Friday, November 5, 2010
Just in time for this week, Joshua A. Douglas (University of Kentucky) has posted The Procedure of Election Law in Federal Courts to SSRN.
Much attention is paid to the substantive outcomes of election law decisions. But little scholarship focuses on the mechanisms by which election law cases traverse the federal courts. This article fills that void.
The article first identifies the goals Congress should try to achieve in creating special procedures for election law cases. Congress has deemed election law cases to be particularly important given the foundational issues at stake in resolving election law disputes. Accordingly, the legislature has created various procedural mechanisms to shepherd these cases through the federal courts. What goals should underlie these processes? Based on the importance of election law cases to the foundation of our representative government and the history of judicial involvement in elections, election law court procedures should try to achieve the following goals: timeliness, accuracy, legitimacy, minimization of ideology, maximization of each judge’s skills, and signaling of the importance of election law cases to our democratic order. Although these goals may certainly be laudable for all cases, they are particularly important to elevate in the election arena given the high stakes involved and the importance of fair elections to the functioning of our democracy.
Next, the article dissects the three ways federal courts hear election law cases. First, a case can follow the “traditional” three-tiered path, starting with a single district judge, with direct appeal to a three-judge panel of the court of appeals and discretionary en banc or Supreme Court review. Second, certain cases start with a three-judge panel of the district court, which is comprised of two district judges and one circuit court judge, with direct mandatory appeal to the Supreme Court. Third, in a minority of election law cases, a dispute originates with a single district judge, who certifies nonfrivolous constitutional questions to the en banc circuit court, with certiorari review at the Supreme Court. The article explores each of these mechanisms, highlighting the intended and unintended consequences of each system. In particular, the article evaluates whether each process meets the six goals for federal court involvement in election law cases.
The article concludes by proposing, for all election law cases, a procedure that elevates these ideals: a modified form of the en banc certification process used in some federal court cases (which I term modified direct en banc review). This system best achieves the important goals identified earlier in the paper and streamlines federal court involvement in elections.
Thursday, November 4, 2010
The Supreme Court heard oral argument yesterday in Williamson v. Mazda Motor of America, Inc. (08-1314), which presents the question:
Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?
Wednesday, November 3, 2010
Scott Dodson (William and Mary School of Law) has posted The Complexity of Jurisdictional Clarity to SSRN.
The ideal of clear and simple jurisdictional rules seems like a no- brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates and discretion toward a perspective that focuses on the value and attainability of clarity. It offers a more refined understanding of the surprising uncertainty and complexity of jurisdictional clarity, and it argues that, contrary to the rhetoric, the ideal of jurisdictional clarity is mostly illusory. Difficulties inherent in the design, implementation, and instrumental direction of clear and simple jurisdictional rules largely render them unattainable. Rather than continue to invoke the unexamined ideal of clarity and simplicity, jurisdictional doctrine should strive to confine clarity to what it can reasonably accomplish and to embrace the undervalued virtues of uncertainty and complexity.
Tuesday, November 2, 2010
We covered earlier the Supreme Court's grant of certiorari in Ortiz v. Jordan, which presents the issue:
"May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?"
(Because the defendants' summary judgment motion was based on qualified immunity, which means they could have sought an appeal prior to trial via the collateral order doctrine.)
Monday, November 1, 2010
The Supreme Court granted certiorari today in Fox v. Vice (No. 10-114), which presents the following questions:
1) Can defendants be awarded attorney's fees under 42 U.S.C. § 1988 in an action based on a dismissal of a claim, when the plaintiff has asserted other interrelated and non-frivolous claims?
2) Is it improper to award defendants all of the attorney's fees they incurred in an action under 42 U.S.C. § 1988, when the fees were spent defending non-frivolous claims that were intertwined with the frivolous claim?
Lior Strahilevitz (University of Chicago Law School) has posted Pseudonymous Litigation to SSRN.
We presently lack a good theory for when we should permit parties to litigate using a pseudonym, and American and European legal systems differ sharply on the question. This essay attempts to leverage one of the developments associated with the information age to make progress towards a satisfying answer. The relevant development is the newfound ease with which one can air a grievance pseudonymously or anonymously via online feedback sites, rating sites, and similar forums. Given the availability of these sometimes attractive alternatives to litigation, the legal system should answer the question of whether to permit a party to litigate as a “John Doe” by determining whether a particular grievance is optimally resolved via legal dispute resolution mechanisms or the self-help alternatives that have arisen online and elsewhere. These alternative mechanisms are markedly inferior to litigation at addressing certain types of disputes and markedly superior at addressing other sorts of controversies. Many of the factors most relevant to determining whether a dispute is best addressed in a court or in a less costly forum – such as the existence of legal issues of first impression, the public relations sophistication and reputational stakes of the parties, the existence of material factual disputes, the degree to which the parties’ conduct violates existing social norms, and the magnitude of the harms suffered – are not easily discerned at the outset of litigation. It therefore may be optimal to permit a party to litigate to final judgment using a pseudonym and to consider revealing the litigant’s identity at the conclusion of proceedings. Such determinations could be based on either a balancing test that weighs the relevant aforementioned factors or a less precise bright-line rule, such as “prevailing party pseudonymity.” The essay examines how such approaches would have played out in Doe v. Smith, a Seventh Circuit invasion of privacy case that expressed misgivings about permitting pseudonymous litigation despite quite sympathetic facts.