August 16, 2012
Mulligan and Staszewski on The Supreme Court's Regulation of Civil Procedure
Just published in UCLA Law Review: "The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law" by Lumen N. Mulligan and Glen Staszewski.
In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present a justification for favoring rulemakings over adjudications by analogy to administrative law. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron step-two-like ambiguity, or (c) seeks a resolution that approximates a legislative rule. Only when traditional tools of statutory interpretation—text, history, and purpose—will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking.
August 14, 2012
SCOTUS Cert Grant on Mootness (and International Child Abduction): Chafin v. Chafin
Under the International Child Abduction Remedies Act 42 U.S.C. §§ 11601-11610 (2000) and the Hague Convention on the Civil Aspects of International Child Abduction a parent may file a petition for return of their minor child/custodian to the child's country of habitual residence if it appears that the child has been wrongfully abducted. Once an Order has issued from the District Court returning the child to the petitioning custodian and an appeal has been filed by the respondent the Circuits are spilt as to whether the return of the child to the country of habitual residence renders the appeal moot. The Eleventh Circuit, in Bekier v. Bekier, 248 F.3d 1051 (2001), held that such an appeal is clearly moot since the relief sought by petitioner has been granted and the Court had "no authority 'to give opinions on moot questions or abstract propositions ... which cannot affect the matter in issue in the case before [the Court]''' Bekier at 1054. The Court provided that no actual affirmative relief could be provided to the appellant. However, this decision and others like it has come under great scrutiny by other Circuits. Specifically the Fourth Circuit, in Fawcett v. McRoberts, 326 F.3d 491 (2003), has held that "[c]ompliance with a trial court's order does not moot an appeal (of a Petition for Return of Custody under the aforementioned Acts) if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action." Fawcett at 494. The Fourth Circuit in Fawcett held that even after the return of a child in compliance with the lower court's order that "this Court can [affect the matter in issue]." Id. To consider the merits of an appeal and potentially reverse the lower court's decision would have a considerable effect. In contrast, the Eleventh Circuit's unfathomable position on this particular matter eliminates the basis and purpose of the appeal process.
Whether an appeal of a District Court's ruling on a Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction becomes moot after the child at issue returns to his or her country of habitual residence, as in the Eleventh Circuit's Bekier case, leaving the United States Court system lacking any power or jurisdiction to affect any further issue in the matter or should the United States Courts retain power over their own appellate process, as in the Fourth Circuit's Fawcett case, and maintain jurisdiction throughout the appellate process giving the concerned party an opportunity for proper redress.
Study Suggests That Arbitrator Background and Claimant Representation Affect Securities Arbitration Outcomes
Stephen J. Choi, Jill E. Fisch and Adam C. Pritchard have posted a paper on SSRN entitled “The Influence of Arbitrator Background and Representation on Arbitration Outcomes.”
The conclusion states:
In this study we examine the relationship between an arbitrator’s background and the outcome in securities arbitration. For the public arbitrators, we find that industry experience and status as a professional arbitrator are correlated with statistically significant decreases in arbitration awards. This decrease, however, is tempered when claimant is represented by counsel. We also find that prior experience as a regulator for the public arbitrators is correlated with a statistically significant increase in arbitration awards. We do not find substantial evidence that the presence of an attorney for the respondent mitigates this effect. Turning to the industry arbitrator, we find that industry arbitrators with regulatory experience correlate with a statistically significant decrease in arbitration awards. This effect, however, is mitigated when the claimants have an attorney.
Our findings have important implications for how FINRA regulates arbitrator background into the future. Our most consistent finding is that representation by counsel can reduce or eliminate the effect of arbitration background on arbitration outcomes. Supporters of arbitration often highlight its streamlined proceedings and lower costs compared to litigation as an advantage for small claimants. Our findings suggest that, even with streamlined procedures, claimants who lack attorneys are disadvantaged.
August 13, 2012
Discovery Sanctions Order in Apple Patent Litigation
U.S. District Judge Leonard Davis of the Eastern District of Texas imposed sanctions last week on Apple for halting a deposition of one of its employees, Mr. Allié, in a patent dispute. Might be of use for civil procedure professors looking for a current example for teaching purposes. Below is the portion of the order setting forth the sanctions:
(1) Apple must pay VirnetX’s reasonable attorneys’ fees and costs associated with responding to Apple’s motion for a protective order and the filing of VirnetX’s motion for sanctions;
(2) Apple must produce Mr. Allié for completion of his deposition at a time and location selected by VirnetX, all costs of such deposition to be paid by Apple. Apple shall not, through counsel or otherwise, further communicate in any way with Mr. Allié regarding the patents about which the witness was testifying prior to termination of his deposition. To the extent Apple has communicated with Mr. Allié about the patents since his deposition was terminated, Apple and Mr. Allié are deemed to have waived any privilege they might otherwise assert as to these conversations, and the witness will truthfully answer any and all questions regarding any such communications between Mr. Allié and Apple or any of its counsel, employees or representatives. Apple is precluded from asking any questions of the witness with regard to the comparison of the two patents.
(3) However, in lieu of Sanction #2 above, Apple may elect the following sanction and no further deposition of Mr. Allié will be taken:
a. Apple is precluded from calling Mr. Allié at trial, or providing any rebuttal or counter-designations from Mr. Allié’s deposition testimony regarding the comparison of ‘225 application and ‘135 patent; and
b. The Court will give the following adverse inference instruction to the jury at an appropriate time during the trial:
“During the deposition of Mr. Allié, counsel for VirnetX asked questions related to comparison of VirnetX’s ‘135 patent and Apple’s ‘225 patent application. Counsel for Apple improperly terminated the deposition and did not permit Mr. Allié to answer these questions. You may, although you are not required to, infer that had Apple’s counsel not terminated Mr. Allié’s deposition, the testimony provided would have been unfavorable to Apple, and that Apple’s counsel’s reason for terminating the deposition was to prevent such unfavorable testimony from being presented to you in this case.”
This choice of sanctions allows Apple to complete the deposition and avoid the adverse inference instruction, but prohibits it from potentially profiting from having stopped the deposition.
(Hat Tip: Beth Thornburg, via twitter at @btSMU)