Friday, August 27, 2010

Spottswood on Live Hearings, Paper Trials

Prof. Mark Spottswood (Northwestern) has posted on SSRN his article Live Hearings and Paper Trials. Here’s the abstract:

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, 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 live testimony than if the judges were to review a paper transcript. 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 hearing have no value, but it does raise the concern that live procedure will be employed when it is unneeded or even counterproductive, 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 risks of live and paper-based fact-finding.

Live hearings and trials will often, but not always, do more harm than good. In addition to the fact that demeanor cues generally impair 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, live fact-finding may help a judge make sense of confusing evidence. In addition, in-court hearings may 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 occasionally, a live hearing or trial may be preferable for reasons of cost or practicality.

A better understanding of the costs and benefits of live fact-finding has profound implications for the design of our civil justice system. Our current approach relies on predominantly paper-based pre-trial fact-finding, followed in rare cases by a live trial process. Unfortunately, this system uses paper-based procedures at a point when live hearings may often be cheaper and more reliable, and then shifts to live examination once its benefits have evaporated and its costs are likely to be prohibitive. A preferable system would allow for more live hearings early in a case. Even when there is no direct credibility conflict, live proof at this stage may increase the legitimacy of rulings and may lower litigation costs, and will often be more reliable than the paper-based alternative of affidavit evidence. By contrast, rulemakers should be more willing to authorize - and judges should be more willing to use - paper trials at the final fact-finding stage of a dispute. At this late stage, live procedure will be expensive and unreliable, and as a result, it will be used so rarely that it will give little practical expressive opportunity for litigants. In short, we should reverse our present approach to civil-case fact-finding by holding more live pre-trial hearings and more paper trials.


August 27, 2010 in Recent Scholarship | Permalink | Comments (0)

Thursday, August 26, 2010

University of Idaho has faculty positions in Civ Pro

Here is the announcement: 

THE UNIVERSITY OF IDAHO COLLEGE OF LAW seeks to fill two entry-level, tenure-track faculty positions at its Moscow, Idaho campus beginning in the Fall of 2011 contingent upon approval of the positions by the University’s Board of Regents. Anticipated course needs include Constitutional Law, Administrative Law, Criminal Procedure, First Amendment, State Constitutional Law, Civil Liberties, Evidence, Professional Responsibility, Civil Procedure, and Remedies.  Applicants must have a JD from an ABA accredited school or the equivalent and must have a distinguished academic record and post J.D. practice, clerking and/or teaching experience. Applicants must show promise as excellent teachers and productive scholars.  Applications from individuals with a demonstrated commitment to legal education including prior law teaching experience and scholarship in their field will be preferred.  Situated in the beautiful Pacific Northwest, the University of Idaho is a comprehensive research institution that is enriched by its proximity to Washington State University.  Information about the College of Law is available on its website at persons should either apply online at or send a letter of application and resume listing three references by regular mail or email  to Elizabeth Brandt, Professor and Associate Dean for Faculty Affairs,  Chair, Faculty Appointments Committee, University of Idaho, College of Law, PO Box 442321, Moscow, Idaho 83844-232, .   The Committee will begin reviewing applications on September 15, 2010 and will continue until the position is filled.  Priority will be given to applications received before November 1, 2010.  The University of Idaho is an affirmative action, equal opportunity employer.  The University of has an institution-wide commitment to diversity, human rights, multiculturalism and community.  It expresses that commitment by actively recruiting and retaining a diverse workforce and student body, and by building and sustaining a welcoming, supportive campus environment. 

August 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Kansas Attorneys Have More Fun

On the homepage for the District of Kansas, I found this announcement for the 10th Circuit Bench and Bar conference which will feature a Second(!) Biannual Kansas Karaoke Night.

I approve!


August 26, 2010 in In the News | Permalink | Comments (1)

Nagareda on Class Certification and Dukes v. Wal-Mart

Prof. Richard Nagareda (Vanderbilt) has posted on SSRN his essay, Common Answers for Class Certification, which is forthcoming in the Vanderbilt Law Review En Banc. Here's the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines.

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.


August 26, 2010 in Class Actions, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, August 25, 2010

Skinner on International Law Violations and "Arising Under" Jurisdiction

Professor Gwynne Skinner (Willamette University College of Law) has posted "When Customary International Law Violations 'Arise Under the Laws of the United States'" on SSRN.  It will be published in the Brooklyn Journal of International Law.

The abstract states:

For years, scholars have been vigorously debating the precise role of customary international law within our federal legal system, including whether such is federal common law and whether claims for violation of customary international law arise under the “Laws of the United States” for purposes of both Article III and general federal questions jurisdiction, found at 28 U.S.C. § 1331. This question also remains unresolved by the U.S. Supreme Court. Yet, it is a question that is timely, given the increasing number of non-citizens and citizens alike that bring claims for violations of customary international law in U.S. court. 

In this Article, I conclude that common law claims for violations of customary international law arise under the “laws of the United States” for general federal question jurisdiction and within Article III, but only where such claims or defenses to them implicate uniquely federal interests, such as foreign relations. I do not take this position because the law of nations itself is, or historically was, part of the “laws of the United States” for Article III and 1331 purposes; in fact, the law of nations probably was not considered to be the “law of the United States” per se when each was enacted. Rather, I take this position for two other reasons. First, certain enclaves of federal common law have developed over time to include certain norms and rules of customary international law – i.e., those that affect uniquely federal interests such as foreign relations – and federal courts have the judicial authority to continue to develop such law when uniquely national interests are at stake. Second, federal common law has evolved to become “law of the United States” for purposes of both Article III and 28 U.S.C. §1331.


August 25, 2010 in International/Comparative Law, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Meier on Causation and Standing

Luke Meier (Baylor Law School) has posted Causation and Standing to SSRN. 

To satisfy the standing requirements deriving from the “case” or “controversy” language of Article III, a plaintiff must show (1) injury in fact which is (2) fairly traceable to the defendant’s misconduct (“causation”) and which can be (3) redressed by a favorable decision of the court. This articulation of the standing requirements deriving from Article III has been recited by the Supreme Court for nearly thirty years, but these requirements can be traced to cases extending back even further. This conceptualization of Article III standing requirements has been the subject of extensive academic criticism, from the moment the current formulation of standing was introduced to the most recent law review volumes. The topic of standing has attracted the attention of some of the nation’s most brilliant legal academics.

For the most part, the ubiquitous academic criticism of standing has focused primarily on the injury prong of the standing analysis. This Article will depart from the thrust of most standing scholarship by focusing on the second element, rather than the first element, of Article III standing. The “fairly traceable” or “causation” requirement of standing has largely been ignored, or treated as a secondary consideration, in modern academic discussions on standing. Partly because of academic disinterest in this topic, uncertainty remains as to the analysis required by the causation prong of standing. A major purpose of this Article is to shed light on this issue.

I hope to accomplish this task by heavily relying upon causation concepts and terminology developed in tort law. In particular, I wish to employ the concepts of “cause in fact” and “proximate cause,” both of which are elements of a standard Negligence clam. Modern tort law recognizes cause in fact and proximate cause as distinct concepts serving separate purposes. This has not always been the case. The “decoupling” of cause in fact and proximate cause is a relatively recent phenomenon, and one that is still ongoing in the most recent Restatement (Third) of Torts.

A similar “decoupling” is needed for causation in the standing context. Distinguishing cause in fact and proximate cause in tort law had facilitated the achievement of increased analytical clarity within tort doctrine. Employing the same decoupling approach to causation within standing can produce the same effect. In fact, it leads to a somewhat startling conclusion: While the terminology often used by the Supreme Court in discussing the causation prong of standing suggests a cause in fact analysis, in most cases it appears that the Court has not engaged in the cause in fact analysis suggested by the language used in the opinions.

This disconnect – between the terminology used by the Court and the analysis actually conducted under the causation prong of standing – is most evident when one considers the purposes or functions generally attributed to standing. Standing is often described as serving a “gatekeeper” function which is to operate at the “threshold” of a federal lawsuit. The nature of the cause in fact inquiry, however, is flatly inconsistent with these functions of standing law. The cause in fact inquiry is fact intensive; it requires the decision-maker to draw inferences from evidence. Having a cause in fact inquiry as part of the threshold standing analysis is akin to forcing a square peg in a round hole; it is a horrible fit. Not surprisingly, then, the Supreme Court has struggled mightily to develop a procedural approach to standing causation which recognizes the gatekeeper function of standing while also incorporating the cause in fact terminology that is found in the Court’s opinions. The failure to develop a cohesive procedure for employing this cause in fact terminology is a symptom of an underlying problem.

These procedural problems disappear, however, if the “fairly traceable” or “causation” prong of standing is interpreted as requiring a proximate cause analysis. Procedurally speaking, a proximate cause interpretation of standing is a great fit with the gatekeeper function attributed to standing law. A proximate cause analysis does not require a federal court to draw inferences from evidence at the outset of litigation; instead, it requires a court to ascertain the purposes behind the law on which the plaintiff relies in bringing her suit. This sort of analysis is deferential to other branches of government and is purely legal, as opposed to factual, in its scope. As such, it is a comfortable task for federal courts to perform and can be easily conducted at the threshold of litigation.

The superior “fit” of proximate cause in standing makes it a better interpretation of the “fairly traceable” prong of standing. A close inspection of the early Supreme Court cases using cause in fact terminology suggests that the Supreme Court most likely intended, originally at least, a proximate cause analysis. Because of the failure to properly “decouple,” however, proximate cause concepts were verbalized using cause in fact language. In subsequent Supreme Court cases the Court has continued to employ cause in fact language but has usually avoided engaging in a full-fledged cause in fact analysis.

As such, the Court should reformulate the causation prong of standing to clarify that it requires a proximate cause, rather than a cause in fact, analysis. This interpretation of the causation prong of standing will solve the procedural problems caused by the current cause in fact language used in the opinions and will be a better tool for implementing the intuitions which originally prompted the Court to develop this branch of standing jurisprudence.


August 25, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 24, 2010

Hoffman & Steinberg on the Milberg Weiss Controversy

Professor Lonny Hoffman (Houston) & Alan Steinberg have posted on SSRN their paper The Ongoing Milberg Weiss Controversy. Here’s the abstract:

In this paper we revisit the ongoing controversy surrounding the Milberg Weiss prosecution. Our paper responds to an important, recent empirical study by Michael A. Perino that claims to have found evidence to support the government’s assertion (made without evidentiary support) that class members were in fact injured by the payments Milberg made to the named representatives. Notwithstanding the carefully constructed and rigorous study Perino has authored, we argue that the evidentiary proof of harm he claims to have found simply cannot withstand scrutiny. We raise several methodological critiques of the study. Although we did not have access to Perino’s full data, we were able to replicate some of it by using the same database of securities class action settlements on which he primarily relied. The replication data results validate some of our hypotheses. Most critically, the replication data strongly suggests that the reason why fees may have been higher in the indictment cases is that the almost all were filed before the Reform Act went into effect. By contrast, the vast majority of cases in the replication sample of Perino’s non-indictment cases were filed in a later period when fees have been lower. Additionally, the replication data we report is not consistent with some of the descriptive statistical findings Perino presents. Specifically, we find no difference either in mean or median fee awards between cases in which the government alleged Milberg paid a kickback and all other cases. Beyond the study’s methodological difficulties, we also show that there are equally substantial reasons to be concerned about the inferential conclusions Perino draws from the data. The big take away that Perino offers at the end of his study—that the evidence contradicts the claim that kickbacks paid to the named plaintiffs were a “victimless crime”—is not supported by the data he has collected and reported. Far from demonstrating that kickbacks allowed Milberg to obtain higher fees, his study fails to rule out the possibility that other, entirely benign reasons could explain the higher fees Milberg received, including that the fees were earned by the results obtained in settlements of the indictment cases.


August 24, 2010 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, August 23, 2010

Cooperative Effort Between State and Federal Judges in Settling Mass Tort

The Fulton County Daily Report describes the settlement in lawsuits over vitamin supplements:

"DeKalb County State Court Judge Alvin T. Wong participated in the mass mediation at the request of U.S. District Court Judge R. David Proctor of the Northern District of Alabama, who presides over multidistrict federal litigation involving the Total Body Formula liquid supplements.

In addition to the 34 federal cases over the supplement, several dozen cases in state courts across the country were also pending. Wong said Proctor asked him to get involved in the mediation because he presided over about 60 cases, the largest number of state court cases."


August 23, 2010 in Federal Courts, Mass Torts | Permalink | Comments (0)

Thomas on the Seventh Amendment & Bankruptcy/Administrative Proceedings

Prof. Suja Thomas (Illinois) has posted on SSRN her forthcoming article, The Unconstitutionality of Administrative and Bankruptcy Adjudication of Damage Claims, which will be published in the Ohio State Law Journal. Here’s the abstract:

The Supreme Court has interpreted many parts of the Constitution to limit the power of Congress including, for example, Articles I, II and III and the First Amendment. This Symposium Article argues that another part of the Constitution, the Seventh Amendment, has not been viewed similarly by the Court, and that this view is incorrect. The Article first assumes that the Court has properly adopted the English common law in 1791 as the law governing the Seventh Amendment. Using this law, in decisions on whether a jury trial right exists for a cause of action created by Congress, the Court has analyzed both whether the cause of action is sufficiently analogous to an English common law cause of action and whether the relief sought is of the type decided by juries in English common law courts. This two-prong examination has occurred despite the fact that whether a jury heard a claim in England in 1791 was based, with very few exceptions, only on the second prong - the relief sought, with damages being heard by juries. Also, the Court has been deferential to Congressional decisions to place certain damages decisions in non-Article III forums, without a jury trial right, including in administrative agencies and bankruptcy courts. This Article argues that, at least in part because of this deferential way in which the Court has viewed Congress, the Seventh Amendment civil jury trial right has been improperly curtailed. The inquiry as to whether a jury trial right exists under the Seventh Amendment should be based only on the relief sought and a jury trial right exists for Congressionally-created causes of action with damages remedies, including ones that Congress has relegated to administrative agencies and bankruptcy courts.


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