Thursday, February 2, 2012
Scott Baker and Pauline Kim (both of Washington University) have posted A Dynamic Model of Doctrinal Choice to SSRN.
This paper develops a repeated game model of the choice of doctrinal form by a higher court. Doctrine can take any point along a continuum from more determinate, rule-like legal commands to more flexible, standard-like directives. In deciding a case, the Supreme Court not only decides on a substantive outcome, but also chooses where on this continuum to set the doctrine. The lower court then applies the legal command to future cases. In doing so, it may wish to take into account new information, but the cost of doing so varies with the form of the legal doctrine. The model shows that in equilibrium doctrine oscillates over time between more rule-like commands and more standard-like commands. What triggers the shift in doctrinal form are the lower court's "mistakes" when trying to implement the standard in the way the Supreme Court prefers. The mistakes induce the Supreme Court to cabin the lower court's discretion by issuing more rule-like legal commands for a certain number of periods. Too much constraint, however, produces error costs when the lower court cannot adjust the law appropriately to new circumstances, leading to a shift back to more standard-like doctrine. We derive comparative statics showing how the length of the constraint phase responds to the degree of preference conflict between the courts. Finally, we illustrate the features of the model through a doctrinal case study of the law governing the voluntariness of confessions.
Wednesday, February 1, 2012
In Ross v. RBS Citizens, N.A., No. 10-3848, 2012 WL 251927 (7th Cir. Jan. 27, 2012), employees of over 100 Illinois branches of the bank d/b/a Charter One brought a class action alleging that Charter One had an unofficial policy of denying employees overtime pay, in violation of the FLSA and the Illinois Minimum Wage Law (“IMWL”).
The district court certified two classes for the IMWL (the opinion does not mention any certification of the FLSA claim):
All current and former non-exempt [e.g., employees like tellers and personal bankers who performed “routine” tasks] employees of [Charter One] who have worked at their Charter One retail branch locations in Illinois at any time during the last three years, who were subject to [Charter One's] unlawful compensation policies of failing to pay overtime compensation for all hours worked in excess of forty per work week.
All current and former Assistant Branch Manager employees of [Charter One] who have worked at their Charter One retail branch locations in Illinois at any time during the last three years, who were subject to [Charter One's] unlawful compensation policies of failing to pay overtime compensation for all hours worked in excess of forty per work week.
As to the first class, Ross [the first class representative] “alleges that Charter One has an unofficial policy of denying overtime pay to its non-exempt employees by: (1) instructing them not to record hours worked per week over forty; (2) erasing or modifying recorded overtime hours; (3) giving them “comp time” instead of paying overtime; and (4) requiring them to perform work during unpaid breaks.”
As to the second class, Kapsa [the second class representative] “alleges that Charter One illegally denies ABMs overtime pay by misclassifying their positions as exempt even though ABMs spend the majority of their time performing non-exempt work.”
Charter One appealed the certification on the narrow basis that it did not comply with Rule 23(c)(1)(B) (“An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).”). After oral argument, the Seventh Circuit asked for additional briefing on whether the two classes satisfied the commonality requirement following the “clarification” of that requirement by Wal-Mart v. Dukes.
As to the 23(c)(1)(B) issue, the court adopted the Third Circuit’s analysis of that subsection in Wachtel ex rel. Jesse v. Guardian Life Ins., 453 F.3d 179 (3d Cir. 2006).
[W]e hold that the appropriate substantive inquiry for Rule 23(c)(1)(B) is “whether the precise parameters defining the class and a complete list of the claims, issues, or defenses to be treated on a class basis are readily discernible from the text either of the certification order itself or of an incorporated memorandum opinion.” Id. at 185. This means that an order (or incorporated opinion) must include two elements: “(1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class basis.”
The court then held that the district court’s order here satisfied those standards:
The district court's certification order created an Hourly class and an ABM class both of which included employees and former employees “who were subject to defendants' unlawful compensation policies” (emphasis added). Charter One contends that the class certification order creates a conditional class that hinges on whether its overtime policy was unlawful. . . .
Although there is perhaps some minor ambiguity in the certification order, the district court's memo-randum opinion accompanying the order eliminates any potential for confusion. In fact, Judge Lefkow concluded in her Rule 23(b)(3) predominance analysis that an unlawful policy could be inferred based on “the number of people making the same allegations across branches, managers, positions, and time frames.” . . . . For purposes of class certification, Judge Lefkow found that all current and former employees who have worked at an Illinois Charter One location within the last three years were subject to an unlawful overtime policy, and as such, qualify as class members.
Similarly, the court found that “the plaintiffs' claims that will be tried as a class are ‘readily discernible’ from the district court's order and accompanying opinion.”
As to the Rule 23(a)(2) commonality issue, the court distinguished Dukes thus:
Despite Charter One's best efforts to fit the present case into the Dukes mold, there are significant distinctions. Perhaps the most important distinction is the size of the class and the type of proof the Dukes plaintiffs were required to offer. . . . In Dukes, 1.5 million nationwide claimants were required to prove that thousands of store managers had the same discriminatory intent in preferring men over women for promotions and pay raises. Here, there are 1,129 Hourly class members and substantially fewer ABMs, all of whom are based only in Illinois. The plaintiffs' IMWL claim requires no proof of individual discriminatory intent. Instead, the plaintiffs' theory, supported by ninety-six Hourly class declarations and twenty-four ABM class declarations, is that Charter One enforced an unofficial policy in Illinois denying certain employees overtime pay that was lawfully due. All ninety-six Hourly declarations specifically allege that the declarant had been denied lawfully due overtime compensation. Eighty-nine declarations further allege that Charter One had a policy instructing the declarant not to record earned overtime. Meanwhile, the majority of the ABM declarants assert that they primarily performed non-exempt work. Although there might be slight variations in how Charter One enforced its overtime policy, both classes maintain a common claim that Charter One broadly enforced an unlawful policy denying employees earned-overtime compensation. This unofficial policy is the common answer that potentially drives the resolution of this litigation. Dukes, 131 S.Ct. at 2551. . . .
Ultimately, the glue holding together the Hourly and ABM classes is based on the common question of whether an unlawful overtime policy prevented employees from collecting lawfully earned overtime compensation. For that reason, we find that the district court's certification order satisfies the commonality prerequisite and the district court properly granted class certification.
Kevin Clermont (Cornell Law School) has posted Death of a Paradox: Perpetrated By Understanding the Standards of Proof to SSRN.
Modern versions of logic — in particular, fuzzy logic and belief functions — help to explain how the standard of proof actually works in the law world. They suggest that factfinders view evidence of an imprecisely perceived and described reality to form a degree of belief in a fact’s existence, and that they apply the standard of proof by comparing that belief to their belief in its negation.
For understanding the standards of proof, these degrees of fuzzy belief work better than classical probability. They give a superior mental image of the factfinders’ task, conform more closely to what we know of people’s cognition, and capture better what the law says its standards are and how it manipulates them. One virtue of this reconceptualization is that it is not a radically different conception. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof, including the infamous conjunction paradox.
The National Conference of Bar Examiners probably posted the questions from the July 2011 bar exam some time ago. I was only reminded to look when Kevin Clermont let me know that the link I’d posted to the February 2011 question no longer worked. He’s right -- the NCBE has taken down the link to the February exam.
To avoid such vanishing links in the future, I’ve cut and pasted the Federal Civil Procedure question from the July 2011 bar below.
Having only read this quickly, I have to ask: am I missing something? Really, the whole thing leads up to two straightforward appealability issues?
Anyway, here it is:
Federal Civil Procedure Question (from July 2011 MEE)
OfficeEquip is a U.S. distributor of office machines. It is incorporated in State A, where it has its principal place of business. BritCo is a manufacturer of copiers. It is incorporated in Scotland and has its principal place of business in London, England. OfficeEquip sued BritCo, alleging that BritCo had breached a long-term contract to supply copiers to OfficeEquip.
The suit was filed in the United States District Court for State A, and OfficeEquip properly invoked the court’s diversity (alienage) jurisdiction.
BritCo made a timely motion to dismiss the complaint on the ground that it was filed in violation of a forum-selection clause in the supply contract that required all contract disputes to be adjudicated in London. While its motion to dismiss was pending, BritCo filed an answer to the complaint.
In its answer, BritCo denied breaching the supply contract. BritCo also made a counterclaim seeking damages for OfficeEquip’s alleged breach of a contractual covenant not to compete with BritCo.
OfficeEquip filed a motion for judgment on the pleadings on BritCo’s counterclaim, arguing that the covenant not to compete was unenforceable as a matter of law.
After a short period of discovery, the district judge issued the following two orders:
OfficeEquip’s motion for judgment on the pleadings is granted. The contractual covenant not to compete is void as a matter of public policy and is therefore unenforceable. Given that this is strictly a legal issue and entirely severable from OfficeEquip’s breach of contract claim, there is no just reason for delay, and I accordingly direct that judgment should be entered in favor of OfficeEquip on BritCo’s counterclaim.
BritCo’s motion to dismiss is denied. Enforcement of the forum-selection clause would be unreasonable in this case. OfficeEquip has never done business in London, and it would be extremely inconvenient for it to litigate there.
Trial on the breach of contract claim is scheduled in three months.
1. Can BritCo immediately appeal the district court’s order granting OfficeEquip’s motion for judgment on the pleadings with respect to BritCo’s counterclaim? Explain.
2. Can BritCo immediately appeal the district court’s order denying its motion to dismiss? Explain.
Tuesday, January 31, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Jay Tidmarsh (Notre Dame) entitled Access to Courts and the Democratic Order. It reviews a recent article by Prof. Judith Resnik (Yale), Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011), covered earlier here.