Friday, October 15, 2010
An editorial in today's New York Times describes the inability of budget constrained legal representation programs for low income litigants to provide enough lawyers to persons in civil cases. It calls on the New York State Legislature and Congress to develop and fund programs that will fill this need.
Wednesday, October 13, 2010
The Supreme Court granted certiorari yesterday in Bond v. United States (No. 09-1227). The question presented is: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” According to the opinion below (from the Third Circuit):
[C]ourts of appeals are split on whether private parties have standing to challenge a federal act on the basis of the Tenth Amendment. Two circuit courts have allowed private parties to bring such challenges. See Gillespie v. City of Indianapolis, 185 F.3d 693, 703–04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir. 1982). Five have not. See United States v. Hacker, 565 F.3d 522, 525–527 (8th Cir. 2009); Oregon v. Legal Servs. Corp., 552 F.3d 965, 971–72 (9th Cir. 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234–35 (2d Cir. 2006), cert. denied, 128 S.Ct. 44 (2007); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006); United States v. Parker, 362 F.3d 1279, 1284–85 (10th Cir. 2004), cert. denied, 543 U.S. 874 (2004).
We are persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.
The Third Circuit added:
Our conclusion does not bar individuals from any recourse in the face of Tenth Amendment violations accepted by a state. As the First Circuit Court explained, “the State represents the interests of its citizens in general, and, if it refuses to prosecute a viable Tenth Amendment claim, the citizens of that state may have recourse to local political processes to effect change in the state’s policy of acquiescence.”
SCOTUSblog’s case file is available here, which contains links to the Third Circuit’s opinion (reported at 582 F.3d 281) and the cert-stage briefs.
PS: The cert. petition raises only the standing issue, but Bond’s constitutional challenge is also worth noting. The defendant was convicted under a criminal statute that implemented the 1993 Chemical Weapons Convention. As described in the Third Circuit’s opinion, the government argued that “the Tenth Amendment is no impediment to the operation of § 229 because Congress had authority to enact it under the Necessary and Proper Clause of the Constitution as a law enforcing its Treaty Power. Relying on Missouri v. Holland, 252 U.S. 416, 432 (1920), the Government asserts that § 229 need not be authorized by a specific power given to Congress, nor contain a requisite federal interest element.” The Third Circuit noted that the defendant’s challenge “ask[s] us to wade into the debate over the scope and persuasiveness of the decision in Holland.” Because of its standing decision, the Third Circuit did “not reach the merits of Bond’s arguments concerning the constitutionality of § 229 under our federal system of government.”
Tuesday, October 12, 2010
Last week the University of Illinois College of Law hosted the Third Annual Junior Faculty Federal Courts Workshop in Chicago. Drafts of many of the papers presented are available on SSRN, including:
Scott Dodson, The Complexity of Jurisdictional Clarity
Joshua Douglas, The Procedure of Election Law in Federal Courts
Other presenters included Sergio Campos, Lynda Dodd, Allan Erbsen, Tara Grove, Matthew Hall, Jennifer Hendricks, Rebecca Hollander-Blumhoff, Lumen Mulligan, Radha Pathak, John Preis, and Jamelle Sharpe.
Thanks to Jamelle Sharpe for putting together an excellent event.
Sunday, October 10, 2010
Alex Reinert (Cardozo School of Law) has posted The Costs of Heightened Pleading to SSRN.
In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Iqbal and Twombly, on many accounts, two-stepped the Court from notice to heightened “plausibility” pleading for all civil cases. And it garnered applause and withering criticism. No one seems willing to defend the process that the Court used to abandon fifty years of pleading law — shorn as it was of any attention to the procedures contemplated by the Rules Enabling Act — but as a substantive matter, heightened pleading has many adherents. For heightened pleading advocates, it promises to reduce crowded dockets, make discovery available only to worthy litigants, and generally improve the quality of litigation to which attorneys and federal courts devote their attention. And at the bottom of it all lies a fundamental assumption — notice pleading lets in too many worthless cases and heightened pleading will keep them out. Despite this assumption, however, there has been almost no empirical analysis of the connection between merit and pleading.
This Article critically intervenes in this discussion by providing empirical data to question the widespread assumption about the benefits and costs of heightened pleading. The data reported here show that pleadings that would get by under a notice pleading standard but not a heightened pleading standard — what I refer to as “thin” pleadings — are just as likely to be successful as those cases that would survive heightened pleading. Indeed, the research summarized in this Article, gathered through a novel retrospective analysis of appellate and trial court decisions from 1990-1999, suggest that there is no correlation between the heft of a pleading and the ultimate success of a case.
This Article certainly does not end the debate, but it is better to begin on solid empirical footing than on supposition alone. Although there are limitations to the data reported here, they are more than we have had before, and they call attention to the costs of heightened pleading even as they suggest avenues for further research. As Congress, the judiciary, and the academy are engaged in a critical discussion as to how to respond to the Supreme Court’s most recent alteration of pleading jurisprudence, relevant empirical data should be part of the conversation.
Hillel Y. Levin (University of Georgia School of Law) has posted Iqbal, Twombly and the Lessons of the Celotex Trilogy to SSRN.
This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.