December 7, 2012
SCOTUS Cert Grants of Interest: Hollingsworth v. Perry; U.S. v. Windsor; Oxford Health Plans v. Sutter
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
Not surprisingly, the cert grants in two cases on same-sex marriage—Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307)—have garnered considerable attention. The Court asked the parties in these cases to brief some additional questions that may be of particular interest to our readers, including an issue that’s has been all over the Court’s docket this Term – standing.
In Hollingsworth, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: whether petitioners have standing under Article III, §2 of the Constitution in this case.
In Windsor, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
Dodson on Dismissal Rates in Federal Civil Cases
Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.
In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.
The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.
December 4, 2012
Polinsky & Shavell on Costly Litigation
Professors Mitchell Polinsky (Stanford) and Steven Shavell (Harvard) have posted on SSRN a draft of their article, Costly Litigation and Optimal Damages. Here’s the abstract:
A basic principle of law is that damages paid by a liable party should equal the harm caused by that party. However, this principle is not correct when account is taken of litigation costs, because they too are part of the social costs associated with an injury. In this article we examine the influence of litigation costs on the optimal level of damages, assuming that litigation costs rise with the level of damages.