Friday, October 26, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Stephen Vladeck (American University) entitled Federal Crimes, State Courts, and Palmore. It reviews Michael G. Collins & Jonathan Remy Nash’s recent article, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011). Steve’s review begins:
In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.
And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning.
Tuesday, October 23, 2012
The U.S. Courts website has the announcement here. The new chairs are:
Judge Lawrence L. Piersol (D. S.D. ), succeeding Judge David A. Katz (N.D. Ohio) as chair of the Committee on Audits and Administrative Office Accountability;
Judge Catherine C. Blake (D. MD), succeeding Judge Claire V. Eagan (N.D. Okla.) as chair of the Committee on Defender Services;
Judge Joel A. Pisano (D. NJ), succeeding Judge George H. King (C.D. Cal.) as chair of the Committee on the Administration of the Magistrate Judges System;
Judge Jeffrey S. Sutton (6th Cir.), succeeding Judge Mark R. Kravitz (D. Conn.) as chair of the Committee on Rules of Practice and Procedure; and
Judge Steven M. Colloton (8th Cir.), succeeding Judge Jeffrey S. Sutton (6th Cir.) as chair of the Advisory Committee on Appellate Rules.
Nick Landsman-Roos (J.D. 2013, Stanford) has posted on SSRN his note, Front-End Fiduciaries: Pre-Certification Duties and Class Conflict, which will appear in the Stanford Law Review. Here’s the abstract:
On August 31, 2012, the Supreme Court granted certiorari in Standard Fire Insurance v. Knowles to decide whether named plaintiffs may defeat removal under the Class Action Fairness Act of 2005 by filing 'binding stipulations' with complaints in state court, capping a classes’ recovery at under $5 million (the jurisdictional threshold for removal). The case presents an opportunity to address an issue under-theorized in the existing literature on class actions: what fiduciary duties, if any, are owed by a plaintiff's attorney to potential absent class members in a class action prior to certification? What are the contours or scope of such a pre-certification fiduciary duty?
This paper fills two gaps in the literature about fiduciary duties (or more broadly conflicts of interest) in class actions. First, there has been little scholarly treatment of the scope and contours of an attorney’s fiduciary duty to class members prior to class certification - that is, outside the strictures of Rule 23. Pre-certification conflicts are far more difficult to address because no federal rules-based framework exists for addressing pre-certification conduct. Second, this is the first academic treatment of means-based decision making in class actions. Unlike post-certification inquiries into conflicts of interest concerning settlements, this inquiry is particularly complicated because there is often inadequate information about likely outcomes when certain means are employed. Conceivably, there is considerably more grey area surrounding means-related decision making. In the pre-certification stage, without information about how the litigation will run its course, attorneys make decisions that could credibly be defended as in the best interest of the class, or as in breach of the attorney’s fiduciary obligations to those class members.
In discussing pre-certification fiduciary duties, this paper investigates the legitimacy of 'binding stipulations' as a case study. In addition to this specific analysis, this paper offers a specific formulation of the scope of attorneys’ pre-certification fiduciary duties: an attorney breaches his fiduciary duty to class members when he makes a decision that prejudices the substantive legal rights of absent class members without notice and opportunity for objection. When an action potentially prejudices or does prejudice a substantive legal right of absent class members, an attorney should have an opportunity to offer a good faith defense - that the course of conduct was undertaken in a good faith belief that it would maximize the class’s recovery. That defense, in turn, can be evaluated in terms of whether it is legitimate, genuine, or pre-textual.