October 21, 2011
Lahav on Trial by Formula
Alexandra Lahav (University of Connecticut) has posted The Case for Trial By Formula to SSRN.
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality will improve our civil justice system.
To date, the discussion about civil litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass torts context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others are treated in similar circumstances. This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.
October 19, 2011
Borchers on the New PJ Cases
Patrick Joseph Borchers (Creighton University School of Law) has posted J. McIntyre Machinery, Goodyear, and the Incoherence of the Minimum Contacts Test to SSRN.
On June 27, 2011, when J. McIntyre Machinery Ltd. v. Nicastro and Goodyear Dunlop Tire Operations, S.A. v. Brown were handed down, it marked the first time in almost a quarter century that the United States Supreme Court engaged in an extended discussion of the minimum contacts test. That test has for nearly seven decades set the basic parameters of measuring the constitutionality of exercises of state-court personal jurisdiction. The cases were generally assumed to have been accepted for review by the Supreme Court to clarify two areas in which the constitutional boundaries of state-court jurisdiction were unclear. The first stemmed from the Supreme Court's 1987 decision in Asahi Metal Industry Co. v. Superior Court, which produced no majority opinion and thus left unclear whether the forum state sale of an allegedly dangerous product that caused injury to the plaintiff there sufficed to establish jurisdiction. The second was the quantum of unrelated business contacts in the forum state necessary to create jurisdiction. Unfortunately, as to the first issue, the Supreme Court again produced no majority opinion, and left the subject even more muddled than before. The plurality opinion written by Justice Kennedy attempted to re-ground state-court jurisdiction in a dubious sovereignty theory that the Supreme Court had rejected several times before. As to the second issue, the Court held that unrelated sales in the forum were not enough to establish jurisdiction. The Supreme Court appeared to announce a new test that required the defendant's contacts with the forum state be enough so that the defendant is "essentially at home" in the forum, but provided little elaboration as to what is meant by that phrase. This article argues that the two new cases represent a continuation of the Supreme Court's vacillating and unclear jurisprudence in this area, and that the fundamental difficulty is that the Court lacks any clear constitutional rationale for limiting exercises of assertions of state-court jurisdiction.
H/T Legal Theory Blog
October 17, 2011
Two SCOTUS Cert Grants of Interest
Today, the Supreme Court granted cert in two cases that should be of interest to civ pro and fed courts profs.
Kiobel v. Royal Dutch Petroleum, No. 10-1491, to be argued with Mohammad v. Rajoub, No. 11-88. In the ruling below in Kiobel, residents of Nigeria brought claims under the Alien Tort Statute against corporations (as opposed to individuals within those corporations) that allegedly aided and abetted the Nigerian government in committing human rights abuses directed at the plaintiffs, and the appeals court held their claims fell outside the limited jurisdiction provided by the Alien Tort Statute and had to be dismissed for lack of subject matter jurisdiction. In Mohammed, the court below held that only a natural person is amenable to suit under the Torture Victim Protection Act, and the sons and widow of a decedent allegedly tortured and killed by the Palestinian Authority and the Palestine Liberation Organization could not sue the PA and the PLO under the TVPA. The petitions for review asked whether the issue of corporate civil tort liability under the Alien Tort Statute is a merits question or an issue of subject matter jurisdiction, and whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions, or genocide.
Elgin v. Dept. of Treasury, No. 11-45. Do federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees, or does the Civil Service Reform Act impliedly preclude that jurisdiction?