Friday, February 1, 2013

Borgmann on Appellate Review of Social Facts

Professor Caitlin Borgmann (City University of New York) has posted on SSRN a draft of her article, Appellate Review of Social Facts in Constitutional Rights Cases, which will appear in the California Law Review. Here’s the abstract:

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.


February 1, 2013 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 30, 2013

Class Action Conference at GW

All Civil Procedure teachers are invited to attend a Symposium on Class Actions to be held at the George Washington University Law School on March 7 and 8.  Many of the leading academics and class action practitioners in the nation will be participating on the five panels discussing the many controversial issues attending modern class action litigation.  The Symposium is jointly sponsored by the James F. Humphreys Complex Litigation Center at GW and by Public Justice.  Papers prepared for the Symposium by panelists will later be published in the GW Law Review.


There is no registration fee, but if you plan to attend please notify Frances Arias [] at GW of your intentions so that the GW Law School can plan for your visit.  If you have questions about the event, please feel free to contact Professor Roger Trangsrud at GW [ and 202-994-6182].


A summary of the program is set out below.



                Schedule for Class Action Conference at GW on March 7-8




2:00 p.m. - Introductory Remarks [Burns Moot Court Room at GW Law]


2:15 - 3:45 p.m. - Panel One  


                The Proper Process to Follow before a Certification Decision is Made


                What evidentiary showing must the plaintiffs make before the trial court may certify a class action?  To what extent should the court assess the merits of the plaintiff’s case in making the certification decision?  Is this consistent with the Seventh Amendment?  To what extent should the trial court  evaluate the expert witness testimony of the parties before making the certification decision?  Does Daubertg apply and, if so, should Daubert hearings be held at this point?  Should pre-certification discovery be regulated or not?


                Moderator: Rick Marcus [Hastings]


                Panelists: Geoff Hazard [Hastings], Linda Mullenix [Texas], George Gordon [Dechert], Tom Sobol [Hagens Berman], Gerson Smoger [Smoger & Asso.]


4:00 - 5:30 p.m. - Panel Two


                Common Questions:  The Proper Relationship of 23(a)(2), 23(b)(3), and 23(c)(4) 


                Did the Supreme Court in Dukes properly interpret the 23(a)(2) common question requirement?  What must plaintiffs prove to show that common questions predominate over noncommon questions?  If class counsel has not asserted all claims available to class members, does that justify denying certification?  Should class actions be certified which will resolve some common issues, but which will later require individual adjudication of the remaining noncommon issues?  For common issues to predominate, must plaintiffs show that some proportion of the class suffered the relevant form of the injury?


                Moderator: Alan Morrison [GW]


                Panelists: Bob Bone [Texas], Josh Davis [San Francisco], Eric Cramer [Berger & Montague], Ted Boutros [Gibson Dunn]





9:00 - 10:30 a.m. - Panel Three


                Class Actions and Remedies


                To what extent, if at all, can plaintiffs seek monetary remedies in b(1) or b(2) class actions?  Should class actions be certified if it is likely impracticable to distribute some or all of any resulting monetary settlement or judgment to the class?  Can the amount of the class recovery be determined by statistical sampling or other approximating methods or is individual proof of each class member’s loss necessary?  Should cy pres and fluid damage remedies by allowed in class actions and, if so, when and subject to what rules?


                Moderator: Bill Rubenstein [Harvard]


                Panelists: Ed Sherman [Tulane], Bob Klonoff [Lewis & Clark], Jay Tidmarsh [Notre Dame], Arthur Bryant [Public Justice]



10:45 a.m. - 12:15 p.m. - Panel Four


                Settlement Class Actions and Settlement Approval  


                Should the standard for class certification be different for purposes of settlement than for purposes of litigation?  If so, how?  Should the rules for approving class action settlements be altered?  If so, how?  Need every member of a settlement class have a viable claim?  How can the system ensure fairness, adequacy, and reasonableness of class action settlements without leaving legitimate settlements vulnerable to unjustified objections?


                Moderator: Sam Issacharoff [NYU]


                Panelists: Howard Erichson [Fordham], Roger Trangsrud [GW], Brian Fitzpatrick [Vanderbilt],  Elizabeth Cabraser [Lieff, Cabraser], David Sorensen [Berger & Montague]



2:00 - 3:30 p.m. - Panel Five


                Arbitration and Class Actions


                Should any form of class action be allowed in arbitration proceedings?  Are there any limits on the ability of employers or merchants to restrict the ability of employees or consumers to pursue class action litigation?  Should arbitration clauses be enforced even where doing so would prevent the effective vindication of substantive rights?  Does it matter that such substantive rights arise out of state or federal law?  Should legislation be passed or Rule 23 amended to define when negative value claims can be pursued within or without the arbitration process?


                Moderator: Rich Freer [Emory]


                Panelists: Myriam Gilles [Cardozo], Deborah Hensler [Stanford], Paul Bland [Public Justice], Jon Jacobson [Wilson, Sonsini], Jon Cuneo [Cuneo Gilbert]


January 30, 2013 in Class Actions, Conferences/Symposia | Permalink | Comments (0)