Saturday, 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:

This paper explores SB 1070, the 2010 Arizona law creating several new immigration-related crimes in the Arizona code and imposing a set of duties on Arizona law enforcement agencies and officers, some enforceable by private suit. We lay out the main features of the statute, show how they fit in to current Arizona and federal law, and are in many respects novel. We also explore some of the interpretive and constitutional issues presented by particular sections of the law. 

We emphasize that our views are necessarily preliminary. To understand this bill requires the expertise of one half of a law school faculty, since issues arise about both structural and substantive constitutional law, immigration law, criminal law, criminal procedure, state and local government law, and other fields. Further, SB 1070 includes many provisions whose interpretation is open to a range of interpretations. Accordingly, we invite comments and rejoinders to this analysis.


July 24, 2010 in Current Affairs, Federal Courts, In the News, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, 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.


July 23, 2010 in Recent Scholarship | Permalink | Comments (0)

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 23, 2010 in Class Actions, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, 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.


July 22, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

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 22, 2010 in Federal Courts, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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.


July 21, 2010 in Discovery, Federal Courts, Mass Torts, MDLs | Permalink | Comments (0)

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:

On data supplied by five Dutch insurers for the years 2001-2006, the authors analyse the development of hourly fees charged by attorneys and other legal representatives (claims agents) in personal injury cases. The analysis focuses on cases that did not go to court but where, according to Dutch law, a fee shifting rule applies: that is, the (insurer of the) losing party must pay the costs of the winner's legal assistance. One may expect that such a fee shifting rule would to some extent restrict competition in the market. The data indeed appear to suggest that in the Netherlands fees of personal injury lawyers have increased rather dramatically in recent years: more than double price and wage inflation, and much more than the fees of, for example, a trustee in bankruptcy. We offer some explanations for this based on the well-known law and economics literature. Although the fee increase we found may indeed be related to the Dutch fee shifting rule, the data we collected (which all relate to recent years) did not allow us to make a sufficiently robust connection between the two. They do, however, provide a rare and valuable insight into modern personal injuries practice in the Netherlands.


July 21, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, 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)


July 19, 2010 in Recent Scholarship | Permalink | Comments (0)

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:

It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our procedural system has developed a virtually unwavering practice as to discovery cost allocation which has never been rationalized or justified. 

In this article, we argue that had those who adopted the Rules in the first instance actually given appropriate thought to the issue, they would have realized how counterintuitive the choice to leave discovery costs on the producing party actually is. We reach this conclusion on several grounds. Initially, discovery costs are properly viewed as a form of quantum meruit: the producing party is incurring costs not for his own benefit, but solely to benefit the discovering party, who reasonably expects this benefit to be conferred on him. Viewed in this manner, discovery costs are a classic case for precepts of quasi-contract, which are designed to prevent injustice. Secondly, principles of economic efficiency dictate a presumption in favor of imposing costs on the discovering party, because that party is “the cheapest cost avoider.” In other words, he is in the best position to determine whether particular discovery is necessary in light of its costs. When discovery costs are imposed on the producing party, an externality is created for the requesting party, who lacks any incentive to make economically efficient discovery choices. Finally, we argue that principles of constitutional due process dictate that the discovering party, rather than the responding party, pay for discovery costs, at least where the defendant is the responding party. Otherwise, a defendant will be required to pay a benefit to the plaintiff on the basis of nothing more than plaintiff’s unilateral, unproven allegations of liability. 

We recognize that it is, as a practical matter, too late in the day to expect a reversal of the cost allocation presumption. However, we hope that by returning to what should have been recognized as the relevant first principles at the time of the Rules’ origination, we will have encouraged modern day courts to be more willing to consider requests to shift costs to the requesting party.


July 19, 2010 in Discovery, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)