June 4, 2011
AALS Section On Federal Courts: Call For Papers
Professor Steve Vladeck (American University) has posted the following call for papers on Prawfsblawg:
The AALS Section on Federal Courts is pleased to announce a call for papers in conjunction with the 2012 Annual Meeting of the Association of American Law Schools, to be held January 4–8, 2012, in Washington, D.C.
The topic of the section program at the 2012 Annual Meeting (Saturday, January 7, 1:30–3:15 p.m.) is “War, Terrorism, and the Federal Courts Ten Years After 9/11.” To that end, the panel will focus on the unique issues that federal courts have confronted during (and relating to) the conflict against al Qaeda and related terrorist groups, and how that body of jurisprudence has—and may yet—affect the role of the federal courts more generally going forward. Papers submitted in connection with the call should focus on this topic, or any specific aspect thereof, and should be between 15,000 and 30,000 words, including footnotes.
One paper will be selected from the call, and will be published in Volume 61 of the American University Law Review, alongside contributions from the invited panelists—including Curtis Bradley (Duke), Judith Resnik (Yale), Steve Vladeck (American), and the Honorable Brett Kavanaugh (U.S. Court of Appeals for the D.C. Circuit). In addition, the author of the selected paper will be invited to participate in the Federal Courts section panel at the 2012 Annual Meeting.
To be considered, papers must be submitted via e-mail to Steve Vladeck, American University Washington College of Law (firstname.lastname@example.org). All full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.
The deadline for submission is 11:59 p.m. (EDT) on Monday, August 29, 2011. Papers will be selected after review by an ad hoc committee composed of members of the Executive Committee of the AALS Section on Federal Courts. The selected author will be notified by Monday, October 3, 2011, and will be responsible for paying their annual meeting registration fee and travel expenses.
June 3, 2011
Dodge on Morrison v. National Australia Bank
Professor William Dodge (University of California - Hastings) has posted on SSRN a draft of his article, Morrison’s Effects Test, which is forthcoming in the Southwestern University Law Review. Here’s the abstract:
In Morrison v. National Australia Bank, the Supreme Court held that the presumption against extraterritoriality applies "in all cases." But the Court also changed the presumption by shifting its focus from the location of the conduct to the location of the effects. This symposium contribution argues this shift is consistent with the presumption’s underlying rationale and with the Court’s prior case law. It also applies Morrison’s effects test to RICO.
June 2, 2011
SCOTUS Decision in Camreta v. Greene
Last week’s Supreme Court decision in Camreta v. Greene (09-1454) involved a section 1983 action for damages based on alleged violations of the Fourth Amendment in the interview of a nine-year-old elementary-school student by state officials without a warrant or parental consent. The Ninth Circuit held that the officials violated the Fourth Amendment but were entitled to qualified immunity “because the constitutional right at issue was not clearly established under existing law.” [Slip Op. 2]
What makes the case particularly interesting from a Federal Courts standpoint is that the officials (who ultimately won in the Ninth Circuit on qualified immunity grounds) sought certiorari to challenge the Ninth Circuit’s conclusion that their conduct violated the Fourth Amendment. So the first question the Court had to address was: “may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution?” [Slip Op. 2] The answer: yes, according to the majority opinion authored by Justice Kagan and joined by Chief Justice Roberts and Justices Scalia, Ginsburg and Alito. (One commentator described it as an “interesting lineup.”)
Justice Kagan first rejects the argument that the officials lack standing under Article III [Slip Op. 6-7]:
Th[e] Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials’ behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally liable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability.
She then rejects the argument that the appeal should be disallowed for prudential reasons. Although she recognizes that the Court has “generally declined to consider cases at the request of a prevailing party,” and that “[o]ur resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor,” she concludes that qualified immunity cases are “in a special category when it comes to this Court’s review of appeals brought by winners.” [Slip Op. 8]
The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or statements in opinions. They are rulings that have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity—and observance—of constitutional rules. [Slip Op. 8-9 (citations omitted)].
Justice Kagan clarifies that the Court’s conclusion “addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. [the plaintiff—not to be confused with the Solicitor-General] appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds.” [Slip Op. 13]
Ultimately, however, the Court does not reach the merits of the Ninth Circuit’s Fourth Amendment holding, finding “a separate jurisdictional problem . . . . This case, we conclude, is moot.” [Slip Op. 14]. As Justice Kagan explains, S. G. “can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice.” [Slip Op. 15]
After we granted certiorari, we discovered that S. G. has moved to Florida, and has no intention of relocating back to Oregon. What is more, S. G. is now only months away from her 18th birthday—and, presumably, from her high school graduation. S. G. therefore cannot be affected by the Court of Appeals’ ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit’s jurisdiction as part of a child abuse investigation. [Slip Op. 15]
Having concluded that the case is moot, Justice Kagan noted that the Court’s “‘established’ (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39.” [Slip Op. 16]
In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue . . . . [Slip Op. 18]
As for the other opinions in the case, Justice Sotomayor (joined by Justice Breyer) writes a concurring opinion. She agrees with the majority “that this case is moot and that vacatur is the appropriate disposition.” In light of that conclusion, Justice Sotomayor would not have reached “the question whether Camreta, as a prevailing party, can obtain our review of the Ninth Circuit’s constitutional ruling.”
Justice Kennedy, joined by Justice Thomas, writes a dissenting opinion arguing that Camreta lacked standing to seek Supreme Court review. The opinion begins:
Today’s decision results from what is emerging as a rather troubling consequence from the reasoning of our recent qualified immunity cases. The Court is correct to note the problem presented when, on the one hand, its precedents permit or invite courts to rule on the merits of a constitutional claim even when qualified immunity disposes of the matter; and, on the other hand, jurisdictional principles prevent us from reviewing those invited rulings. It does seem that clarification is required. In my view, however, the correct solution is not to override jurisdictional rules that are basic to the functioning of the Court and to the necessity of avoiding advisory opinions. Dictum, though not precedent, may have its utility; but it ought not to be treated as a judgment standing on its own. [Dissenting Op. 1]
He writes later [Dissenting Op. 11-12 (citations omitted)]:
The Court’s analysis appears to rest on the premise that the reasoning of the decision below in itself causes Camreta injury. Until today, however, precedential reasoning of general applicability divorced from a particular adverse judgment was not thought to yield standing to appeal. . . .
Camreta’s asserted injury is caused not by the Court of Appeals or by respondent but rather by the independent action of some third party not before the court—that is, by the still-unidentified private plaintiffs whose lawsuits Camreta hopes to avoid. This circumstance distinguishes the present case from requests for declaratory or injunctive relief filed against officeholders who threaten legal enforcement. An inert rule of law does not cause particular, concrete injury; only the specific threat of its enforcement can do so. . . . Without an adverse judgment from which to appeal, Camreta has in effect filed a new declaratory judgment action in this Court against the Court of Appeals. This is no more consistent with Article III than filing a declaratory judgment action against this Court for its issuance of an adverse precedent or against Congress in response to its enactment of an unconstitutional law.
Justice Kennedy concludes by suggesting that “the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedential effect.” [Dissenting Op. 13] On this point Justice Scalia expresses some sympathy, even though he joins Justice Kagan’s majority opinion. He writes in a brief concurring opinion: "I join the Court’s opinion, which reasonably applies our precedents, strange though they may be. The alternative solution, as JUSTICE KENNEDY suggests, is to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity. See Saucier v. Katz, 533 U. S. 194 (2001). The parties have not asked us to adopt that approach, but I would be willing to consider it in an appropriate case."
June 1, 2011
Hot Off The Presses: Recent Articles Of Interest
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Charlotte S. Alexander, Would an Opt In Requirement Fix the Class Action Settlement? Evidence from the Fair Labor Standards Act, 80 Miss. L.J. 443 (2010).
Paul M. Collins, Jr. & Wendy L. Martinek, The Small Group Context: Designated District Court Judges in the U.S. Court of Appeals, 8 J. Empirical Legal Stud. 177 (2011).
Deborah N. Pearlstein, After Deference: Formalizing the Judicial Power for Foreign Relations Law, 159 U. Pa. L. Rev. 783 (2011).
Rojer J. Perlstadt, Interlocutory Review of Litigation-Avoidance Claims: Insights from Appeals Under the Federal Arbitration Act, 44 Akron L. Rev. 375 (2011).
Aaron R. Petty, The Hidden Harmony of Appellate Jurisdiction, 62 S.C. L. Rev. 353 (2010).
Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643 (2011).
Michael E. Rosman, Counting the Days Gone By: A Eulogy for Former Rule 6(a)(2), 159 U. Pa. L. Rev. 635 (2011).
Symposium, Aggregate Litigation: Critical Perspectives, 79 Geo. Wash. L. Rev. 293-772 (2011):
David Betson & Jay Tidmarsh, Optimal Class Size, Opt-Out Rights, and "Indivisible" Remedies, 79 Geo. Wash. L. Rev. 542 (2011).
Robert G. Bone, The Puzzling Idea of Adjudicative Representation: Lessons for Aggregate Litigation and Class Actions, 79 Geo. Wash. L. Rev. 577 (2011).
Lester Brickman, Anatomy of an Aggregate Settlement: The Triumph of Temptation Over Ethics, 79 Geo. Wash. L. Rev. 700 (2011).
Elizabeth Chamblee Burch, Group Consensus, Individual Consent, 79 Geo. Wash. L. Rev. 506 (2011).
Richard Marcus, Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification, 79 Geo. Wash. L. Rev. 324 (2011).
Nancy J. Moore, The Absence of Legal Ethics in the ALI's Principles of the Law of Aggregate Litigation: A Missed Opportunity--and More, 79 Geo. Wash. L. Rev. 717 (2011).
Thomas D. Morgan, Client Representation vs. Case Administration: The ALI Looks at Legal Ethics Issues in Aggregate Settlements, 79 Geo. Wash. L. Rev. 734 (2011).
Alan B. Morrison, Improving the Class Action Settlement Process: Little Things Mean a Lot, 79 Geo. Wash. L. Rev. 428 (2011).
Linda A. Mullenix, Federal Class Actions: A Near-Death experience in a Shady Grove, 79 Geo. Wash. L. Rev. 448 (2011).
Judith Resnik, Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers' Powers, 79 Geo. Wash. L. Rev. 628 (2011).
David Rosenberg & Luke McCloud, A Solution to the Choice of Law Problem of Differing State Laws in Class Actions: Average Law, 79 Geo. Wash. L. Rev. 374 (2011).
Edward F. Sherman, "Abandoned Claims" in Class Actions: Implications for Preclusion and Adequacy of Counsel, 79 Geo. Wash. L. Rev. 483 (2011).
Charles Silver, Ethics and Innovation, 79 Geo. Wash. L. Rev. 754 (2011).
Patrick Woolley, The Jurisdictional Nature of Adequate Representation in Class Litigation, 79 Geo. Wash. L. Rev. 410 (2011).
Note, From Consensus to Collegiality: The Origins of the "Respectful" Dissent, 124 Harv. L. Rev. 1305 (2011).
Marcus on Interpreting the Federal Rules
David Marcus (University of Arizona) has posted When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation to SSRN.
Like any legal text, the Federal Rules of Civil Procedure require interpretation. Given their day-to-day importance in the federal courts, the question of how to do so has received surprisingly little attention. Courts vacillate wildly in the methods they use when they interpret rules, and academic commentary on the question is scant. In this article, I propose a method for rule interpretation. I argue that courts should defer to rulemaker intent and purpose as they apply rules in particular cases. To do so, courts should draw upon a wide variety of sources, including rulemaking history, and reject the sort of interpretive strictures that a textualist method imposes for statutory interpretation. I illustrate how this method works with a critique of the Supreme Court’s recent decisions raising the pleading threshold a plaintiff’s complaint must meet. I show how the interpretation of Rule 8 that the Court rendered conflicts with the best reading of its text, and that the interpretation lacks any plausible basis in rulemaker intent or purpose.
I use an approach that focuses on the various governmental institutions involved in procedural rule promulgation and interpretation to assemble my methodology. In doing so, I argue that a method for the interpretation of a legal text must reflect the institutional setting from which that text emerges, and I show how an institutional approach can explain why interpretive methodologies differ from legal text to legal text. My article thus provides an example of how courts and commentators might craft interpretive methods for any number of legal texts that have thus far eluded the attention of interpretive theory.
May 31, 2011
Faculty Hiring Announcement
The University of Florida (Levin College of Law) is seeking applicants for several tenure-track/tenured faculty positions, two of which explicitly target Civil Procedure. See announcements here and here.
*Update* Procedure Reforms in Texas -- Losing Plaintiffs Now Pay Costs/fees
Governor Rick Perry has signed a new tort reform law into effect in Texas. The Houston Chronicle reports that the law will shift court and attorney costs to losing plaintiffs and give judges "expanded powers" to dismiss "frivolous lawsuits." The accounts I have read all report that it is losing plaintiffs (not losing parties) who must pay costs. Anyone with more insight into this issue is welcome to contact me!
My bleg has worked! Our very own Texan, Beth Thornburg writes:
The law, Download HB00274Final, actually requires the Texas Supreme Court to make rules for a new motion to dismiss (apparently on the pleadings – “dismissal of causes of action that have no basis on law or fact on motion and without evidence”), and to provide for a cost shift to the “prevailing party” when the motion is granted or denied. So it looks to me like under the language of the bill, a defendant who unsuccessfully moved to dismiss could be ordered to pay the plaintiff’s attorney fees.
The bill also changes a bit (and somewhat inscrutably) the offer of judgment rule.
And it requires the Court to make rules for cheaper and faster disposition of cases where the amount in controversy is less than $100,000.
The full drafting history is available at http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=82R&Bill=HB274