November 18, 2011
Pilot Project on Initial Discovery Protocols for Employment Cases
Now available on the Federal Judicial Center’s website are Initial Discovery Protocols for Employment Cases Alleging Adverse Action. From the Introduction:
The Initial Discovery Protocols for Employment Cases Alleging Adverse Action provide a new pretrial procedure for certain types of federal employment cases. As described in the Protocols, their intent is to “encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.” Individual judges throughout the United States District Courts will pilot test the Protocols and the Federal Judicial Center will evaluate their effects.
This project grew out of the 2010 Conference on Civil Litigation at Duke University, sponsored by the Judicial Conference Advisory Committee on Civil Rules for the purpose of re-examining civil procedures and collecting recommendations for their improvement. During the conference, a wide range of attendees expressed support for the idea of case-type-specific “pattern discovery” as a possible solution to the problems of unnecessary cost and delay in the litigation process. . . . Following the conference, Judge Lee Rosenthal convened a nationwide committee of attorneys, highly experienced in employment matters, to develop a pilot project in this area. Judge John Koeltl volunteered to lead this committee. By design, the committee had a balance of plaintiff and defense attorneys. . . . The committee’s final product is the result of rigorous debate and compromise on both sides, undertaken in the spirit of making constructive and even-handed improvements to the pretrial process.
The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use a basis for discussion.
(Hat Tip: Emery Lee)
Robertson on The Merits Problem in Personal Jurisdiction
Cassandra Burke Robertson (Case Western University School of Law) has posted The Inextricable Merits Problem in Personal Jurisdiction to SSRN.
In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in cases involving modern “commerce and communication.” When the Court chooses to accept such a case, it will likely be to resolve an emerging issue that has divided lower courts - the proper scope of the Calder effects test.
This Article seeks to limit the reach of the effects test. It argues that many of the conflicting cases in this area can be reconciled only by acknowledging courts’ implicit assumptions about the underlying merits of the case. The Article then demonstrates that once these assumptions are made explicit, the merits of the cases are so inextricably intertwined with the jurisdictional issues that courts cannot resolve the jurisdictional question without fully trying the case on the merits - an action that would require the defendant to forfeit the very constitutional interests that the personal jurisdiction doctrine was developed to protect. Finally, the Article examines how the development of the Internet destroyed previous assumptions about the litigation resources of likely defendants. It concludes that narrowing the effects-test doctrine would minimize the cost of forum selection for both plaintiff and defendant, would promote online commercial development, and would better protect a robust speech environment.
November 17, 2011
Thomas on the Summary Judgment Trilogy
Prof. Suja Thomas (Illinois) has posted on SSRN Before and After the Summary Judgment Trilogy, which is forthcoming in the Loyola University Chicago Law Journal. It was the keynote speech for Seattle University’s recent 25th Anniversary Summary Judgment Trilogy Colloquium, covered earlier here.
Here’s the abstract:
In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.
November 14, 2011
Maxeiner on American Civil Justice in International Perspective
James Maxeiner (University of Baltimore) has recently published a book entitled Failures of American Civil Justice in International Perspective.
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system.