Friday, March 4, 2011

Stevenson on Jury Selection and the Coase Theorem

Drury Stevenson (South Texas College of Law) has posted Jury Selection and the Coase Theorem to SSRN.

Abstract:      
The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation or bargaining occurs between the parties over the substantive or procedural events that unfold – despite the absence of any prohibitions on such negotiation. This lack of bargaining is particularly striking given that the litigants are in the same room, where they could discuss things face to face. Negotiation, whether over the ultimate outcome or over specific issues within the case, pervades every other segment of litigation, from the pre-filing phase until after the verdict. It is therefore odd that all negotiation abruptly stops when the parties meet in the courtroom for hours or days of jury selection; but this is merely an accident of history in how voir dire evolved. Viewed through the lens of the Coase Theorem, which connects the import of legal rules to the availability (or lack thereof) of negotiation between the parties – the “transaction costs” involved – the zero-negotiation aspect of jury selection gives special significance to the legal rules governing voir dire, as well as the interplay between those rules. Such rules include the number, timing, and sequencing of peremptory strikes, the rules governing Batson challenges, and “for cause” removal of jurors. In other words, the Coase Theorem provides a fresh framework for analyzing our jury selection procedures, and may suggest some modest reforms.

RJE

March 4, 2011 in Recent Scholarship | Permalink | Comments (0)

Thursday, March 3, 2011

Huang on Lightened Scrutiny

Bert I. Huang (Columbia University Law School) has posted Lightened Scrutiny to SSRN.

Abstract:      
The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance.

I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a surge of cases from a single federal agency flooded into the circuit courts. Two circuits bore the brunt, with their caseloads jumping more than forty percent. The other circuits were barely touched, by comparison. To sort cause from effect, I focus on outcomes not in the surging agency cases, but instead in a separate category: civil appeals. The two circuits flooded with agency cases began to overrule district court decisions less often - in the civil cases. This evidence of evolving deference raises the possibility of "silent splits": divergences among the circuits in their levels of appellate scrutiny, due not to articulated disagreements but to variation in caseloads.

RJE

March 3, 2011 in Recent Scholarship | Permalink | Comments (0)

Wednesday, March 2, 2011

Dodge on the Limits of Private Procedural Ordering

Jaime Dodge (Harvard Law School) has posted The Limits of Private Procedural Ordering to SSRN.

Abstract:      
Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs – most commonly, forum selection and choice of law provisions. I argue that these terms are mere instantiations of a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified by contract. Parties are no longer merely selecting between publicly-created procedural regimes but customizing the rules of procedure to be applied by the court – from statutes of limitations, discovery obligations and the admissibility of evidence, to burdens of proof, available remedies and standard of review – before a dispute arises. The resulting conversion of procedural rules from publicly-created guarantors of procedural justice to privately-bargained commodities fundamentally alters our system of civil procedure. 

But the impact transcends civil procedure, as the existing doctrine allows parties to use procedural terms not only to reinforce their substantive obligations under contract or statutory default rules, but to circumvent limits on the alienability of non-waivable rights – reducing even those substantive laws designated as mandatory to a mere set of default rules. 

I argue that while procedural contracting can often enhance both private and social welfare, we should not permit its use as a mechanism for contracting around existing limits on private ordering. The Article concludes by exploring the viability of a symmetrical approach, whereby any applicable limitations upon the substance of a contract are applied with equal force both to substantive terms and procedural terms. Likewise, this approach denies enforcement to procedural contracts seeking to modify elements of procedure that have been removed from the ambit of modification via stipulation during the litigation process, creating symmetry between pre- and post-dispute contracts. 

The degree of procedural alteration permitted is thus a function of the contracting parties’ right to modify or waive the underlying substantive right that gives rise to the claim at issue; the procedural contract is then treated as an ex post stipulation, for purposes of determining the judicial enforceability of the particular modification. In this way, the symmetrical approach permits procedural contracting to further the parties’ legitimate ends, while preventing its use as a method for circumventing limitations on private ordering.

RJE

March 2, 2011 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Commentary: Two Cheers for Henderson

From Professor Scott Dodson (William & Mary) comes the following commentary on yesterday’s SCOTUS decision in Henderson v. Shineski (covered earlier here)...

Yesterday, the Court handed down its decision in Henderson v. Shinseki (09-1036), holding that the statutory deadline for a veteran to file a “notice of appeal” with the Veterans Court, does not have jurisdictional consequences.  My immediate analysis of the decision is available on SCOTUSblog.

As I predicted in my oral-argument recap, the decision is unsurprising and, in my view, clearly correct, but the opinion features several interesting issues and developments. 

First, the Court phrased the question presented oddly, as whether the 120-day period has “jurisdictional consequences.”  A more straightforward question presented would simply have asked if the deadline was “jurisdictional,” as the Court had phrased such characterization issues in the past.  Perhaps the Court is finally coming around to the idea, one that I have advocated, that a rule can be nonjurisdictional yet have jurisdictional effects.  But, if so, the Court is making a bit of a mess of it because the approach from Arbaugh v. Y&H Corp.(2006) that the Court embraces is focused on congressional intent, and that intent is presumed to be reflected wholesale as jurisdictional or nonjurisdictional.  In other words, the determination is still focused on whether the deadline is jurisdictional or nonjurisdictional (resulting in the customary effects that normally flow from such characterizations), not on whether the deadline has jurisdictional consequences.  The Court determined that the deadline is nonjurisdictional, and then concluded, somewhat cryptically, that the deadline “does not have jurisdictional attributes.”  The Court appeared completely to elide the possibility that the rule was nonjurisdictional yet had jurisdictional effects.

Second, it is interesting that Alito wrote the opinion.  In oral argument, Justice Ginsburg, who has been the Court’s leading proponent of reducing jurisdictional characterizations in the past, contrasted the court-to-court review in Bowles v. Russell (2007) with the agency-to-court review in Henderson and specifically identified the non-adversarial procedure as a distinguishing feature of veterans’ claims.  The opinion relied heavily on these observations.  Justice Alito, by contrast, seemed concerned that the case-by-case approach advocated by Henderson’s counsel would erode clarity in characterization issues.  Nevertheless, Justice Alito’s opinion eschews a categorical rule and instead endorses the case-by-case approach, as guided by the generalized Arbaugh presumption.  One might have expected Justice Ginsburg, not Justice Alito, to author the unanimous opinion.  Perhaps assignment strategies in other cases are at play here.

Third, the Court validated Arbaugh’s presumption even for timing rules.  Arbaugh, which considered the employee-numerosity requirement of Title VII (that Title VII applies to employers with at least 15 employees), determined whether a statutory-coverage requirement was a requirement of jurisdiction or an element of the substantive claim.  Bowles, in fact, specifically distinguished Arbaugh on that basis, dismissing it as “not a time limit.”  This is the first time the Court has applied the Arbaugh presumption to a statutory time limit.  The vindication of Arbaugh over Bowles further narrows Bowles (an otherwise broadly worded opinion) to the particular statute (§ 2107) that it interpreted.

Fourth, the Court dismisses Stone v. INS (1995) without fanfare, but the Court probably should have explained more.  Stone, like Henderson, involved an agency-to-court review.  Stone characterized the deadline at issue there to be “mandatory and jurisdictional,” though, as the Court acknowledged, it did so “without elaboration.”  It appears that the Court distinguished Stone on the ground that immigration adjudications are highly adversarial, in stark contrast to veteran adjudications, but the Court’s analysis was not particularly probing.  The Court probably favored a less categorical approach that would leave Stone intact (at least for now) rather than a more categorical approach that would cause friction with Stone.

Overall, though, I thought the opinion does a good job navigating the precedent, staking out some clarity by embracing the Arbaugh presumption, and analyzing congressional intent.  I think the decision is correct, and I find its narrowing of Bowles to be a welcome development.

-          Scott Dodson

March 2, 2011 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 1, 2011

SCOTUS Decision in Henderson v. Shinseki

We covered earlier the Supreme Court’s grant of certiorari in Henderson v. Shinseki, the latest case in the Court’s ongoing struggle to distinguish “jurisdictional” requirements from “nonjurisdictional” ones. In an 8-0 decision (Justice Kagan took no part in the case), the Court holds that the 120-day deadline for challenging a denial of veteran’s benefits [38 U.S.C. § 7266(a)] is not jurisdictional.

In reaching this conclusion, Justice Alito’s opinion had to distinguish the Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), which had “held that the statutory limitation on the length of an extension of the time to file a notice of appeal in an ordinary civil case, 28 U.S.C. § 2107(c), is ‘jurisdictional.’” [Slip Op. at 4.] Justice Alito writes: “Bowles did not hold categorically that every deadline for seeking judicial review in civil litigation is jurisdictional. Instead, Bowles concerned an appeal from one court to another court. The ‘century’s worth of precedent and practice in American courts’ on which Bowles relied involved appeals of that type.”

According to Justice Alito, Bowles and other cases cited by the parties “involved review by Article III courts. This case, by contrast, involves review by an Article I tribunal as part of a unique administrative scheme. Instead of applying a categorical rule regarding review of administrative decisions, we attempt to ascertain Congress’ intent regarding the particular type of review at issue in this case.” Turning to the statute at issue in Henderson, Justice Alito writes:

The terms of the provision setting that deadline, 38 U.S.C. § 7266(a), do not suggest, much less provide clear evidence, that the provision was meant to carry jurisdictional consequences. . . . It is true that § 7266 is cast in mandatory language, but we have rejected the notion that “all mandatory prescriptions, however emphatic, are properly typed jurisdictional.” Thus, the language of § 7266 provides no clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.

[W]hat is most telling here are the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims. “The solicitude of Congress for veterans is of longstanding.” And that solicitude is plainly reflected in the VJRA, as well as in subsequent laws that “place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.” The contrast between ordinary civil litigation — which provided the context of our decision in Bowles — and the system that Congress created for the adjudication of veterans’ benefits claims could hardly be more dramatic. In ordinary civil litigation, plaintiffs must generally commence their suits within the time specified in a statute of limitations, and the litigation is adversarial. Plaintiffs must gather the evidence that supports their claims and generally bear the burden of production and persuasion. Both parties may appeal an adverse trial-court decision, see § 1291, and a final judgment may be reopened only in narrow circumstances. See Fed. Rule Civ. Proc. 60.

By contrast, a veteran seeking benefits need not file an initial claim within any fixed period after the alleged onset of disability or separation from service. When a claim is filed, proceedings before the VA are informal and nonadversarial. The VA is charged with the responsibility of assisting veterans in developing evidence that supports their claims, and in evaluating that evidence, the VA must give the veteran the benefit of any doubt. If a veteran is unsuccessful before a regional office, the veteran may obtain de novo review before the Board, and if the veteran loses before the Board, the veteran can obtain further review in the Veterans Court. A Board decision in the veteran’s favor, on the other hand, is final. And even if a veteran is denied benefits after exhausting all avenues of administrative and judicial review, a veteran may reopen a claim simply by presenting “new and material evidence.” Rigid jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans Court would clash sharply with this scheme.

--A 

March 1, 2011 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, February 28, 2011

Drahozal and Rutledge on Contract and Procedure

Christopher Drahozal (University of Kansas) and Peter Rutledge (University of Georgia) have posted Contract and Procedure to SSRN.

Abstract:      
This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and the scope of an arbitrator's ability to fill gaps in parties' procedural contracts (at issue in the Supreme Court's recent Stolt-Nielsen decision). At an empirical level, this paper taps a largely unexplored database of credit card contracts available at the Federal Reserve in order to examine actual practices in the use of procedural contracts.

RJE

February 28, 2011 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Drahozal and Rutledge on Contract and Procedure

Christopher Drahozal (University of Kansas) and Peter Rutledge (University of Georgia) have posted Contract and Procedure to SSRN.

Abstract:      
This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and the scope of an arbitrator's ability to fill gaps in parties' procedural contracts (at issue in the Supreme Court's recent Stolt-Nielsen decision). At an empirical level, this paper taps a largely unexplored database of credit card contracts available at the Federal Reserve in order to examine actual practices in the use of procedural contracts.

RJE

February 28, 2011 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Decision of Interest: More on Removal Deadlines

We covered earlier the Fourth Circuit’s en banc decision in Barbour v. International Union, which perpetuated a circuit split over how to calculate removal deadlines in multiple-defendant cases. That same week, the Ninth Circuit weighed in on the other side of the divide. The decision is Destfino v. Reiswig, 2011 WL 182241, 2011 U.S. App. LEXIS 1375. Per Chief Judge Kozinski:

We adopt the later-served rule as the wiser and more equitable approach. This rule doesn't go so far as to give already-served defendants a new thirty-day period to remove whenever a new defendant is served, as that could give a defendant more than the statutorily prescribed thirty days to remove. See 28 U.S.C. § 1446(b). Rather, we hold that each defendant is entitled to thirty days to exercise his removal rights after being served. Because [the later-served defendant] removed the case within thirty days from when it was served, the removal was timely.

(Hat Tip: Benjamin Roesch)

--A

February 28, 2011 in Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)