March 6, 2013
Grossi on Gunn v. Minton
Professor Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, Federal Question Jurisdiction: The Compass, the Maze and the Trap. Here’s the abstract:
On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.
The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result.
The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.
In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the Court’s most recent decisions. Here I examine the fundamental-principles compass that was developed by the Court in foundational arising-under cases, and synthesized succinctly by Justice Cardozo in Gully v. First Nat. Bank in Meridian. There the Court endorsed a unified jurisdictional theory that focused on the role of the federal issue in the case, asking whether the case was truly about federal law, for if the case was truly about federal law, the exercise of jurisdiction would be inherently consistent with congressional intent to provide a forum for federal question cases.
With this fundamental-principles model as my foundation, I then examine more recent arising-under cases and show that, beginning in the 1980s, the compass got lost and was replaced by a maze of increasingly complex doctrinal tests disconnected from logical and well-established jurisdictional principles. Here the focus shifted from the federal nature of the controversy to a policy-driven model weighted heavily toward case-management concerns.
Gunn offered the Supreme Court an opportunity to recapture the compass or, at the very least, to provide a comprehensible map that would assist lower federal courts in navigating the judicially created maze. The Court, however, missed that opportunity. Instead, the Court continued along a meandering doctrinal path that diverges from the fundamental principles of jurisdiction and often leads to results inconsistent with the congressionally mandated goal of providing a federal forum for the interpretation and application of the principles of federal law.
Civil Procedure Will Be on February 2015 Multistate Bar Examination
Perhaps I should have titled this post "Lifetime Employment for Civil Procedure Professors Announced."
The National Conference of Bar Examiners has announced that Civil Procedure will be included as the seventh topic tested on the Multistate Bar Examination effective with the February 2015 administration.
With the addition of Civil Procedure, the MBE will continue to have 200 questions, 190 of which are scored (10 are unscored pretest items). The difference will be that there will be 28 Contracts items, and 27 items each for the remaining six topics (Civ Pro, Con Law, Crim Law and Pro, Evidence, Real Property, and Torts), for a total of 190 tested questions.
As of July 2013, every state except Louisiana will administer the MBE.
The "test specifications" (I assume this means the subjects possibly tested by) MBE Civil Procedure items will be announced no later than June 30, 2013.
March 5, 2013
Marcus on the History of the Class Action
David Marcus (University of Arizona) has posted The History of the Modern Class Action, Part I: Sturm und Drang, 1953-1980 on SSRN.
The U.S. Supreme Court’s recent and intensive engagement with class action doctrine has changed the device for claim aggregation significantly. The first era in the history of the modern class action, which began with the revision of Rule 23 in the 1950s and 1960s, may be ending. If so, the class action’s remarkable story deserves telling. This Article provides the first chapter, explaining how class action doctrine coalesced just moments before the great social and political strife of the 1960s, provoked a heated political war within a couple of years of its emergence, and finally stabilized by the end of the 1970s.
After telling the story of the revised Rule 23’s origins, I describe the emergence of the fiery class action politics of the late 1960s and early 1970s. Combatants clashed over two competing conceptions of the new device. Advocates for plaintiffs’ interests championed a “regulatory conception” of Rule 23: Courts and lawmakers, they insisted, should treat the class action as a mechanism designed to boost the regulatory force of the substantive law. Decision-makers should apply Rule 23 flexibly, to recognize that the class action played a key role in new regulatory strategies pursued in the 1970s. Corporate interests and their allies countered with an “adjectival conception” of the class action, or an understanding of the device that conceived of it as a joinder rule like any other. They argued that courts should limit the class action strictly, lest a mere procedural rule significantly distort the role that civil litigation properly played in American government.
The clash between these conceptions of Rule 23 offers a way to understand doctrinal evolution during the first chapter of the device’s modern history. Congress and federal rulemakers were unable to resolve the conflict between the regulatory and adjectival conceptions. The federal courts, however, did so successfully. Using a pragmatic balancing strategy in each substantive area affected by class actions, the federal courts preserved Rule 23’s regulatory force while insisting that class litigation not deviate too far from more traditional models of civil adjudication. This strategy stabilized class action doctrine by the end of the 1970s, laying a foundation for far more adventurous uses of the device in the 1980s and 1990s.
March 4, 2013
SCOTUS Cert Grant on Personal Jurisdiction & Venue: Walden v. Fiore
1. Whether due process permits a court to exercise personal jurisdiction over a defendant whose sole “contact” with the forum State is his knowledge that the plaintiff has connections to that State.
2. Whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue under 28 U.S.C. § 1391(b)(2) even if the defendant’s alleged acts and omissions all occurred in another district.
You can find a link to the 9th Circuit’s opinion below and other information about the case at SCOTUSblog’s casefile.
Here’s a story on the case from the AP.
More Coverage of Clapper v. Amnesty Int'l
Here are links to some recent coverage of last week’s Supreme Court decision in Clapper v. Amnesty International, which rejected a challenge to federal wiretapping procedures for lack of Article III standing: