. . . .
The workshop pairs junior and senior, federal courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop areRichard Freer (Emory School of Law), Jim Pfander (Northwestern Law School), Martin Redish (Northwestern Law School), and Louise Weinberg (University of Texas School of Law).
. . .
The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course. Those who do not currently hold a faculty appointment but expect that they will during the 2011-2012 academic year are also welcome. There is no registration fee for this conference.
More information, including registration information, can be found here.
[H/T: Jamelle Sharpe]
May 12, 2010
Elena Kagan's Civil Procedure Paper Trail
Readers interested in Supreme Court nominee Elena Kagan's views on civil procedure might want to take a look at her student note: Certifying Classes and Subclasses in Title VII Suits, 99 Harv. L. Rev. 619 (1986). (See SCOTUSblog for a more complete list of her publications.)
General Kagan's note examines the then-prevailing approaches to determining whether an employment discrimination class action under Title VII complies with FRCP 23(a). She concludes:
"Each of the traditional approaches to certification of title VII classes fails to take into account important values. The unity-of-interest approach slights the value of enforcing substantive law; the across-the-board approach neglects the value of observing procedural norms. A proper approach to the certification of title VII classes will attempt to accommodate these values and to mitigate the conflict between them. No perfect reconciliation will be possible: the recognition of the one value will inevitably burden to some degree the other. The task for courts is to find the approach that will best accommodate the values at stake and thereby best protect the rights of victims of discrimination. The subclassification of broad title VII classes provides that approach. Subclassification adequately protects absent class members and yet responds to the classwide and systemic nature of employment discrimination. The technique thus makes the class action device a reliable vehicle for the assertion and vindication of minority rights."
For those interested in what the nominee was like as a civil procedure professor, see this post on Above The Law ("Elena Kagan and Me: One Semester of Civ Pro With the New SCOTUS Nominee").
Steinitz on Third Party Litigation Funding
Maya Steinitz (Columbia University) has posted Whose Claim is this Anyway? Third Party Litigation Funding to SSRN.
Third party litigation funding, or litigation finance, is a new industry composed of institutional investors who invest in litigation by providing finance in return for an ownership stake in a legal claim and a contingency in the recovery. Its emergence has been recognized as one of the most significant developments in civil litigation today. It will transform access to justice, and affect numerous areas of the law including corporate law, torts, intellectual property, environmental law, employment law and international law. Hailing from the U.K. and Australia, the practice is de facto prohibited in the U.S., largely through ethical rules disallowing champerty and fee-sharing among lawyers and non-lawyers. But market forces, including pressure exerted on U.S. law firms by overseas competitors with access to funding, are propelling the penetration of the industry into the U.S.
This article is among the first to address litigation finance by institutional investors in the U.S. It describes the empirical reality of the industry; identifies and addresses the emergence of a secondary market in legal claims and the prospect of securitization of legal claims; discusses third party funding of international arbitration and; applies a bargaining analysis to understanding the systemic effects of the practice. Specifically, the article asks what happens when, through litigation funding, litigation ceases to be expensive and uncertain and when parties “bargain in the shadow of financing.” Using bargaining theory the article offers a three-step argument for a move away from a prohibition of litigation funding towards nuanced regulation of the industry. First, it argues that the desirability of litigation funding cannot be assessed if viewed monolithically. Therefore, a taxonomy of funded litigations is offered. Second, applying a bargaining analysis to each type of funded litigation, the article argues that the practice could radically alter the social function of courts by systemically equalizing the ability of society’s “have-nots” to use the courts to affect rule change via litigation. This is in contrast to the court system serving (unwittingly, perhaps) as the guardian of the status quo in favor of society’s “haves.” Third, the bargaining analysis reveals the agency problems and moral hazards that may arise due to the development of secondary markets in legal claims as well as other features of litigation finance and which should be addressed through regulation. The article concludes with a five-pronged framework for the suggested regulatory regime that regulators, legislators and the Bench can devise and contract design features parties seeking litigation funding and their lawyers can employ.
May 10, 2010
Jordan on Local Rules and Trans-Territorial Procedure
Samuel Jordan (St. Louis University) has posted Local Rules and the Limits of Trans-Territorial Procedure to SSRN.
Local rules have been unfairly cast as procedural villains. Their qualifications for the role are purportedly numerous, but chief among them is that they violate a fundamental principle embedded in our post-1938 procedural regime: that the procedural rules applied in a federal case should not be sensitive to location. It must of course be conceded that local rules do produce territorial variations in procedure. But in practice, the principle of trans-territoriality is aspirational, and is undermined by an array of factors – ranging from competing interpretations of written rules to the supplementation of those rules through exercises of inherent power – that inevitably contribute to location-based variations in the actual procedural requirements imposed in federal cases. Properly situated, local rules are not an outlier, but are merely one form of territorial variation among many. To assess local rules, therefore, we should not ask whether they produce territorial variation, but instead whether a procedural regime that permits them produces a better mix of territorial variation than one that does not. When viewed this way, local rules emerge as attractive – if not quite heroic – because they are transparent, they reflect participation by non-judicial actors, and they promote intra-district equality in the treatment of cases.
Hot Off The Presses: Recent Articles of Interest
With hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Walter W. Heiser, Due Process Limitations on Pre-Answer Security Requirements for Nonresident Unlicensed Insurers, 88 Neb. L. Rev. 494 (2010)
Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 46 Hous. L. Rev. 1379 (2010)
Kenneth S. Klein, Is Ashcroft v. Iqbal the Death (Finally) of the "Historical Test" for Interpreting the Seventh Amendment? 88 Neb. L. Rev. 467 (2010)
Russell A. Miller, Clinton, Ginsburg, and Centrist Federalism, 85 Ind. L.J. 225 (2010)
Sarah Miller, Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention, 20 Eur. J. Int'l L. 1223 (2009)
Briane Nelson Mitchell, Judge Anderson and the Seventh Amendment Right to Jury Trial, 46 Idaho L. Rev. 65 (2009)
Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49 (2010)
Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. Wash. L. Rev. 237 (2010)
Hon. Richard A. Posner, Some Realism About Judges: A Reply to Edwards and Livermore, 59 Duke L.J. 1177 (2010)
Tiana Leia Russell, Exporting Class Actions to the European Union, 28 B.U. Int'l L.J. 141 (2010)
Elizabeth Herbst Schierman & Katie Ball, Civil Procedure in Idaho: An Examination of Significant Differences Between the Rules of Procedure of the Idaho State and Federal Courts, 46 Idaho L. Rev. 13 (2009)
Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95 (2010)
Deirdre M. Smith, The Disordered and Discredited Plaintiff: Psychiatric Evidence in Civil Litigation, 31 Cardozo L. Rev. 749-822 (2010)
A. Benjamin Spencer, The Restrictive Ethos in Civil Procedure, 78 Geo. Wash. L. Rev. 353 (2010)
Jeffrey W. Stempel, Playing Forty Questions: Responding to Justice Roberts's Concerns in Caperton and Some Tentative Answers About Operationalizing Judicial Recusal and Due Process, 39 Sw. L. Rev. 1 (2009).
Symposium. A Tribute to the Honorable Betty Binns Fletcher. Tribute By Judge William A. Fletcher; Articles By Judge William C. Canby, Jr.; Articles By Thomas D. Rowe, Jr., Norman W. Spaulding, Kenneth S. Weiner, Aaron H. Caplan And Ellyde Roko. 85 Wash. L. Rev. 1-129 (2010)
Jonathan Scott Baker, Note, The Use of Sentencing Findings as a Collateral Estoppel Weapon in Subsequent Civil Litigation, 85 Notre Dame L. Rev. 713 (2010)
S. Ben Barnes, Note, Voluntary Dismissal in Ohio: A Tale of an Ancient Procedure in a Modern World, 57 Clev. St. L. Rev. 921 (2009)
Ronald R. Darbee, Comment, Personal Jurisdiction as a Defense to the Enforcement of Foreign Arbitral Awards, 41 McGeorge L. Rev. 345 (2010)
Lauren A. Dellinger, Student Article, Corporate Social Responsibility: A Multifaceted Tool to Avoid Alien Tort Claims Act Litigation While Simultaneously Building a Better Business Reputation, 40 Cal. W. Int'l L.J. 55 (2009)
Brook Detterman, Note, Rumors of Conley's Demise Have Been Greatly Exaggerated: The Impact of Bell Atlantic Corporation v. Twombly on Pleading Standards in Environmental Litigation, 40 Envtl. L. 295 (2010)
Kevin Harrington, Student Article, Got Sanctioned! An Appropriate Standard for Federal Rule of Civil Procedure 11, 9 Appalachian J.L. 1 (2009)
David Noland, Note, Finding Fault with Defaults: New York Courts' Inconsistent Application of Issue Preclusion to Default Judgments, 31 Cardozo L. Rev. 941 (2010)
Sean A. Smith, Note, Too Much Risk: The Impact of Class Action Lawsuits on Claims Made Insurance Policies, 74 Mo. L. Rev. 1171 (2009)
Jonathan Wang, Comment, Securities Pirates: Why a More Expansive Basis for Jurisdiction over Transnational Securities Fraud Will Prevent the United States from Turning into the Barbary Coast, 62 Admin. L. Rev. 223 (2010)
Eichhorn on Metaphor in Iqbal
Professor Lisa A. Eichhorn (University of South Carolina School of Law) has posted "A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal" on SSRN. It will be published in the Florida Law Review.
The abstract states: