Friday, January 31, 2014
Andrew Hull, law clerk to the Chief Administrative Law Judge of the Drug Enforcement Administration, has posted on SSRN his article, Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition.
Despite blatant jury misconduct that can result in an improper guilty-verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place. Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.
Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury. Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition. As will be discussed further, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the jury’s subjective deliberative process of reaching a verdict.
Part I of this paper describes the history of Rule 606(b) and its underlying policies. Part II discusses the origin of this rule — a case decided by the renowned Lord Mansfield — and questions its legitimacy as a bedrock principle in the common law tradition. Part III analyzes the policy of finality at the expense of overlooking certain juror misconduct in light of historical writings surrounding trial by jury. Finally, Part IV provides a suitable amendment to Rule 606(b) that embraces both a holistic understanding of a just trial by jury while also respecting the inviolate nature of the process of jury deliberation.
Friday, January 24, 2014
The different ways federal district courts provide settlement assistance to parties is the focus of a new study by the Federal Judicial Center (FJC). Eight district courts are participating in the study to be completed by late 2014. Read more . . .
Wednesday, January 22, 2014
In Medtronic, Inc. v. Mirowski Family Ventures, LLC, Mirowski licensed its patents relating to implantable heart stimulators to Medtronic, which makes medical devices. Later, Mirowski notified Medtronic that it believed some of Medtronic's new products infringed Mirowski's patents.
Medtronic brought a declaratory judgment action in federal court in Delaware, claiming that its products did not infringe Mirowski's patents and that the patents were invalid. The district court held that Mirowski, as patentee, bore the burden of proving infringement, even though it was the defendant, and Mirowski lost after a bench trial.
The Federal Circuit reversed, holding that Medtronic, the declaratory judgment plaintiff, bore the burden of proving infringement.
The Supreme Court, in a unanimous opinion by Justice Breyer, reversed. First the Court addressed federal jurisdiction. An amicus argued that in a DJA, in order to determine whether the action arose under patent law under Section 1338(a), the court must look to the action that the DJ defendant (the patentee, Mirowski) could have brought in the absence of a DJA. That action, argued the amicus, would be a state-law claim for breach of the license agreement.
The Court agreed that when determining declaratory judgment jurisdiction, courts look to the "character of the threatened action" to see whether it would necessarily present a federal question. However, the Court held that the threatened action would arise under federal patent law, because if Medtronic stopped paying royalties, Mirowski could terminate the license agreement and sue for patent infringement.
Turning to the burden of proof issue, the Court reversed the Federal Circuit:
It is well established that the burden of proving infringement generally rests upon the patentee. . . . We have long considered "the operation of the Declaratory Judgment Act" to be only "procedural." . . . And we have held that "the burden of proof" is a "'substantive' aspect of a claim." . . .
Taken together these three legal propositions indicate that, in a licensee's declaratory judgment action, the burden of proving infringement should remain with the patentee.
Thanks to Professor Ira Nathenson for bringing this case (which perhaps only a Civil Procedure professor could love) to my attention.
Saturday, January 4, 2014
This morning I attended the Civil Procedure Section program, "Innovations in the District Courts: How Judges and Districts Can Address Cost, Delay and Access to Justice." Moderated by Dean Matthew Diller, it was a lively panel of four federal judges:
Judge Julie Robinson, D. Kan.
Judge Shira Scheindlin, S.D.N.Y.
Judge Lois Bloom, Magistrate Judge, E.D.N.Y.
Judge William Young, D. Mass.
Judge Robinson is Chair of the National Committee of the Judicial Conference of the United States and chaired the Court Administration and Case Management Committee. "My committee, as opposed to the Rules Committee, works very quickly," she said.
This committee publishes and maintains the Civil Litigation Management Manual (not the Complex Litigation Manual) and collects best practices at the district court level, focusing on what she called "non-complex litigation." For example, Judge Robinson cited Judge Koetl's pilot project focusing on the case management of employment cases. She characterized employment cases as "non-complex," but stated that they cause "operational pain." Among other items, the pilot calls for reciprocal exchange of information ("the universe") at the beginning of a case. Judge Robinson's committee also oversees the pilot program for patent cases.
Her committee is also improving the functionality of the CM/ECF system to manage caseloads, not just cases. She referred to a "three-year benchmark" for terminating civil cases, and stated that judges have a responsibility to the federal system to move cases. Her committee focuses on the most congested courts in the system on the civil side of the docket. The committee studies why these courts are congested and what kinds of resources can be deployed to help.
Judge Scheindlin described the ongoing pilot project in the Southern District of New York for complex cases. She believes that many of the innovations are not necessary for the run-of-the-mill, non-complex cases. The subject areas for this pilot project are stockholders' suits, products liability, antitrust, trademark, patent, securities, all class actions, and multidistrict litigation. She said that FLSA cases are now about 10% of the project.
To inform the pilot project, the FJC conducted a survey of attorneys about case management. I believe the results of this survey are published, and Judge Scheindlin spoke very quickly about a number of the survey findings. Just a few items that I managed to get down were that 60% of attorneys said they had a 26(f) conference, and said that the 26(f) conference had little effect on cost or fairness (or actually increased cost). Attorneys reported that discovery was stayed in about 30% of cases pending a motion to dismiss. Also, attorney reported that there was no ESI involved in about 40% of cases, a result Judge Scheindlin found surprising.
Judge Scheindlin described the components of the pilot project in some detail, which I will only highlight here. Expensive and voluminous privilege logs are downplayed because they are now "unnecessary" with Rule 502 of the Federal Rules of Evidence.
Document discovery, but not depositions, should presumptively proceed while a motion to dismiss is pending. A sample of documents should be provided to the judge to make privilege rulings. Interestingly, Judge Scheindlin advocated a "pre-motion conference" for virtually all motions, in which the attorneys summarize what they intend to argue, and the judge gives feedback as to what should be briefed, what argument is a loser, etc. Oral argument on all substantive motions is recommended, along with very strictly-enforced page limitations on briefs (25, 25, and 10).
Judge Scheindlin later suggested that summary judgment was overused, and that a judge's decision will never have the same credibility as the judgment of the community in a jury trial. Noting the "huge amount" of papers in a summary judgment motion, she sometimes asks herself, "What are these lawyers thinking? They could have tried this case" in the time it took to prepare the motion.
Judge Lois Bloom, who oversees all pro se litigation in the Southern District of New York, spoke on access to justice and pro se litigation. She began by noting that US statute allows parties to conduct their own cases personally, and that the court house door is open to everyone. Judge Bloom stated that approximately 25% of federal district courts' civil caseload involves pro se litigants, and that percentage rises to 40% at the appellate court level. Approximately 96% of prisoner litigation is pro se, but less than half of the pro se cases are now brought by prisoners.
Examples of these pro se cases include, on the plaintiff side, employment discrimination cases and fair debt collection practices cases, and on the defendant side, student loan recovery and illegal downloading. The same FRCP apply, but there are some special rules for pro se cases. Judge Bloom created special form orders such as to get initial disclosures in employment cases.
She stated that she "would rather have an earnest pro se litigant than a bad lawyer, any day." To give people their day in court means holding repeated conferences. She shows concern for ordinary citizens, stating that "every week" she gets more cases about "the bad things that happen to people" on a stop-and-frisk.
Judge Bloom recognizes a "strong link between procedural justice and how people perceive the courts." She hopes law schools will highlight the fact that 25% of civil cases are now pro se, and encourages Civil Procedure professors to keep students' eyes on the ultimate goals of litigation, not the discrete procedural steps along the way.
Judge Young, batting cleanup, warned he might "come off as a skunk at the wedding." He endorsed his colleagues' suggestions, but stated in general, "We have so deconstructed the role of the trial judge" that "we think the goal is through-put," or getting the cases through. But the goal is adjudication. "That is what is special about judges." Settlement and mediated resolution are by-products of the drive towards trial. Trial is what focuses the litigants' and the trial lawyers' minds.
He stated that the jury is "dying." In the last eight years a person's chance of being seated as a juror in federal court has declined more than 30%. Federal judges are on the bench less than ever. The average district court judge tries less than one case a month, or about eight to nine trials a year. So there's less fact-finding, which "foreshadows the twilight of judicial independence." He referred the audience to an article by Judge Lee Rosenthal and Professor Steven Gensler about "the reappearing judge," and to an article by Judge Young in Penn State Law Review.
Judge Young said there was a need to focus on enhancing our jury system. He noted that the strategic plan for the US District Courts only mentions jurors twice. Jurors should be allowed to take notes and ask questions as a matter of course. Moreover, even if the statute isn't changed, individual judges can require 12-person jurors. Social science research suggests that the best size for small-group decision-making is 10 to 14 persons. Judge Young believes there is a need for scholarship on issues relating to juries, including the American juror as a constitutional officer as to which Congress should not be able to cut off funding.
Judge Young said that "we ought to be thinking of ourselves more as federal courts than as individual judges," adding that "injustice anywhere in the United States is injustice everywhere." He praised the committee on inter-circuit assignment; for example, thirty-two judges were lined up to try tobacco cases in the Middle District of Florida. He advocated for more inter-circuit assignment of cases.
Judge Young also stated that "although we deny it, the grants of summary judgment are too frequent." He called affidavits the "Potemkin villages" of modern procedure, all facade and nothing inside. He also branded status conferences as "a terrible waste of time," suggesting instead that "you set the key dates and you don't move them." He also said that people don't necessarily want a trial: they want the reasonable expectation of a trial. That is what "brings the economically powerful to the bargaining table."
Dean Diller then asked the panelists about the proposed amendments to the FRCP.
Judge Bloom responded that she believed that rules committees were "self-perpetuating," and that we needed to get away from the idea that the rules need to be amended every few years. She thinks that the new proposals are being pushed by defense attorneys who want to cut back on plaintiffs' access. In the Eastern District of New York, where civil cases are automatically assigned to a magistrate judge until the time of trial, "it is a real outlier" that needs any revision to the rules. She believes that the "proportionality" amendment will be a "Pandora's box."
Judge Robinson agreed that the proposed amendments would cause at least as much "operational pain" as they would cure.
Professor Liz Schneider from Brooklyn Law School posed a hypothetical: what if the SDNY passed a local rule that "we discourage the filing and granting of summary judgment motions." Judge Scheindlin indicated that many law firms would not be receptive because it would hurt their revenues. "If the lawyers cared about cost, they wouldn't do summary judgment motions."
Wednesday, January 1, 2014
Happy new year to everyone! I've spent some time between shopping, cooking, and eating – will the holidays NEVER END?? – looking at the public comments submitted on the proposed amendments to the Federal Rules of Civil Procedure.
I looked at all the comments filed up to December 19, 2013. Most of the comments were filed by self-identified plaintiffs' lawyers. A fair number of commenters did not explicitly identify the type of client they primarily represented. As 2013 progressed, a smattering of self-identified defendants' attorneys commented. I counted only three full-time law professors among the commenters and two federal judges (most were opposed to the amendments). I plan to comment and am presently working on my draft. I oppose most of the amendments.
The results so far: of 328 non-duplicate filings, 281 commenters, or 86%, were opposed to all the amendments they commented on. (Most commenters did not address all of the amendments.) Thirty-one commenters (9%) were opposed to some of the amendments and supported some of the amendments. These were primarily lawyers who opposed most of the amendments but found one or two amendments to say something nice about, probably for the sake of politeness or credibility.
That leaves 11 commenters (3%) supporting the amendments. Of those 11, six were self-identified defendants' lawyers, and five did not identify the type of client primarily represented.
Plaintiffs' lawyers gave example after example of meritorious cases they had handled where the proposed presumptive limits on discovery and the proposed redefinition of the scope of discovery would have stopped them from surviving a summary judgment motion.
Before the so-called "Duke Conference" that germinated these proposals, the Federal Judicial Center surveyed attorneys who handled cases that terminated in the last quarter of 2008. The results of private attorney responses to the statement "The outcomes of cases in the federal system are generally fair" were:
Federal Judicial Center Survey, 2009
Private Attorney Responses to the Statement
"The outcomes of cases in the federal system are generally fair"
(frequencies are estimated, not provided by FJC)
Agree or Strongly Agree
Disagree or Strongly Disagree
"Neither Agree Nor Disagree" or "Can't Say"
Number of Private Attorneys
Private attorneys primarily representing plaintiffs
N = 436
N = 182
N = 192
Private attorneys primarily representing defendants
N = 769
N = 40
N = 149
These results were not included in the FJC's final report on the survey. They are contained in the preliminary report, although not in the detail above, which I estimated from other information the FJC provided.
Plaintiffs' attorneys, in other words, were more than five times more likely than defendants' attorneys to believe that the outcome of cases in the federal system is substantively not fair. Now, as evidenced by the public comments, the vast majority of plaintiffs' attorneys oppose the proposed amendments to the FRCP while the vast majority of defendants' attorneys support the amendments.
Please, someone convince me not to give in to cynicism. We're starting a new semester on Monday.
See you at AALS.
Saturday, December 21, 2013
The Federal Court Management Statistics for fiscal year 2013 (ending September 30, 2013) are posted here.
District court filings were 391,652 in FY 2013, up 1% from 386,664 in 2012 but less than filings in 2011 or 2010.
The annual report for FY 2013 is not yet available.
Monday, December 9, 2013
Professors Charlie Sullivan and Tim Glynn (Seton Hall) have uncovered what appears to be a draft Supreme Court opinion in Pasquinade v. Quillet Enterprises, Inc. Or not. Here’s the abstract:
The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States. Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.
In light of its unverified origins, the Pasquinade opinion should not be cited as authority. Nevertheless, it contains a few points of interest, and, who knows, could represent a kind of trial run by the Justice who supposedly authored it, complete with reaction to anticipated dissent. We express no opinion on the matter and merely offer Pasquinade “for what it’s worth.”
The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."
Apparently without irony, Third Branch notes, "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."
Tuesday, December 3, 2013
Today the Supreme Court issued a unanimous decision in Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex. (No. 12-929), which considers the proper procedural vehicle for enforcing a contractual forum-selection clause when the plaintiff files in a federal district that violates that clause. A few highlights from the opinion by Justice Alito:
- Motions under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) are not appropriate in this situation. A forum-selection clause does not make a venue “improper” for purposes of Rule 12(b)(3) or “wrong” for purposes of § 1406(a). [See pp. 4-8]
- A motion to transfer under 28 U.S.C. § 1404(a) is appropriate in this situation. Section 1404(a) “provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district.” [p.9]
- “[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.” [pp.9-10]
- It remains an open question whether a forum-selection clause could be enforced through other vehicles, such as a Rule 12(b)(6) motion. This possibility had been urged by Professor Stephen Sachs in amicus brief, but the Court did not address it because the parties themselves did not raise it. Justice Alito adds: “Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.” [p.11]
The opinion then addresses how a court should decide a § 1404(a) motion to enforce a forum-selection clause. Justice Alito writes:
“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.5 Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied.” [p.11]
(Footnote 5 makes clear that the Court’s analysis “presupposes a contractually valid forum-selection clause,” which leaves open the possibility that such a clause could be challenged as contractually invalid.) Justice Alito then explains: “The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways.” [p.12] They are:
- “First, the plaintiff ’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” [p.13]
- “Second, a court evaluating a defendant’s § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties’ private interests…. As a consequence, a district court may consider arguments about public-interest factors only.” [pp.13-14]
- “Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules.” [p.14]
Footnote 8 states that “the same standards should apply to should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums.”
The Court ultimately reverses the Fifth Circuit, but it remands for further proceedings: “Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question.” [p.17]
Monday, December 2, 2013
See how the Supreme Court of Tennessee addresses these issues in Cooper v. Glasser, __ S.W.3d __, 2013 WL 6174469 (Tenn. Nov. 26, 2013). The opinion is here. It begins:
Monday, November 18, 2013
Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:
The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.
The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]
Friday, November 15, 2013
H.R. 2655, the so-called "Lawsuit Abuse Reduction Act of 2013," passed the House of Representatives yesterday 228-195 (sigh . . . ).
In 2011, Professor Lonny Hoffman testified against this bill before the House Judiciary Committee.
Thursday, November 14, 2013
A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.
The Judicial Conference approved national implementation of the project in September 2012, expanding participation from the original 29 courts. FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.
Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).
Wednesday, November 6, 2013
Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:
- Emily Bazelon, Slate: Shut Up, Judge!
- Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
- Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
- The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)
More coverage here.
Sunday, November 3, 2013
We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:
- Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
- Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
- Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
- Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps
Friday, November 1, 2013
There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).
- Monday, November 4: SCOTUS oral argument in Walden v. Fiore (personal jurisdiction and venue)
- Tuesday, November 5: Senate Judiciary Committee Hearing, Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice? (witnesses: Arthur Miller, Andrew Pincus, Sherrilyn Ifill)
- Tuesday, November 5: SCOTUS announces one or more opinions in argued cases (could it be Daimler v. Bauman?)
- Tuesday, November 5: SCOTUS oral argument in Sprint v. Jacobs (Younger abstention)
- Wednesday, November 6: SCOTUS oral argument in Mississippi ex rel. Jim Hood v. AU Optronics Corp. (Class Action Fairness Act)
- Thursday, November 7: Public hearing on the proposed amendments to the Federal Rules of Civil Procedure
Thursday, October 31, 2013
Second Circuit Stays SDNY's Stop-and-Frisk Rulings Pending Appeal, Orders District Judge Removed From Case
In August, U.S. District Judge Shira Scheindlin ruled that the New York City Police Department’s “stop and frisk” policy was unconstitutional and ordered a series of remedies. Today the Second Circuit not only stayed Judge Scheindlin’s orders and opinions pending appeal; it also ordered that she be taken off the case. From the Second Circuit’s order (footnotes omitted):
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
Friday, October 25, 2013
Friday, October 18, 2013
This week the Supreme Court heard oral argument in Daimler AG v. Bauman (covered earlier here and here). Daimler resembles last Term's Kiobel case, in that it involves claims against a foreign defendant (Daimler) for human rights and other violations committed abroad (in Argentina, during the "dirty war" of the 1970s and 1980s) under the Alien Tort Statute (ATS). But the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: "whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State."
During the argument, plaintiffs' counsel acknowledged that their ATS claims faced an "uphill struggle" in light of Kiobel, but they are also pursuing state law and foreign law claims – for which personal jurisdiction would remain a live issue. Given the question presented, the more significant SCOTUS precursor may be the 2011 Goodyear decision, not Kiobel. Writing for a unanimous Court, Justice Ginsburg wrote in Goodyear that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." She cited (1) a corporation's principal place of business and (2) its state or country of incorporation as "paradigms" for general jurisdiction; but it remains unclear what else could render a corporation "essentially at home" in a particular forum. In particular, Goodyear acknowledged – but did not address – the argument that distinct corporate entities might be treated as a "single enterprise" for jurisdictional purposes. In Daimler, the Ninth Circuit found that California had general jurisdiction over Daimler based on the activities its American subsidiary, Mercedes Benz USA (MBUSA).
The most common reaction to this week's oral argument has been that the Justices were quite skeptical of the idea that Daimler was subject to general jurisdiction in California. That may be so, but several interesting issues came up during the argument, and there are still a number of different ways the Court could ultimately dispose of the case (some of them quite narrow).
Sunday, October 13, 2013
Lee Epstein (USC): “Claims about the Roberts court’s activism seem overwrought.”
Suzanna Sherry (Vanderbilt): "[T]he Supreme Court had erred more often in sustaining laws than in striking them down. 'Too much of a good thing can be bad,' she wrote, 'and democracy is no exception.'" Professor Sherry's article, entitled "Why We Need More Judicial Activism," is forthcoming in early 2014. Here's the abstract:
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.
Lee Epstein (USC) & Andrew Martin (Wash U): “In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws.” Professors Epstein and Martin co-authored an article last year on the topic of judicial activism and the Roberts Court, entitled "Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State, and Local Laws."
Liptak's article also quotes a number of others, including several of the Justices themselves. The article is worth a read for those interested in the judicial activism debate.