August 19, 2011
Greenfest on the Dynamics of Standing
Seth W. Greenfest (University of Washington, Department of Political Science) has posted The Dynamics of Standing: How Congress and the Supreme Court Determine Access to the Federal Courts to SSRN.
Rules of access, including whether litigants will have standing to sue, are determined by judges during the legal process and by legislators during the legislative process. Open access encourages litigation while closed access discourages litigation. Standing has changed over time in response to decisions made by lawmakers and judges. Conceptions of judicial power should account for legislatively-created opportunities for courts to participate in the policy-making process. To demonstrate the Dynamics of Standing, this paper traces the development of standing between 1921 and 2006 and examines decisions made by the Supreme Court and Congress regarding access to the courts.
Be Careful What You Wish For? AT&T Seeks To Block Arbitrations
Four months ago, AT&T won a closely-watched Supreme Court case involving mandatory arbitration provisions that forbid classwide arbitration proceedings. The Court in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), held that the Federal Arbitration Act compelled enforcement of a contract that required “arbitration of all disputes between the parties, but required that claims be brought in the parties’ ‘individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.’” Id. at 1744.
In light of Concepcion, AT&T customers wishing to challenge AT&T’s pending merger with T-Mobile on antitrust grounds have done so via individual demands for arbitration. AT&T has now filed multiple lawsuits in federal court seeking to enjoin those arbitrations. AT&T’s argument seems to be that these arbitrations are really classwide arbitrations (and hence forbidden under the arbitration agreement) even though each arbitration demand is initiated separately by an individual customer.
AT&T’s complaint in one of its recent lawsuits [AT&T Mobility LLC v. Gonnello, 11-CV-5636 (S.D.N.Y.)] puts it this way: “Although styled as a request for arbitration on an individual basis, each Demand is actually a representative action.” [¶ 33]. In particular, each customer seeks “an injunction flatly prohibiting the merger or, alternatively, imposing global restrictions on the merger.” [¶ 34]. Thus, “the relief sought by each [customer] bears all of the characteristics of a representative action: it would affect a broad class . . . and even if just one of the [customers] prevails, the interest of the entire class would be affected.” [¶ 36].
For recent coverage see:
- ABA Journal (After Supreme Court Win Forcing Customers to Arbitrate, AT&T Now Sues to Stop the Arbitration)
- Reuters (AT&T sues customers seeking to block T-Mobile deal)
Faculty Hiring Announcement: Oklahoma
The Faculty Lounge has posted a hiring announcement from the University of Oklahoma College of Law. One area of need is Civil Procedure.
BP Oil Spill MDL Gushes On
Judge Barbier in the Eastern District of Louisiana held a monthly status conference on August 12, 2011. The minute order entered thereafter hints at a plethora of civil procedure issues going on in the cases. At one point, without further explanation, the court “reminded parties of the public website for MDL 2179.”
--Patricia Hatamyar Moore
August 18, 2011
Second Circuit Reverses Class Certification and Settlement After Remand from SCOTUS
We covered earlier last year’s Supreme Court’s decision in Reed Elsevier, Inc. v. Muchnick, which rejected the argument that a failure to comply with 17 U.S.C. § 411(a)’s registration requirement deprived a federal court of subject-matter jurisdiction over copyright infringement claims. That opened the door for the Second Circuit to consider the certification and settlement of a class action based on the unauthorized electronic reproduction of work by freelance authors.
Yesterday, the Second Circuit reversed the district court’s certification of the class and approval of the settlement. The case is In re: Literary Works in Electronic Databases Copyright Litigation, 2011 WL 3606725, and Judge Walker’s majority opinion begins:
Plaintiffs in this consolidated class action allege copyright infringements arising from defendant publishers’ unauthorized electronic reproductions of plaintiff authors’ written works. The United States District Court for the Southern District of New York (George B. Daniels, Judge) certified the class for settlement purposes and approved a settlement agreement (“Settlement”) over the objection of ten class members (“objectors”). In this appeal, objectors contend that (1) approval of the Settlement was impermissible because it released claims beyond the factual predicate of the case, (2) class certification was improper because subgroups within the class have conflicting interests, and (3) the district court committed procedural errors in certifying the class and approving the Settlement. Although we reject objectors’ arguments regarding the release, we conclude that the district court abused its discretion in certifying the class and approving the Settlement, because the named plaintiffs failed to adequately represent the interests of all class members. We do not reach the procedural challenges, which are moot in light of our class certification holding.
Judge Straub issued a partial dissent, which begins:
The majority observes that the Settlement in this case “was the product of an intense, protracted, adversarial mediation” with “highly respected and capable” mediators that provided assurance that the “‘proceedings were free of collusion and undue pressure.’” Maj. Op. at [22-23] (quoting D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001)). While conceding this point, however, as well as that the Settlement offered “some ‘structural assurance of fair and adequate representation,’” Maj. Op. at  (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 627 (1997)), the majority holds that the District Court abused its discretion in certifying the class because not “enough” was done to “satisfy [Federal] Rule [of Civil Procedure] 23(a)(4),” Maj. Op. at . I disagree. I respectfully dissent because it is my view that the named plaintiffs adequately represent the interests of all class members as required by Rule 23(a)(4) and that the District Court was well within its discretion to certify the class and approve the Settlement. I do concur with the majority that the Settlement’s release provision is permissible.
(Hat Tip: Howard Bashman)
Revised updated study of Iqbal’s quantitative effect
I have finally finished my revisions made after the March 2011 Federal Judicial Center study, and, with some trepidation, just posted the revised manuscript on SSRN.
Any and all comments and criticisms gratefully accepted.
--Patricia Hatamyar Moore
Faculty Hiring Announcement: Temple
The Faculty Lounge has posted a hiring announcement from Temple University James E. Beasley School of Law. One area of need is Civil Procedure.
August 17, 2011
For your “tort reform” file: Recent study of medical malpractice closed claims shows no payment in 78% of claims
A recent study published in the New England Journal of Medicine examined malpractice data (closed claims only) from 1991 through 2005 for all physicians who were covered by a large professional liability insurer with a nationwide client base (40,916 physicians and 233,738 physician-years of coverage). The study found that 78% of all closed claims did not result in payments to claimants. Of the claims on which there was a payment, the mean indemnity payment was $274,887, and the median was $111,749. The proportion of physicians facing a claim each year ranged from 19.1% in neurosurgery, 18.9% in thoracic–cardiovascular surgery, and 15.3% in general surgery to 5.2% in family medicine, 3.1% in pediatrics, and 2.6% in psychiatry.
The article continues:
Outlier awards, which were defined as those exceeding $1 million, were infrequent, in part because the full size of outlier awards would not have been recorded if they had exceeded individual policy limits. Among all physician-years, 66 payments exceeded this amount, accounting for less than 1% Our study uncovered an important aspect of malpractice liability: the high likelihood of claims that do not result in payments to a plaintiff. Annual rates of claims leading to indemnity payments ranged from 1% to 5% across specialties, whereas rates of all claims ranged from 5% to 22%. Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment.
Our results may speak to why physicians consistently report concern over malpractice . . . Concern among physicians over malpractice risk varies far less considerably across states than do objective measures of malpractice risk according to state (e.g., rates of paid claims, average payment sizes, malpractice premiums, and state tort reforms). For example, 65% of physicians practicing in states in the bottom third of rates for paid malpractice claims (5.5 paid claims per 1000 physicians) express substantial concern over malpractice, as compared with 67% of physicians in the top third (14.6 claims per 1000 physicians). Although these annual rates of paid claims are low, the annual and career risks of any malpractice claim are high, suggesting that the risk of being sued alone may create a tangible fear among physicians.
Hat tip to MedPage Today, “Malpractice: Many Claims but Few Big Paydays,” by Todd Neale.
--Patricia Hatamyar Moore
The Dangers of Being a First Year Associate
As reported by the WSJ Law Blog, "New York City lawyer Gregory Berry has sued his former firm for more than $75 million, claiming the firm fired him for exhibiting intelligence and creativity."
Parry on Conflict of Laws and Oklahoma's "Sharia Law" Amendment
Professor John Parry (Lewis & Clark) has posted on SSRN a copy of his article, Oklahoma's Save Our State Amendment and the Conflict of Laws. Here’s the abstract:
In November 2010, Oklahoma voters adopted the “Save Our State Amendment,” which provides a catalog of legal sources that Oklahoma courts may use when deciding cases, as well as a catalog of forbidden sources, which include “the legal precepts of other nations or cultures,” international law, and “Sharia Law.” A federal district court has enjoined the entire amendment in response to establishment and free exercise concerns (and without considering whether the “Sharia Law” portions could be severed from the rest of the amendment).
Much of the reaction to the amendment has focused on these same constitutional issues and related political concerns. This essay, by contrast, approaches the Save Our State Amendment from a conflict of laws perspective, and I treat it primarily as a choice of law statute. Seen in this way, the Save Our State Amendment is a wretched piece of work, at least under the rather formal issue spotting analysis that I present here. If the amendment goes into effect – whether in whole or in part – it will raise a host of questions, some of them difficult, that could take years to work their way through the Oklahoma judicial system.
The first section of this essay addresses the scope of the amendment – the entities to and the situations in which it applies. The second section considers the amendment’s impact on Oklahoma choice of law doctrine through its list of approved and forbidden legal sources for Oklahoma courts (and, by extension, federal district courts in Oklahoma when hearing diversity cases). The final section is a brief conclusion that assesses the larger impact of the issues I identify in this essay.
I do not claim to have identified or fully addressed every issue that the amendment raises or every problem that it creates, and I have largely left discussion of the religion clauses issues to other writers, but I trust that this essay says enough to convince even those who support the amendment’s political goals that this is an irresponsible way to make law.
Faculty Hiring Announcement: Syracuse
The Faculty Lounge has posted a hiring announcement from Syracuse University. One area of need is civil procedure.
August 16, 2011
Coleman on The Vanishing Plaintiff
Professor Brooke Coleman (Seattle University) has posted on SSRN a draft of her article The Vanishing Plaintiff, which is forthcoming in the Seton Hall Law Review. Here’s the abstract:
What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world - the one without Bakke and his legal claim - is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime - they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs - who the article calls vanishing plaintiffs - are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime.
August 15, 2011
Distinguishing Iqbal, Seventh Circuit holds allegations against Donald Rumsfeld adequately state a Bivens claim
In Vance v. Rumsfeld, 2011 WL 3437511 (7th Cir. Aug. 8, 2011), plaintiffs, who are American citizens and civilians, alleged that they were detained and tortured by U.S. military personnel in Iraq for several months in 2006, then were released without ever being charged with a crime. Plaintiffs had worked for a privately-owned Iraqi security services company and began whistle-blowing when they became suspicious that the company was involved in corruption and other illegal activities. Their detention by the U.S. military followed.
Plaintiffs filed a Bivens claim alleging Fifth Amendment substantive due process violations (Count I) against Donald Rumsfeld, the former Secretary of Defense, and others, for torture and cruel, inhuman treatment, among other claims. Defendant Rumsfeld filed a 12(b)(6) motion based in part on the asserted failure of plaintiffs’ complaint to allege his personal responsibility for their treatment and on qualified immunity.
The district court denied the motion to dismiss Count I, and the Seventh Circuit (hearing the appeal under Sections 1291 and 1292(b)) affirmed:
To proceed with their Bivens claims, plaintiffs must allege facts indicating that Secretary Rumsfeld was personally involved in and responsible for the alleged constitutional violations. See Iqbal, 129 S.Ct. at 1948–49 . . . “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. As the Supreme Court said in Iqbal, “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Id. Unlike in Iqbal, which was a discrimination case, where the plaintiff was required to plead that the defendant acted with discriminatory purpose, the minimum knowledge and intent required here would be deliberate indifference, as in analogous cases involving prison and school officials in domestic settings. . . . .
The Federal Rules of Civil Procedure impose no special pleading requirements for Bivens claims, including those against former high-ranking government officials. See Swierkiewicz v. Sorema N.A ., 534 U.S. 506, 513–14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The notice pleading standard under Rule 8 of the Federal Rules of Civil Procedure applies, and a plaintiff is required to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The complaint will survive a motion to dismiss if it meets the “plausibility” standard applied in Iqbal and Twombly. . . . .
We agree with the district court's observation in this case: “Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials. It is not, however, a categorical bar on claims against these officials.”
The court then summarized the complaint’s extensive and detailed allegations of Rumsfeld’s involvement, concluding:
We agree with the district court that the plaintiffs have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention. . . .
We agree with the district court that plaintiffs have articulated facts that, if true, would show the violation of a clearly established constitutional right. In fact, the defendants' argument to the contrary evaporates upon review. The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?
--Patricia Hatamyar Moore
Grossi on Harmonization of Jurisdictional Rules
Professor Simona Grossi (Loyola – Los Angeles) has posted on SSRN a draft of her article, Rethinking the Harmonization of Jurisdictional Rules, which is forthcoming in the Tulane Law Review. Here’s the abstract:
In the aftermath of the various unsuccessful attempts by The Hague Conference to devise an international convention on jurisdiction and recognition and enforcement of judgments, this work examines what the common law and civil law delegations to the Conference considered irreconcilable differences between their respective jurisdictional laws. The Article studies the historical and functional evolution of these allegedly irreconcilable jurisdictional categories, their underlying ideas (e.g., “minimum contacts” and due process analysis, doing-business jurisdiction, forum non conveniens, tag jurisdiction), and suggests a new method of analysis, which generates a unified approach to jurisdictional law and choice of laws rules. The analysis unearths the original symmetries between jurisdictional law and choice of law rules in common law and civil law systems that existed in the past, as well as the various similarities still existing today despite the different labels sometimes used, and it exposes some preconceptions that make some of these categories and principles falsely appear to be irreconcilable. In fact, by solving some representative problem situations under both of the allegedly different regimes, the Article shows that the solutions that these systems offer are, most of the times, similar. This is because there is a strong interaction between jurisdictional law and choice of law rules within each individual system and across legal systems, and because the existing differences are not irreconcilable but merely the product of recent developments. The Article posits that conflict of laws rules governing civil and commercial matters should be harmonized, and that such harmonization is feasible and worth pursuing. Therefore, rather than once more suggesting to adopt an international convention on jurisdiction and recognition and enforcement of judgments only, this work suggests the adoption of an international convention on conflict of laws rules. The proposed convention could adopt similar criteria or “connecting factors” to identify the judge with jurisdiction over a controversy and the law to govern it; this will eventually make the judgment rendered at the end of the proceeding suitable for recognition and enforcement in the countries that ratify the convention. Such a convention would apply to litigation on civil and commercial matters only. The identification of the judge and of the governing law would significantly enhance the efficiency and fairness of this type of litigation.