Thursday, February 16, 2012
Just published in the Journal of Empirical Legal Studies: two articles relating to Civil Procedure or Federal Courts:
(1) “Selected to Serve: An Analysis of Lifetime Jury Participation,” by Mary R. Rose, Shari Seidman Diamond, and Marc A. Musick. (available here)
Using a survey of a random sample of 1,380 Texas adults, we consider what factors distinguish those who have ever had an opportunity to serve on a jury from those who have not (“lifetime participation”). Residential stability and willingness to serve distinguished former jurors from those who had never been summoned or had never been questioned for a case. After controlling for age, neither race nor ethnicity accounted for participation, a finding replicated in data from another state. No factors differentiated former jurors from people who have been questioned but never selected. Our results strongly indicate that improvements to participation should focus on attrition that occurs before potential jurors reach the courtroom.
(2) “Consensus, Disorder, and Ideology on the Supreme Court,” by Paul H. Edelman, David E. Klein, and Stefanie A. Lindquist. (available here)
Ideological models are widely accepted as the basis for many academic studies of the Supreme Court because of their power in predicting the justices' decision-making behavior. Not all votes are easily explained or well predicted by attitudes, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to ideological accounts of judicial decision making. Are consensus and (ultimately) unanimity driven by extreme factual scenarios or extreme lower court rulings such that even the most liberal and most conservative justice can agree on the case disposition? Or are they driven by other, nonattitudinal influences on judicial decisions? In this article, we rely on a measure of deviations from expected ideological patterns in the justices' voting to assess whether ideological models provide an adequate explanation of consensus on the Court. We find that case factors that predict voting disorder also predict consensus. Based on that finding, we conclude that consensus on the Court cannot be explained by ideology alone; rather, it often results from ideology being outweighed by other influences on justices' decisions.
U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.
The panels look great:
9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far
- Michael Goldhaber
- Paul Hoffman
- Austen Parrish
- Moderator: Michael Robinson-Dorn
10:30 a.m.-10:45 a.m. Break
10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law
- David Kaye
- Chimène Keitner
- Julian Ku
- Ed Swaine
- Moderator: Michael Ramsey
12:15 p.m.-1:30 p.m. Lunch
1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law
- Patrick Borchers
- Anthony Colangelo
- Symeon Symeonides
- Moderator: Trey Childress
3:00 p.m.-3:15 p.m. Break
3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law
- Roger Alford
- Lee Crawford-Boyd
- Kristin Myles
- Beth Stephens
- Moderator: Chris Whytock
Monday, February 13, 2012
Thank you, Governor Mark Dayton, for the common sense approach shown in your veto messages for four “tort reform” bills. The full letters are available on the governor’s web site here.
“I am vetoing and returning Chapter 118, SF 149, which addresses the unrelated topics of conciliation court claim limits and class actions appeals. These provisions are not consistent with the court’s recommendations for effectively addressing small claims, represent legislative meddling with court procedures best handled by the judiciary, and do not address legitimate problems in Minnesota. A recent study by the National Center for State Courts revealed that 72% of the civil case load in Minnesota is consumed by small claims and contract matters, while civil tort claims represent less than 3% of the cases. The Legislature should be addressing the areas of the court that consume the bulk of its workload.”
“I have vetoed and am returning Chapter 119, SF 373, which drastically lowers the statute of limitations for many important civil claims. . . . I am perplexed by the charge that Minnesota is an excessively litigious state or has a negative civil justice system for business. According to the Minnesota Supreme Court, civil case filings for injury claims are down over 40% since 1997, despite our expanding population. . . .”
“I am vetoing and returning Chapter 120, SF 429, a measure that has been rejected several times by the legislature and the courts. . . . This legislation would require that attorneys' fee awards must be in proportion to the damages awarded in a civil case. This requirement would seriously undermine the legislative purpose for enacting statutes that allow Minnesota businesses, consumers, and employees to collect their damages - plus reasonable attorney fees - for certain wrongful conduct. A rule of proportionality would make it difficult, if not impossible, for individuals to bring important and meritorious claims of relatively small value. To ensure that those claims are brought forward, the legislature has shifted the costs of bringing the claim to the negligent party, and rightly so. This legislation removes that protection. Further, the courts already review fee awards to ascertain that they are in relation to the recovery. However, the court will also consider other relevant factors like the time involved in the case and the nature of the controversy. No evidence has been presented that the current system is unfair to those found in violation of Minnesota laws.”
“I am vetoing and returning Chapter 121, SF 530, which would lower the interest rate on judgments for negligent parties and their insurance companies. This bill is a step backwards for justice.”
Professor Lonny Hoffman's article, "Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss" has just been published at 6 Fed. Cts. L. Rev. 1 (2012), available here.
The abstract reads:
This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after the U.S. Supreme Court’s decision in Ashcroft v. Iqbal. Three primary assessments are made of the FJC’s study. First, the FJC’s findings do not indicate that the Court’s decisions have had no effect on dismissal practice. To the contrary, the FJC found that after Iqbal, a plaintiff was twice as likely to face a motion to dismiss. This sizeable increase in the rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs. Similarly, the data regarding orders resolving dismissal motions demonstrates the consequential impacts of the Court’s cases, as in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Second, due to the inherent limitations of doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted before Twombly with after Iqbal does not indicate whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Finally, the data the FJC researchers gathered may be incomplete, particularly as to the filing rate. As a result, the study may be providing an incomplete picture of actual Rule 12(b)(6) activity.
Steve McConnell at Drug and Device Law Blog has a nice post about a recent Mass Torts Forum/Roundtable for lawyers and judges that he attended last week in Philadelphia. Among the observations that some of the judges made:
Addressing case management issues early is in everybody’s interest. Coordination, including between federal and state courts, can aid efficiency and reduce costs. It can also make it harder for parties to play jurisdictions against each other. An MDL can be a “life-changing” experience for a court. It starts to feel like a huge construction project, where landmarks along the way signal progress. Judges also look for “economies of scale.”
Judges are all over the map on how to select bellwether trials. There is still some support for letting each side pick their favorite cases, but it is possible that the best cases are not representative enough to mark out settlement values. Plus, plaintiffs can subvert the system by dismissing the defense picks at the last minute. Judges don’t like that. And here’s a piece of good news: most judges think it makes no sense to create a bellwether trial with multiple plaintiffs.
The whole post is worth reading and thinking about how plaintiffs' lawyers, defense counsel, and judges can all work together to improve complex litigation procedure and practice.