June 18, 2011
Campos on ATT v. Concepcion
Over at Prawfsblawg, Sergio Campos has posted some thoughts on ATT v. Concepcion.
From the post:
Here is the link to Erie. In most cases the underlying entitlements, such as an entitlement to avoid fraudulent conduct, are protected by state law. It would stand to reason that states should also have some say on how those substantive entitlements are procedurally protected, since, as John Dingell knows all too well, an entitlement is only as good as how it is protected. Accordingly, California should have a lot of leeway in how its substantive entitlements are procedurally protected, including prohibiting class waivers for certain state law claims. But it also stands to reason that the federal government, via its Commerce Clause powers, can also regulate interstate activity to further the protection of important entitlements. So to what extent can California define procedure for its entitlements without conflicting with federal objectives? And how are courts supposed to sort out these disputes in any given case?
June 17, 2011
SCOTUS Decision in Bond v. United States
This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.
The indicted defendant, petitioner here, sought to argue the invalidity of the statute. She relied on the Tenth Amendment, and, by extension, on the premise that Congress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U. S. C. §229, was enacted to comply with a treaty; but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct.
The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion.
Justice Ginsburg writes a concurring opinion (joined by Justice Breyer) that begins:
I join the Court’s opinion and write separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law.
June 16, 2011
SCOTUS Decision in Smith v. Bayer
In this case, a Federal District Court enjoined a state court from considering a plaintiff’s request to approve a class action. The District Court did so because it had earlier denied a motion to certify a class in a related case, brought by a different plaintiff against the same defendant alleging similar claims. The federal court thought its injunction appropriate to prevent relitigation of the issue it had decided.
We hold to the contrary. In issuing this order to a state court, the federal court exceeded its authority under the “relitigation exception” to the Anti-Injunction Act. That statutory provision permits a federal court to enjoin a state proceeding only in rare cases, when necessary to “protect or effectuate [the federal court’s] judgments.” 28 U. S. C. §2283. Here, that standard was not met for two reasons. First, the issue presented in the state court was not identical to the one decided in the federal tribunal. And second, the plaintiff in the state court did not have the requisite connection to the federal suit to be bound by the District Court’s judgment.
Justice Thomas joined only Parts I and II-A of the opinion.
New York City Bar Weighs in On Third Party Litigation Funding
The New York Law Journal reports that the New York City Bar Association has issued an ethics opinion addressing non-recourse litigation financing by third parties.
The purpose of the opinion appears to be an attempt to clarify existing principles as they apply to third party litigation financing. The bottom line from the NYCBA: Non-recourse litigation financing from third parties is not necessarily illegal but lawyers should be particularly attentive to avoiding conflicts of interest, disclosure of privileged materials, and promoting particular financing agencies or arrangements.
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:
Michael E. Chaplin, Resolving the Principal Place of Business Conundrum: Adopting a Single Test for Federal Diversity Jurisdiction, 30 Rev. Litig. 75 (2010).
Kevin M. Clermont, Sequencing the Issues for Judicial Decisionmaking: Limitations from Jurisdictional Primacy and Intrasuit Preclusion, 63 Fla. L. Rev. 301 (2011).
Isaac Dilanni, The Role of Competition in the Market for Adjudication, 18 Sup. Ct. Econ. Rev. 203 (2010).
Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1 (2011).
Matthew Hall, Randomness Reconsidered: Modeling Random Judicial Assignment in the U.S. Courts of Appeals, 7 J. Empirical Legal Stud. 574 (2010).
Laura Inglis & Kevin McCabe, The Effects of Litigation Financing Rules on Settlement Rates, 18 Sup. Ct. Econ. Rev. 135 (2010).
Lee Kovarsky, Original Habeas Redux, 97 Va. L. Rev. 61 (2011).
E. Farish Percy, The Tedford Equitable Exception Permitting Removal of Diversity Cases After One Year: A Welcome Development or the Opening of Pandora's box?, 63 Baylor L. Rev. 146 (2011).
Christa Roodt, Conflicts of Procedure Between Courts and Arbitral Tribunals in Africa: An Argument for Harmonization, 25 Tul. Eur. & Civ. L.F. 65 (2010).
Marc I. Steinberg & Diego E. Gomez-Cornejo, Blurring the Lines Between Pleading Doctrines: The Enhanced Rule 8(a)(2) Plausibility Pleading Standard Converges with the Heightened Fraud Pleading Standards Under Rule 9(b) and the PSLRA, 30 Rev. Litig. 1 (2010).
Imre S. Szalai, An Obituary for the Federal Arbitration Act: An Older Cousin to Modern Civil Procedure, 2010 J. Disp. Resol. 391.
Shannon R. Wheatman & Terri R. LeClercq, Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements, 30 Rev. Litig. 53 (2010).
Christopher A. Whytock, The Evolving Forum Shopping System, 96 Cornell L. Rev. 481 (2011).
Hon. Diane P. Wood, Summary Judgment and the Law of Unintended Consequences, Delivered at the Fifth Annual William J. Holloway, Jr. Lecture (Sept. 27, 2010), in 36 Okla. City U. L. Rev. 231 (2011).
5th Annual Judicial Symposium on Civil Justice Issues, The Balancing of Markets, Litigation and Regulation, Geoffrey J. Lysaught, moderator; Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin and Todd J. Zywicki, panelists, 7 J.L. Econ. & Pol'y 351 (2010).
5th Annual Judicial Symposium on Civil Justice Issues, Update on the Federal Rules Advisory Committee, Hon. Lee H. Rosenthal, moderator; Alexander Dimitrief, Bruce H. Kobayashi, Emery G. Lee III, Martin Redish, Donald H. Slavik and John Vail, panelists ,7 J.L. Econ. & Pol'y 211 (2010).
Kenneth F. Hunt, Note, Saving Time or Killing Time: How the Use of Unpublished Opinions Accelerates the Drain on Federal Judicial Resources, 61 Syracuse L. Rev. 315 (2011).
Aaron Burke, Comment, Confusion Now Hath Made His Masterpiece! But When Does the Removal Countdown Begin? A Discussion on the Fifth Circuit's Recent Fraudulent Joinder Decisions and Their Potential to Trap the Unwary Litigator, 63 Baylor L. Rev. 237 (2011).
Jason Lyon, Comment, Revolution in Progress: Third-Party Funding of American Litigation, 58 UCLA L. Rev. 571 (2010).
Gidi on Twombly and Iqbal
Proficient in Italian? Now on SSRN is an article by Professor Antonio Gidi (University of Houston), Twombly e Iqbal: Il Ruolo Della Civil Procedure Nello Scontro Politico-Ideologico Della Società Statunitense (Twombly and Iqbal: The Role of Civil Procedure in the Political and Ideological Battle in American Society). It was recently published in Int’l Lis (Int’l Lis 104 (2010) (Italy)). Here’s the abstract:
L’autore indaga le sentenze “Twombly” (2007) e “Iqbal” (2009) della Suprema Corte federale degli Stati Uniti sotto un angolo visuale socio-politico, mettendo in evidenza il pericolo di una loro lettura strettamente tecnico-processuale e storico-comparata.
Con il conoscimento della struttura processual-giudiziaria e anche della sua complessità sociale e politica dell’ordinamento statunitense, si puó mettere in risalto da un lato, la prevedibilità delle due sentenze “Twombly” e “Iqbal” nel quadro politico attuale degli Stati Uniti e dall’altro, le significative e preoccupanti conseguenze del nuovo orientamento della suprema giurisprudenza federale statunitense sulla tutela, nel processo, delle parti meno abbienti e socialmente più deboli.
The author analyses the “Twombly” (2007) and “Iqbal” (2009) decisions from a socio-political perspective, highlighting the danger of a merely technical-procedural and historical-comparative analysis.
Only an in-depth knowledge of U. S. procedural and judiciary system as well as of its social and political complexity, highlights on the one hand, the foreseeability of the “Twombly” and “Iqbal” decisions in the present U. S. political situation and on the other hand, the meaningful and worrisome consequences of the U. S. Supreme Court’s new trend on the judicial protection of the poor and the weak.
June 15, 2011
Bone on the Economics of Preclusion
Professor Robert Bone (University of Texas) has posted on SSRN a draft of his essay, Preclusion, which will be published in Procedural Law and Economics. Here’s the abstract:
This essay on preclusion will be a chapter in the Procedural Law and Economics volume forthcoming from Edward Elgar. It reviews the law-and-economics literature on preclusion, current as of 2008 (when I wrote the chapter). It discusses the economics of claim preclusion and issue preclusion, including nonmutual issue preclusion and nonparty preclusion.
June 14, 2011
Perry on Differential Preemption
Professor Ronen Perry (University of Haifa) has posted on SSRN a draft of his article, Differential Preemption, which is forthcoming in the Ohio State Law Journal. Here’s the abstract:
Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the implications of the main idea are far-reaching. It may be pertinent to allocation of lawmaking powers in other areas and to other types of unification and harmonization methods, and may be applicable in other federal and federal-like systems, such as the European Union.
The Article contends that the preemptive force of federal maritime law should relate to prospective litigants’ ability to pre-select the law applicable to their interaction. Maritime preemption is generally based on the need for uniformity. However, and this is crucial, uniformity is not an end in itself, but a means for the protection and advancement of more fundamental federal interests. As the underlying justifications for uniformity weaken, so does the need for preemption. The Article ascertains that if the parties in a particular type of cases can easily select applicable law before the occurrence of the legally relevant incident, uniformity becomes unnecessary. Moreover, where pre-selection based on individual preferences is possible, uniformity may be detrimental to the common good, because it curtails regulatory competition. Under these circumstances, uniformity-driven preemption of state law should be avoided. If, on the other hand, pre-selection is impossible or impractical, the need for uniformity resurfaces, and preemption might be warranted.
June 13, 2011
Vladeck on the D.C. Circuit after Boumediene
Professor Stephen Vladeck (American University) has posted on SSRN a draft of his article, The D.C. Circuit After Boumediene, which is forthcoming in the Seton Hall Law Review. Here’s the abstract:
Over the past three years, significant attention has been paid to how the D.C. courts would implement the Supreme Court's mandate in Boumediene v. Bushthat the Guantanamo habeas cases go forward in the absence of any statutory authority, especially given the Court’s express delegation to the lower courts of the power to fashion procedural, evidentiary, and even substantive rules to govern the detainees’ claims. The result has been, by any account, a remarkably interesting and complex body of case law. But increasingly in recent months, these cases have also come to inform a heated debate over the relationship between the D.C. Circuit and Boumediene itself.
In particular, a number of scholars, civil liberties groups, and detainee lawyers (not to mention the editorial pages of various major newspapers) have accused the D.C. Circuit in general - and some of its judges in particular - of actively subverting Boumediene by adopting holdings and reaching results that have both the intent and the effect of vitiating the Supreme Court’s 2008 decision. In contrast, defenders of the work of the court of appeals have stressed both the extent to which Boumediene necessarily left these issues open to judicial resolution, and the near-unanimity of the D.C. Circuit in virtually all of the post-Boumediene cases - especially in its decisions on the “merits.” Indeed, even if some of the D.C. Circuit’s judges have been outspoken in their criticisms of the Supreme Court, the fact remains that few of the court’s post-Boumedieneopinions have elicited published dissents, and none have successfully been taken en banc. And with one equivocal exception, the Supreme Court has denied certiorari in every post-Boumediene Guantánamo case it has thus far been asked to hear.
In the following symposium essay, I aim to look more carefully at the parameters of this debate, and the charge that the D.C. Circuit has spent the better part of the past three years subverting Boumediene. The essay contrasts the analysis and holdings of the court of appeals in some of its key decisions with the Supreme Court’s instructions - such as they were - in Boumediene, Hamdi, and, to a lesser degree, Hamdan. As I hope to show (and as may well not seem surprising), the answer to this charge lies somewhere in the middle. Although there are no holdings to which one can point as “proof” that the D.C. Circuit has refused to take the Supreme Court seriously, the court’s analysis as to evidentiary issues and the burden of proof, in particular, reveals some judges who read the Supreme Court’s work in this field for as little as it’s worth - if not less. And in public speeches and concurrences, senior D.C. Circuit Judges A. Raymond Randolph and Laurence Silberman have gone even further, belittling the Supreme Court for what Randolph referred to as the “mess” they made, and what Silberman described as a “charade,” prompted by the Court’s “defiant - if only theoretical - assertion of judicial supremacy” in Boumediene.
At the same time, some of the court’s holdings in its more controversial decisions, especially those involving the transfer or release of the Uighurs, can be criticized, if at all, as failures of imagination or misreadings of Supreme Court precedent (as controlling issues that may still be open). Whatever one’s view of the merits of these outcomes, it seems unfair to claim that, in these contexts, the D.C. Circuit is subverting Supreme Court rules that simply don’t exist.
Ultimately, my thesis is that while it smacks of hyperbole to refer to the D.C. Circuit as being engaged in a collective effort to subvert Boumediene, it is equally unconvincing to assert that the entire court of appeals has faithfully administered the Supreme Court’s commands in these cases. Instead, the most troubling aspects of the D.C. Circuit's post-Boumediene jurisprudence can all be traced to some combination of four jurists. Whether the rest of the D.C. Circuit is reaching the correct results in other cases is beyond the ambit of this essay; for present purposes, this essay’s central conclusion is that, in their opinions and their rhetoric, these four judges are effectively fighting a rear-guard action while their colleagues coalesce around substantive and procedural rules that are materially consistent with what little guidance the Supreme Court has provided in these cases - and, as importantly, that have the general endorsement of virtually all of the district judges and the executive branch.