Monday, August 22, 2016

Federal Court Dismisses Alien Tort Statute Claim Against U.S.-Based Turkish Cleric

Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)

Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.

Download Ates v Gulen (MD Pa)




August 22, 2016 in Current Affairs, Federal Courts, In the News, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Gelbach & Marcus on Federal Court Social Security Disability Litigation

Jonah Gelbach & Dave Marcus have posted on SSRN A Study of Social Security Disability Litigation in the Federal Courts, Final Report to the Administrative Conference of the United States. Here’s the abstract:

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent. 

The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation. 

Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly. 

Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.





August 22, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, August 15, 2016

Ninth Annual Junior Faculty Federal Courts Workshop

Howard Wasserman has posted the details for the Ninth Annual Junior Faculty Federal Courts Workshop, which will take place at Emory on March 31 - April 1, 2017. If you’d like to present, submit an abstract to by November 1, 2016.





August 15, 2016 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Thursday, August 4, 2016

Federal Court Dismisses Roy Moore’s Lawsuit Based on Younger Abstention

Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:

Download Moore v JIC

Coverage here and here.




August 4, 2016 in Current Affairs, Federal Courts, Recent Decisions | Permalink | Comments (0)

Wednesday, July 13, 2016

Smith on Prudential Limits on Federal Judicial Power

Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.




July 13, 2016 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, June 22, 2016

Judge Pro on Federal Magistrate Judges

Judge Philip M. Pro (United States District Court for the District of Nevada) has posted on SSRN his article United States Magistrate Judges: Present but Unaccounted For, forthcoming in the Nevada Law Journal.


The relationship between United States district judges and United States magistrate judges is unique within the American judiciary. United States magistrate judges are the first judges encountered in most federal civil or criminal cases and play an increasingly important role in the adjudication of virtually every case in United States district court. Yet, while the behavior of Article III judges has been the subject of active academic scrutiny, the behavior of magistrate judges, who are appointed to renewable eight-year terms by their Article III district judge colleagues, has largely been ignored. This paper reports the results of interviews of thirty-four magistrate judges and district judges, and through their experiences, explores whether their judicial decision-making relationship, a motivation for re-appointment, or elevation to Article III status influences their judicial behavior and that of their district judge colleagues. The answers to these questions are nuanced and dependent on variables not previously considered, and are best understood in the context of the remarkable evolution of the Magistrate Judges System, which has existed for less than fifty years.

June 22, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, June 20, 2016

Coleman on One Percent Procedure

Brooke Coleman has posted on SSRN a draft of her article One Percent Procedure, which is forthcoming in the Washington Law Review. Here’s the abstract:

In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure. 

This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.

As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.



June 20, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Wednesday, May 25, 2016

Goings-On in the Committee that Never Sleeps (a/k/a the Civil Rules Advisory Committee)

            The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016.  The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.

            The report has three parts.  First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer. 

            Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference.  The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1).  The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”

            Third, the Advisory Committee:

 (a) “describes proposals under active consideration for eventual publication and adoption,” including:

  • a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
  • studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
  • “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and

(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:

  • the “separate document” requirement of Rule 58;
  • suggestions to assist pro se litigants;
  • amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
  • mandatory disclosure of third-party financing arrangements.

        In future posts, I will discuss some of these developments in more detail.

May 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, May 16, 2016

Senate Judiciary Committee to Consider Nominations of Ten Federal Judges This Week

The Senate Judiciary Committee will hold hearings on Wednesday, May 18,  2016, at 10:00 a.m., on the nominations of:

Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit

Paul Lewis Abrams, to be United States District Judge for the Central District of California

Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana

Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana

Winfield D. Ong, to be United States District Judge for the Southern District of Indiana


On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:

Ronald G. Russell, to be United States District Judge for the District of Utah

Inga S. Bernstein, to be United States District Judge for the District of Massachusetts

Stephanie A. Gallagher, to be United States District Judge for the District of Maryland

Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma

Scott L. Palk, to be United States District Judge for the Western District of Oklahoma

May 16, 2016 in Current Affairs, Federal Courts | Permalink | Comments (0)

Tuesday, March 29, 2016

The Rise and Fall of Plausibility Pleading?

My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.

Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.



March 29, 2016 in Adam Steinman, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Friday, March 25, 2016

SCOTUS Decision in Tyson Foods v. Bouaphakeo: Another Important Case on Class Actions

This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).

Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.

First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).

Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:

In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).

The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.

For additional coverage, check out:


March 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 17, 2016

SCOTUS Decision on Diversity Jurisdiction: Americold Realty Trust v. ConAgra Foods

There’s a lot of attention right now on President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. But I wanted to quickly flag last week’s unanimous decision on diversity jurisdiction. Justice Sotomayor’s opinion in Americold Realty Trust v. ConAgra Foods, Inc. begins:

This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.

The Court reaffirmed the “oft-repeated rule” that unincorporated entities take on the citizenship of all of their members (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990)), and held that the “members” of this sort of Maryland-law entity included all of its shareholders:

In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which property is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders.

Justice Sotomayor concluded by recognizing—but rejecting—the argument that the citizenship of an unincorporated entity should be determined the same way as a corporation:

We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule.


March 17, 2016 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, February 22, 2016

House to Consider "Fraudulent Joinder Prevention Act" This Week

The House of Representatives is to consider the so-called Fraudulent Joinder Prevention Act of 2016, H.R. 3624. this week.  The bill provides:

Section 1447 of title 28, United States Code, is amended by adding at the end the following:

(f) Fraudulent joinder
(1) This subsection shall apply to any case in which—
(A) a civil action is removed solely on the basis of the jurisdiction conferred by section 1332(a);
(B) a motion to remand is made on the ground that—
(i) one or more defendants are citizens of the same State as one or more plaintiffs; or
(ii) one or more defendants properly joined and served are citizens of the State in which the action was brought; and
(C) the motion is opposed on the ground that the joinder of the defendant or defendants described in subparagraph (B) is fraudulent.
(2) The joinder of the defendant or defendants described in paragraph (1) (B) is fraudulent if the court finds that—
(A) there is actual fraud in the pleading of jurisdictional facts;
(B) based on the complaint and the materials submitted under paragraph (3), it is not plausible to conclude that applicable State law would impose liability on each defendant described in paragraph (1)(B);
(C) State or Federal law clearly bars all claims in the complaint against all defendants described in paragraph (1)(B); or
(D) objective evidence clearly demonstrates that there is no good faith intention to prosecute the action against all defendants described in paragraph (1)(B) or to seek a joint judgment.
(3) In determining whether to grant or deny a motion under paragraph (1)(B), the court may permit the pleadings to be amended, and shall consider the pleadings, affidavits, and other evidence submitted by the parties.
(4) If the court finds fraudulent joinder under paragraph (2), it shall dismiss without prejudice the claims against the defendant or defendants found to have been fraudulently joined and shall deny the motion described in paragraph (1)(B).



February 22, 2016 in Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, February 15, 2016

Macfarlane on Staff Attorney Adjudication of Prisoner Claims

Katherine Macfarlane (University of Idaho College of Law) has posted on SSRN a draft of her article "Shadow Judges: Staff Attorney Adjudication of Prisoner Claims."


Prisoners bring over twenty percent of the civil cases filed in federal district courts, predominantly seeking redress for violations of their civil rights, or release from prison under habeas corpus. Because most prisoners (around 93%) proceed pro se in their federal civil litigation, they are already at a disadvantage. The deck is stacked against prisoner plaintiffs in other systemic ways. Local rules, general orders, and even district courts’ job postings suggest that when a plaintiff is a pro se prisoner, the plaintiff is denied an Article III judge. Judicial tasks that must be performed in prisoners’ cases, from administration to adjudication, are delegated to non-judicial staff. As a result, in the very same court, prisoners’ cases are decided by a court employee who works as part of the court’s “pro se staff,” while all other plaintiffs get an Article III judge (or at least a magistrate judge, if they consent). The Supreme Court’s 2015 Wellness International Network v. Sharif decision drew attention to delegation of Article III claims to non-Article III judges in the bankruptcy realm. There, the Court rigorously considered the impact of the structural error caused by delegation to judges who do not enjoy fixed salaries or life tenure. But delegation of the judicial power in the prisoner litigation context is still hiding in plain sight.

This article is the first to investigate the scope of the delegation to pro se staff and to consider the separation of powers concerns caused by delegation of the judicial power to pro se staff. It argues that local procedure has enabled the delegation, and that it has gone too far. Local procedure crafts rules for prisoner litigation that conflict with federal law, effectively denying access to an Article III judge. When federal courts overreach in this manner, their rulemaking exceeds the limited rulemaking authority Congress has delegated to the judiciary. This local procedure also violates federal policy, which generally disfavors allowing non-judicial actors to perform judicial tasks.

This article concludes with recommendations about how to solve the delegation problem. The strongest solution would be to eliminate the local procedure in question, and the pro se staff it creates. Congress would be required to address the issue directly and nationwide by creating, or not, additional procedure for prisoner litigation. A more moderate approach would publicize the identity of pro se staff as well as the nature of the work the staff undertakes. Pro se staff would come out of the shadows and into public view.

February 15, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, February 9, 2016

Palmer on Partisan Appointments to Special Courts and Panels

A new article, Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?, by political science professor Maxwell Palmer (Boston University), has been published in the Journal of Empirical Legal Studies.


The Chief Justice of the Supreme Court has the exclusive and independent power to appoint federal judges to various special courts and panels, including the Foreign Intelligence Surveillance Court (FISC), the court that oversees all domestic surveillance for national security, including domestic data collection by the National Security Agency (NSA). This article examines the propensity of Chief Justices to appoint co-partisan judges to these panels. Such appointments may serve to produce decisions and policies that align with the Chief Justice's preferences. I use computational simulations to model the appointment decisions made by Chief Justices. I find that there is less than a 1 percent chance that a neutral Chief Justice would appoint as many Republicans to the FISC as have been appointed in the last 36 years. I further show that the Chief Justice is not selecting appointees on other observable judicial characteristics, such as age, experience, gender, senior status, or caseload. These results have important implications for the creation of judicial institutions, the internal politics of the judiciary, legislative delegation, and the powers and oversight of the national security state.

February 9, 2016 in Class Actions, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, February 8, 2016

Discovery Protocol Results in More Settlements, Fewer Motions to Compel

I don’t know how I missed this when it came out, but better late than never.  The Federal Judicial Center has published a brief empirical study of the pilot project on initial discovery protocols in employment cases.  Emery G. Lee & Jason A. Cantone, Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Oct. 2015).

One of the ideas floated at the 2010 conference on civil litigation held at Duke Law School was that pattern discovery (set forms) in particular case types might reduce discovery battles (and hence, “cost and delay”).  Another, related idea expressed at the conference was that initial required disclosures under FRCP 26(a) were generally not helpful.  The Advisory Committee did not officially pursue these ideas (in fact, it abolished all the forms following the FRCP).  However, a group of plaintiffs’ and defendants’ attorneys experienced in employment cases negotiated and finalized discovery protocols for those cases that replace the standard initial disclosures.  Judge John G. Koeltl and the Institute for the Advancement of the American Legal System (IAALS) facilitated the project.   

The protocols cover only cases alleging adverse employment action.  Certain cases are exempt from the protocols: class actions, and cases alleging only discrimination in hiring, harassment, or violations of FLSA, ADA, FMLA, or ERISA.

The protocols are posted on the FJC's website.  About 75 federal district court judges have adopted the protocols, and the FJC has now studied their effect.

As described by the FJC:

The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use [as] a basis for discussion.

For example, among the many items the plaintiff is required to produce to the defendant are “diary, journal, and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in this lawsuit,” and “the plaintiff’s current resume(s).”  Among the many items the defendant is required to produce to the plaintiff are “the plaintiff’s personnel file, in any form, maintained by the defendant, including files concerning the plaintiff maintained by the plaintiff’s supervisor(s), manager(s), or the defendant’s human resources representative(s), irrespective of the relevant time period” and “the plaintiff’s performance evaluations and formal discipline.”  

So now to the FJC’s study of the effect of the pilot project.  The FJC constructed a sample of 477 cases in the pilot program and a comparison sample (random and nationwide) of 672 recently-terminated cases alleging employment discrimination not in the pilot program.  Here are some of the results.  Please note that I constructed the table below based on the text in the FJC’s report:


Pilot cases



p value

(if given)

Number of cases




Mean disposition time in days




Median disposition time in days




Case outcomes:


o   Settlement




o   Voluntary dismissal (which could include

settlement, but not clear from docket)




o   Dismissed on Rule 12 motion




o   Resolved by summary judgment




o   Trial




o   Other (DWP, failure to exhaust)




Motions to dismiss filed




Motions for summary judgment filed




One or more discovery motions filed*




*Includes motions to compel and motions for protective order (apparently includes only contested, not stipulated, motions for protective order).

**Statistically significant.

Some of these findings are cause for celebration.  There were significantly fewer discovery motions filed in the pilot cases.  The pilot cases were more likely to result in settlement.  The pilot cases were less frequently dismissed on motion or resolved by summary judgment.  Fewer such motions were even filed in the pilot cases.   

As for case disposition time, the FJC seems almost apologetic that pilot cases were resolved faster than, but not statistically significantly faster than, non-pilot cases, stating, “The pilot does not, in short, appear to have an appreciable effect on reducing delay.”  But whether pilot or non-pilot, these cases last about nine or ten months from filing to disposition.  How much faster does anyone want?  Having practiced law in the 1980s and 1990s (including in Illinois state courts), I’d like to suggest that this is a rocket docket.  Once we account for the preliminary time periods allowed by the FRCP (up to 90 days to serve the complaint after filing and then up to 90 days to issue the scheduling order), and add a standard six months to complete discovery, that’s what we get – nine or ten months.  Where’s the “delay”?  (Not blaming the FJC for using this term: it’s the mantra used by discovery “reformers.”)

The FJC is, as always, careful to note the limitations of its study.  First, judges are free to adopt or not adopt the protocols, so the pilot cases came from only ten districts, and 75% of the pilot cases were in Connecticut or the Southern District of New York.  Second, because the initial disclosures were not usually docketed (and under FRCP 5, they would not be required to be), the FJC could not determine whether the parties “actually complied with the discovery protocols and exchanged the required initial disclosures.”  Finally, “this report makes no claim that the only factor differing between the pilot and comparison cases was the pattern discovery in the former,” and “caution is warranted before concluding that the pilot program caused the above described differences between the pilot and comparison cases.”

In my opinion, the pattern discovery approach should be pursued in more types of cases.  Having experienced attorneys on both sides negotiate protocols to produce the types of documents and information repeatedly sought in discovery in a particular kind of case represents a far more sensible, concrete, and helpful approach to improving discovery than the adoption of a vague “proportionality” standard. 

February 8, 2016 in Discovery, Federal Courts | Permalink | Comments (1)

Friday, February 5, 2016

Bills to Curb Forced Arbitration, Split Ninth Circuit Introduced

A bill to prohibit corporations from forcing arbitration of certain disputes, Restoring Statutory Rights Act, S.2506, was introduced on February 4 by Senator Patrick Leahy (D-VT).

Separately, bills were introduced in both the House, H.R. 4457, and the Senate, S.2490, to divide the Ninth Judicial Circuit into two circuits.  The bills are sponsored by Republicans from Arizona.   

February 5, 2016 in Current Affairs, Federal Courts | Permalink | Comments (0)

Tuesday, February 2, 2016

New Study Finds "Stunning and Unacceptable Level of Randomly Distributed Justice"

Professor Gary Neustadter of Santa Clara University School of Law has posted on SSRN his article, Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World.


Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage’s acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or improvement of California residential real property. When issued, the notes were secured by junior consensual liens on the real property, but subsequent foreclosure of senior consensual liens, precipitated by the mid-decade burst of the housing bubble, left the notes unsecured.

This article reports an empirical study of these bankruptcy adversary proceedings. Because the proceedings were essentially identical, they offer a rare laboratory for testing the extent to which our entry-level justice system measures up to our aspirations for “Equal Justice Under Law.” We are unlikely to find many conditions better suited to empirical exploration of that question: (1) civil litigation filed during a relatively brief time span by one plaintiff against 266 defendants (including co-defendant spouses); (2) some defendants defaulting, some defendants appearing pro se, and some represented by an attorney; (3) dispersal of the litigation among forty-seven different bankruptcy court judges, all sitting in one state (and thus, where applicable, required to apply the relevant substantive law of a single state); and (4) legal claims and factual allegations by the plaintiff so nearly identical that each dispute is resolvable on the basis of one obvious and straightforward factual question (reliance by an originating lender on a borrower’s misrepresentations) or on the basis of three less obvious and more complex legal rules (a California statutory limitation on fraud claims and two alternative varieties of a standing defense).

The results in the Heritage adversary proceedings evidence a stunning and unacceptable level of randomly distributed justice at the trial court level, generated as much by the idiosyncratic behaviors of judges, lawyers, and parties as by even handed application of law. We anticipate some randomly distributed justice as the inevitable byproduct of disparities in economic and other resources of the parties and disparities in the knowledge, capabilities, and attitudes of even well-meaning attorneys and judges acting reasonably in an imperfect system. We aspire, nonetheless, to equal justice under law. The findings of this study reflect a departure from that ideal on a scale both larger than we may have expected and larger than we should tolerate.

Hat tip: Jason Kilborn, who had high praise for this article: “The paths and outcomes of these materially identical cases are so different in so many surprising (and often disturbing) ways, the paper offers a really stunning look behind the curtain of our often arbitrary trial-level justice system. . . . The revelations in this paper are a gold mine for civil proceduralists, and it offers a cautionary tale and useful playbook for lawyers (and perhaps judges) in how to make many aspects of our system more effective.”

February 2, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (1)

Monday, January 25, 2016

SCOTUS Decision in Montgomery v. Louisiana: Supreme Court Jurisdiction, State Courts, and Retroactivity

Today the Supreme Court issued a 6-3 decision in Montgomery v. Louisiana, which involves the retroactive effect of the Supreme Court’s 2012 decision in Miller v. Alabama (where the Court prohibited mandatory sentences of life without the possibility of parole for juveniles).

The case presented both an interesting question of Supreme Court jurisdiction in the context of state collateral review proceedings, and the perennial federal courts challenge of when a new constitutional right applies retroactively. The majority opinion authored by Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan & Sotomayor) concluded:

(1) The Supreme Court had jurisdiction to review a state court’s failure to recognize, in the context of state collateral review, a federal constitutional right that applies retroactively;

(2) Miller did announce “a substantive rule of constitutional law” that applies retroactively; and

(3) A state may remedy a Miller violation by extending parole eligibility to juvenile offenders.

The three dissenters were Justices Scalia, Thomas, and Alito, who disagreed both on jurisdiction and on the merits. Justice Scalia wrote a dissenting opinion that was joined by both Thomas and Alito, and Justice Thomas wrote a separate dissent as well.

Check out Lyle Denniston’s analysis on SCOTUSblog.





January 25, 2016 in Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.




January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)