July 24, 2010
Analysis of the Controversial Arizona Immigration Law
Since some of the provisions of Arizona Senate Bill 1070 (the controversial Arizona immigration statute) implicate federalism issues, you might find "Arizona Senate Bill 1070: A Preliminary Report" of interest. It has been posted on SSRN by its authors: Professors Gabriel J. Chin (University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy), Carissa Byrne Hessick (Arizona State University Sandra Day O'Connor College of Law), Toni M. Massaro (University of Arizona James E. Rogers College of Law), and Marc L. Miller (University of Arizona James E. Rogers College of Law).
The abstract states:
July 23, 2010
Bray on Preventative Litigation
Samuel Bray (Stanford Law School) has posted Preventative Adjudication to SSRN.
This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases - what is here called “preventive adjudication.” In this category of cases, courts offer opinions without any “command” to the parties, and these opinions are meant to avoid future harm, not remedy past harm. Despite receiving little attention in the legal literature, preventive adjudication is pervasive throughout law. It happens in declaratory judgment actions about wills, patents, and unconstitutionally vague statutes; in paternity and maternity petitions; in petitions to have missing persons declared dead; in boundary disputes; in actions to quiet title. This Article explains what preventive adjudication is and how it should and should not be used.
Preventive adjudication is intuitively appealing, because it helps people avoid harm and clarifies the law. But there are downsides to deciding cases in advance instead of waiting for remedial adjudication. The argument for preventive adjudication is therefore a qualified one. This Article identifies not only the merits of preventive adjudication but also the crucial limiting principles. One limiting principle is administrative and error costs; another is the adequacy of discounting, i.e., taking into account the uncertainty of future events. People discount for many kinds of uncertainty, and discounting is usually adequate for uncertainty caused by law. But discounting is inadequate when the law causes uncertainty about inescapable threshold questions for human behavior, such as legal parenthood, citizenship, marital status, or death. Discounting is also inadequate for uncertainty about property rights, because uncertainty undermines the policy reasons for having property rules in the first place. Where discounting is inadequate, preventive adjudication is especially valuable.
This Article also shows how this normative understanding of preventive adjudication can be translated into the actual practice of courts in the United States. Legal systems in the United States have two ways of determining which cases should be decided by preventive adjudication: sometimes they rely on judicial discretion to decide if preventive adjudication is appropriate in each case (“retail sorting”); and sometimes they specify categories of cases in which preventive adjudication is available (“wholesale sorting”). An analysis of both approaches shows that wholesale sorting - which is common in state courts but almost unknown in federal courts - better aligns the actual practice of preventive adjudication with the cases in which it is justifiable.
Decision of Interest on the Class Action Fairness Act (CAFA)
This week the Eleventh Circuit issued a decision interpreting 28 U.S.C. § 1332(d), the new form of diversity jurisdiction created by the 2005 Class Action Fairness Act (CAFA). In Cappuccitti v. DirecTV, Inc., No. 09-14107, ___ F.3d ___, 2010 WL 2803093, 2010 U.S. App. LEXIS 14724 (11th Cir. July 19, 2010), the court holds that even if the class action’s aggregate amount-in-controversy exceeds § 1332(d)’s $5,000,000 requirement, CAFA diversity jurisdiction is available only if at least one class member’s claim exceeds the $75,000 threshold required for ordinary diversity jurisdiction under 28 U.S.C. § 1332(a). From the opinion:
We hold that in a CAFA action originally filed in federal court, at least one of the plaintiffs must allege an amount in controversy that satisfies the current congressional requirement for diversity jurisdiction provided in 28 U.S.C. § 1332(a). . . . If we held that § 1332(a)'s $75,000 requirement for an individual defendant did not apply to § 1332(d)(2) cases, we would be expanding federal court jurisdiction beyond Congress's authorization. We would essentially transform federal courts hearing originally-filed CAFA cases into small claims courts, where plaintiffs could bring five-dollar claims by alleging gargantuan class sizes to meet the $5,000,000 aggregate amount requirement. While Congress intended to expand federal jurisdiction over class actions when it enacted CAFA, surely this could not have been the result it intended.
(Hat Tip: Jay Tidmarsh)
July 22, 2010
Maxeiner on Pleading, Access & Iqbal
Professor James Maxeiner (Baltimore) has posted on SSRN his article, Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, a Day in Court and a Decision According to Law, 114 Penn State L. Rev. ___ (forthcoming 2010). Here’s the abstract:
The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.
Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according to law. Pleadings are, however, only part of the process of determining rights and of applying law to facts. They cannot do it all. Their utility is limited by the interdependent nature of determining law and finding facts to apply law to facts.
The United States has had three principal systems of civil procedure; all three have failed. The United States has used three principal forms of pleading - common law pleading, fact pleading, and notice pleading; all three have proven in-adequate. None has achieved both accuracy and expedition; none has managed both fairness and efficiency. Although wildly different in what they have required of pleading, all three systems of civil procedure have shared common flaws: they have expected too much of lawyers and not enough of judges. They have allowed issue deciding to substitute for law applying.
Since 1877 Germany has had only one system of civil procedure; that system has worked well. It has stood the test of time. Its unchallenged and unchanged basic principle is that parties provide facts and courts apply law. Da mihi factum, dabo tibi jus. Parties and courts cooperate. Pleading is only the beginning of that cooperation. Pleading leads directly to a day in court. Pleading directs the court down the path to a decision according to law.
U.S. Appeals Court Tells State Department to Provide More Due Process to Alleged Foreign Terrorist Organizations
Professor Cindy Galway Buys (Southern Illinois University School of Law) posted this on the International Law Prof Blog:
On Friday, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling in which it ordered the U.S. State Department to provide more process to an organization, the Mojahedin-e Khalq Organization (MEK) (also called the People’s Mojahedin Organization of Iran (PMOI)), which is designated as a foreign terrorist organization (FTO) with the meaning of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), as amended. Under AEDPA, the Secretary of State may designate an entity as an FTO if she determines that (A) the entity is foreign, (B) it engages in “terrorist activity” or “terrorism” and (C) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). “Terrorist activity” is defined in section 1182(a)(3)(B)(iii) of the Act and includes hijacking, sabotage, kidnapping, assassination and the use of explosives, firearms, or biological, chemical or nuclear weapons with intent to endanger people or property, or a threat or conspiracy to do any of the foregoing. To “engage in terrorist activity” involves, among other acts, soliciting funds or affording material support for terrorist activities, id. § 1182(a)(3)(B)(iv), while “terrorism” means “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” 22 U.S.C. § 2656f(d)(2). Being designated an FTO means that the assets of the organization may be frozen, its members barred from entering the U.S., and its supporters criminally prosecuted.
PMOI challenged its designation as an FTO claiming that it had renounced violence, had handed over its weapons to U.S. authorities in Iran, and had provided extensive information and other cooperation to the U.S. authorities there. The Secretary of State rejected PMOI's request to be removed from the FTO list on the basis of both classified and unclassified information, but did not provide PMOI with access to any of the information or an opportunity to rebut the allegations prior to making the determination. PMOI claimed that the Secretary violated due process for failure to provide it with copies of at least the unclassified information upon which the decision was based and an opportunity to rebut that information. PMOI also challenged the Secretary of State's determination on the basis that it lacked substantial support in the record, but the Court did not reach that issue, deciding instead to remand the case to the lower court on the due process issue. The Court held that PMOI was entitled to access to the unclassfied documents and an opportunity to rebut the information before the Secretary's decision was finalized and made public.
While this decision is a victory for an organization seeking to revoke its designation as an FTO and for the rule of law generally, the Court was careful to emphasize its deference to the Executive Branch in many respects. It reiterated that the determination of what activities constitute a threat to the United States is a political question that is not judicially reviewable. The Court also stated that it would not second guess the Secretary's determinations with respect to the credibility of particular sources.
July 21, 2010
Discovery Order in Toyota MDL incorporates elements of parallel state and federal administrative investigations
The National Law Journal reports that the California federal judges hearing the Toyota MDLs has approved a new joint discovery plan.
Of interest to civ pro folks is the fact that the plan takes advantage of discovery and facts already prepared for cases pending in other states and from a federal administrative investigation:
In their joint discovery plan, the parties submitted 21 topics to be covered in depositions, including the location and access to documents and people associated with the electronic throttle control systems in Toyota vehicles -- specifically, documents in two state court cases in Michigan and California.
Discovery will include information about customer complaints and internal studies of sudden unintended acceleration, the whereabouts of electronic data recorders and Toyota's advertising, sales and public relations materials. Toyota must provide nonprivileged documents that it produced earlier this year to the National Highway Traffic Safety Administration, Congress and state attorneys general.
Philipsen & Faure on Fees for Personal Injury Claim Settlement in the Netherlands
Professor Niels J. Philipsen (Maastricht University Faculty of Law, Metro) and Professor Michael G. Faure (University of Maastricht Faculty of Law, Metro; Erasmus University Rotterdam School of Law) have posted "Fees for Claim Settlement in the Field of Personal Injury: Empirical Evidence from the Netherlands" on SSRN. It will be published in the Journal of European Tort Law.
The abstract states:
July 19, 2010
Hot Off The Presses: Recent Articles Of Interest
With a hat tip to the Current Index of Legal Periodicals, here are some recently published articles that might be of interest:
Casey R. Fronk, The cost of judicial citation: an empirical investigation of citation practices in the federal appellate courts, 2010 U. Ill. J.L. Tech. & Pol'y 51
Erin B. Kaheny, The nature of circuit court gatekeeping decisions, 44 Law & Soc'y Rev. 129 (2010)
Thomas O. Main, The procedural foundation of substantive law, 87 Wash. U. L. Rev. 801 (2010)
Tanya J. Monestier, Personal jurisdiction over non-resident class members: have we gone down the wrong road? 45 Tex. Int'l L.J. 537 (2010)
Peter Robinson, Settlement conference judge--legal lion or problem solving lamb: an empirical documentation of judicial settlement conference practices and techniques, 33 Am. J. Trial Advoc. 113 (2009)
Otto Sandrock, The choice between forum selection, mediation and arbitration clauses: European perspectives, 20 Am. Rev. Int'l Arb. 7 (2009)
Catherine M. Sharkey, Federal incursions and state defiance: punitive damages in the wake of Philip Morris v. Williams, 46 Willamette L. Rev. 449 (2010)
Steven Shavell, On the design of the appeals process: the optimal use of discretionary review versus direct appeal, 39 J. Legal Stud. 63 (2010)
Dawinder S. Sidhu, First Korematsu and now Ashcroft v. Iqbal: the latest chapter in the wartime Supreme Court's disregard for claims of discrimination, 58 Buff. L. Rev. 419 (2010)
Note, The Pakistani lawyers' movement and the popular currency of judicial power, 123 Harv. L. Rev. 1705 (2010)
Brandon M. Kimura, & Eric K. Yamamoto, Note, Electronic discovery: a call for new rules for the Hawai'i courts, 32 U. Haw. L. Rev. 153 (2009)
Redish & McNamara on Discovery Cost Allocation
Professor Martin H. Redish (Northwestern University School of Law) and Professor Colleen McNamara (Northwestern University School of Law) have posted "Back to the Future: Discovery Cost Allocation and Modern Procedural Theory" on SSRN.
The abstract states: