Civil Procedure & Federal Courts Blog

NYT: "Lawyers Use Humor to Plead Case"

No, this New York Times story is not about a new strategy for complying with federal pleading standards. It's about unconventional law firm ads, including the following (links to YouTube):

"Machete"

"Power"

--A

(Hat Tip: Roger Baron)

Parau on Judicial Independence in Post-Communist Eastern Europe

Christina E. Parau (University of Oxford Centre for Socio-Legal Studies) has posted "Beyond Judicial Independence?  What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?" on SSRN.

The abstract states:

The judiciary is a high-impact institution which affects social well-being as well as economic development. Following the fall of Communism, most of the countries in Central and Eastern Europe (CEE) undertook judicial reforms, spurred in part by the conditionality of accession to the EU. What have been the actual outcome(s) of these reform efforts? Have judiciaries in CEE remained subservient to the State, or have they come to exercise uncontrollable power, i.e. ‘supremacy’, over the democratically elected political powers? Has a third possibility, the co-equality of the judicial with the political branches, been seriously considered?

The argument is divided into a theoretical/normative and an empirical part. The theoretical part develops the typology about the relationships that can exist between the judiciary and the elected branches of government and their consequences. The empirical part examines in more detail the type of judiciary that has emerged in post-Communist Romania, assessing and explaining the major judicial reform of 2003-2004 which empowered the Constitutional Court; eliminated recurs in anulare, a mechanism which the Executive could have used to check and balance the judiciary; and greatly empowered and made autonomous the Judicial Council, the putative constitutional guardian of judicial independence. The evidence presented strongly suggest that a particular type of relationship between the judiciary and the other powers of government, which I have labelled 'vicious supremacism' is in process of taking root in the CEE. This outcome has been the result of both external pressures, especially exercised by the EU, and domestic motives.

~clf

Recent Articles on Twombly/Iqbal

Here are some recent articles on pleading standards under Ashcroft v. Iqbal and Bell Atlantic v. Twombly:

Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Florida L. Rev. 1 (2010) 

Stephen Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. (forthcoming 2010) 

Stephen Brown, Correlation Plausibility: A Framework for Moving to Fair Pleading in the Post-Twombly and Iqbal World (on SSRN) 

Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 Nebraska L. Rev. 261 (2009) 

--A

Gender theory and bellwether trials

In a In a recent article in Law 360 on Iqbal and the NuvaRing MDL, I came across the following sentence:

Hopefully this litigation can now proceed through preparation of cases and bellmare trials. (We use bellmare, as the wether is a male goat, and bells were often put on the lead cow.)

I approve!

RJE

SCOTUS on Intervention: South Carolina v. North Carolina

No doubt most of today's SCOTUS-related attention is on the 183-page decision in Citizens United v. FEC. But our readers may be even more interested in yesterday's decision in South Carolina v. North Carolina, which involves that favorite of proceduralists--intervention.

This case is an original action before the Supreme Court, and the issue was whether three nonstate entities (the Catawaba River Water Supply Project, Duke Energy, and the City of Charlotte) should be allowed to intervene. Answer: the first two may intervene; Charlotte may not. The Court was sharply divided, and it's one of the more unusual 5-4 splits you're likely to see. Alito wrote for the majority, joined by Stevens, Scalia, Kennedy, and Breyer. Roberts dissented (in part), joined by Thomas, Ginsburg and Sotomayor (they would have denied intervention to all three).

As footnote 8 of the Court's opinion indicates, Rule 24 does not formally govern original actions like this one--the Federal Rules of Civil Procedure are merely "to be taken as 'guides' to procedure in original actions."

--A

Ford on Peremptory Challenges

Roger A. Ford (Covington & Burling) has posted "Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts" on SSRN.  It will be published in the George Mason Law Review.

The abstract states:

Although proponents argue that peremptory challenges make juries more impartial by eliminating “extreme” jurors, studies testing this theory are rare and inconclusive. For this article, two formal models of jury selection are constructed, and various selection procedures are tested, assuming that attorneys act rationally rather than discriminate based on animus. The models demonstrate that even when used rationally, peremptory challenges can distort jury decision making and undermine verdict reliability. 
Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction - as empirical evidence suggests is usually the case - then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future. 
Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.

~clf

Garoupa & Ginsburg on Reputation and the Judiciary

Professor Nuno Garoupa (University of Illinois College of Law) and Professor Tom Ginsburg (University of Chicago Law School) have posted "Reputation, Information and the Organization of the Judiciary" on SSRN.  It will be published in the Journal of Comparative Law.

The abstract states:

The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources. We analyze reputation and make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges, who famously lack the purse or the sword. Our second claim is that reputation can be divided into individual and collective components. Individual reputation provides information about individual performance whereas collective reputation provides information about the quality of the judiciary in general. We use the economics of team production to analyze the relationship between individual and collective reputation. Third, different legal systems configure institutions in different ways in order to address the problem of information and reputation. This is what we refer to as the industrial organization of the judiciary. The classical understandings of the common law and civil law judiciaries can be seen as sets of linked institutions that are mutually supportive in addressing the problem of information and reputation.

~clf

Symposium announcement: Law and the Morality of Punishing Collective Entities

On February 5, 2010 from 9:00 A.M. - 4:15 P.M., Brooklyn Law School will host its David G. Trager Public Symposium.  The topic this year is Sharing the Blame: The Law and Morality of Punishing Public Entities.

About the Program

This Symposium will discuss the nature, ethics, and law of imposing punishment on collective entities. Does it make sense to impose blame on a group as a group, as opposed to its individual members? Even if blame is appropriate, how do we decide the proper form and amount of punishment? How do we even conceive of a group as having its own independent existence or identity? The answers to these questions have significant implications for the scope and enforcement of criminal law. Over the course of several panels, the Symposium will seek to derive broad general insights from various academic disciplines and will consider the practical legal applications of those findings. It will address the psychological processes that lead people to treat groups as having independent existence, and the moral and philosophical consequences of doing so. Later discussion will apply these lessons to the specific legal context of corporate crime.

Panelists include Miriam Baer, Jayne Barnard, Michael Cahill, Meir Dan-Cohen, James Fanto, John Hasnas, Peter Henning, Bertram Malle, Leonard Orland, Steven Sherman, Marion Smiley, Lawrence Solan, Hon. David G. Trager, and Tom Tyler.

RJE

Hot Off the Presses: Recent Articles of Interest

With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Scott E. Atkinson, Alan C. Marco and John L. Turner, The Economics of a Centralized Judiciary: Uniformity, Forum Shopping, and the Federal Circuit, 52 J.L. & Econ. 411 (2009)

Lon A. Berk, Some Logical Limits of E-discovery, 12 SMU Sci. & Tech. L. Rev. 1 (2008)

Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447 (2009)

Daniel Ryan Koslosky, Toward an Interpretive Model of Judicial Independence: A Case Study of Eastern Europe, 31 U. Pa. J. Int'l L. 203 (2009)

Justin R. Long, Against Certification, 78 Geo. Wash. L. Rev. 114 (2009)

Craig M. Reiser, Comment, The Unconstitutional Application of Summary Judgment in Factually Intensive Inquiries, 12 U. Pa. J. Const. L. 195 (2009)

Alexis N. Simpson, Note, The Monster in the Closet: Declawing the Inequitable Conduct Beast in the Attorney-client Privilege Arena, 25 Ga. St. U. L. Rev. 735 (2009)

--A

Ahdieh on Paulsen on International Law in U.S. Courts

Now available on SSRN is a recent Yale Law Journal Online piece by Prof. Robert Ahdieh (Emory), The Fog of Certainty. Here's the abstract:

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.

These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war - with its attendant distortions and misperceptions - is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.

--A

Scholarship round-up: comparative law and judging

Three articles recently posted to SSRN address issues of judging in a comparative or non-U.S. context.

Judicial Independence in East Asia: Implications for China, Female Justices, Feminism and the Politics of Judicial Appointment: A Re-examination, and Appointment of Judges in Higher Judiciary: An Interpretational Riddle.

Abstracts after the jump.

Tom Ginsburg (University of Chicago Law School) Judicial Independence in East Asia: Implications for China

This chapter explores the experience of China’s East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China’s own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and because many of them developed their judicial systems during periods of authoritarian governance. Finally, the East Asian cases, like contemporary China, seem to challenge the conventional wisdom that a powerful legal system is necessary for sustained economic development. My argument is that these cases provide nuanced lessons for the Chinese case about the definition of and conditions for judicial independence.

Rosalind Dixon (University of Chicago Law School) Female Justices, Feminism and the Politics of Judicial Appointment: A Re-examination
In recent years, feminists in the United States have consistently advocated for the appointment of more female justices to the Supreme Court. Given the records of Justices O’Connor and Ginsburg on the Court and broader empirical findings below the Supreme Court level showing a relationship between a judge’s gender and her voting behavior, feminists have argued that, from a feminist perspective, the appointment of new female justices to the Court is likely to offer significant substantive, as well as symbolic, benefits. This Article challenges such feminist orthodoxy by showing that it is based on a mistaken view of existing empirical data on judicial behavior and its likely future predictive value. The article shows how, from both a quantitative and qualitative perspective, the current literature on judicial behavior in fact reveals little if any meaningful connection between a judge’s gender and her pro-feminist views, in a jurisprudential sense. By drawing on comparative experience in Canada, which between 2005 and 2008 had a female majority on its Supreme Court, the Article also shows how any female-feminist connection previously evident in the United States, particularly at a Supreme Court level, is unlikely to endure in the future, given changes in the kind and degree of discrimination experienced by female justices prior to appointment. Consequently, the Article also calls for a change in strategy on the part of feminists to focus more directly on the demonstrated jurisprudential commitments, rather than on the gender, of future judicial nominees.

Neeraj Tiwari (Indian Law Institute, New Delhi), Appointment of Judges in Higher Judiciary: An Interpretational Riddle
This paper deals with the Constitutional framework for the appointment of judges in high court and the Supreme Court in India. The framework consists of a 'consultative' process between the Executive and the Judiciary. For the first four decades, after the framing of the Constitution, this practice was followed in a decent manner with only two or three exceptions. But after the Second Judges Case in 1993, the Supreme Court do away with the existing consultative process and evolved a new system for appointment of judges in the higher Judiciary, namely "Collegium". In this system a pannel of Chief Justice of India along with two seniormost Judges of the Supreme Court (in Third Judges Case this requirement was inhanced from two to four seniormost judges) recommends the appointment of a judge. But the recent episodes revealing the incompetency and irregularity of the collegium system. the Law Commission of India, in its 214th Report has also shown deep concern on the working of the collegium and recommended for reconsideration. This paper will take up all these issues in detail.

RJE

Dodson on New Pleadings & Discovery

Professor Scott Dodson (William & Mary School of Law) has posted "New Pleadings, New Discovery" on SSRN.

The abstract states:

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is in the hands of defendants. New Pleading thus screens out these claims even though they may have merit. This article offers a solution to New Pleading's problems of information asymmetry: New Discovery. New Discovery recognizes the need for limited presuit or pre-dismissal discovery to provide plaintiffs the opportunity to gather the facts necessary to comply with New Pleading's strictures. The article presents a normative defense of New Discovery, offers some guiding principles and tools for controlling its scope and cost, and explores how New Discovery might work both under the current discovery scheme and in the context of needed discovery reforms.

~clf