Friday, February 20, 2015

Thomas & Price on the Federal Rulemaking Process and Atypical Cases

Suja Thomas and Dawson Price have posted on SSRN a draft of their article, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, which will be published in the Nevada Law Journal. Here’s the abstract:

Commentators have criticized the rulemaking process for decades. Legal scholarship has focused primarily on challenging its constitutionality, questioning whether different actors make better rulemakers, and arguing that some entities have too much power and others have too little. Other commentators have focused on the tools that should be employed by rulemakers when evaluating proposals, focusing on the importance of empirical studies to support rule changes and the role of bias in the formulation of certain rules. In this symposium article, we add to this scholarship by arguing that advisory committees should refrain from proposing and adopting rule amendments that are motivated by atypical cases. Such rules will also affect typical cases, creating bad law for typical cases because the rules were not formulated for such cases. The article describes the thesis of a previous article on how atypical cases make bad law and applies the framework to a current amendment to change the scope of discovery, showing atypical cases make bad rules.

 

 

February 20, 2015 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, February 18, 2015

Frost on State Courts and Lower Federal Court Precedent

Amanda Frost has posted on SSRN her recently published article, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015). This has been an important issue, of course, in the recent litigation over Alabama’s same-sex marriage ban. Last week Alabama Supreme Court Justice Bolin cited the article in an opinion concurring in the refusal to hear the Mobile probate judge’s action seeking clarification of Chief Justice Moore’s earlier order instructing probate judges not to issue same-sex marriage licenses.

Here’s the abstract:

Continue reading

February 18, 2015 in Federal Courts, Recent Scholarship, State Courts | Permalink | Comments (0)

Tuesday, February 17, 2015

More Federal Court Filings in the Alabama Same-Sex Marriage Litigation

Lots of filing activity today in Strawser, one of the federal cases pending before Judge Granade on the constitutionality of Alabama’s same-sex marriage ban. As we covered earlier, the Alabama Supreme Court recently ordered briefing on an Emergency Petition for a Writ of Mandamus filed by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. This prompted the Jefferson County probate judge (who had been granting licenses to same-sex couples) to seek to intervene in the federal litigation.

Kent Faulk has this report on today’s filings, but here’s a summary:

You can find copies of all the important filings, rulings, and other documents here.

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, State Courts | Permalink | Comments (0)

Jefferson County Probate Judge Seeks to Intervene in Federal Same-Sex Marriage Lawsuit

Over the weekend, Jefferson County Probate Judge Alan King—who was one of the first to begin granting marriage licenses to same-sex couples last week—filed an Emergency Motion to Intervene in the Strawser case pending before Judge Granade in federal court. Kent Faulk as a report here.

The motion was prompted by the Emergency Petition for a Writ of Mandamus that two groups opposing same-sex marriage filed in the Alabama Supreme Court. Those groups (the Alabama Policy Institute and Alabama Citizens Action Program) filed that petition as “relators” for the State of Alabama, and they seek to order probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. The petition names as respondents several Alabama probate judges—including King—and names as Doe respondents every probate judge in Alabama. Late last Friday, over the dissent of two Justices, the Alabama Supreme Court set a briefing schedule requiring a response to the mandamus petition. One of the issues for which the Alabama Supreme Court ordered briefing was “any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction.” The respondents’ briefing is due this Wednesday (2/18), and the reply briefing is due on Friday (2/20).

In his motion to intervene in the federal Strawser case, King contends that the two groups who filed the mandamus petition are “acting in concert with and on behalf of the State of Alabama” and in doing so are violating the injunctions issued by Judge Granade. King’s motion also states:

“Judge King faces an imminent risk of being subjected to a state court Order that will put him in the position of having to choose either to disregard the United States Constitution, which he is sworn to uphold, thereby subjecting him to liability and perhaps personal liability for damages and attorney fees, or to disregard a state court Order thereby subjecting him to contempt proceedings, sanctions, and/or possible impeachment under Alabama law.” 

 

 

 

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Sunday, February 15, 2015

Alabama Supreme Court Orders Briefing on Mandamus Petition Seeking to Halt Same-Sex Marriages

Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).

Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:

“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including , but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”

Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:

“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling on the constitutionality of the ministerial acts a probate court performs, which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”

Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”

 

 

 

February 15, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Nash on Congressional Standing

Jonathan Remy Nash (Emory) has posted A Functional Theory of Congressional Standing to SSRN.

The Supreme Court has offered scarce, and inconsistent, guidance on congressional standing — that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It also has invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions extend to gathering relevant information, casting votes, and (even where no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases where (i) congressional plaintiffs validly seek information from the executive branch and (ii) in the limited circumstance where the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power, provided that enough legislators join the suit so as to be able to lay claim to the relevant institutional bargaining power.

RJE

February 15, 2015 | Permalink | Comments (0)

Friday, February 13, 2015

Ohio Supreme Court Decision on Standing & Jurisdiction

I have a guest post over at Legally Speaking Ohio about an interesting Ohio Supreme Court case on standing and jurisdiction. The decision is Bank of America v. Kuchta, which Marianna Bettman aptly called “a field day for civil procedure geeks.”

 

 

February 13, 2015 in Adam Steinman, Recent Decisions, Standing, State Courts, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Thursday, February 12, 2015

Ruling in Alabama Marriage Litigation: Judge Granade Grants Injunction Against Mobile Probate Judge

Following today's hearing, federal judge Callie Granade issued a preliminary injunction against Mobile County Probate Judge Don Davis. Here's the operative text:

It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

 

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Today's Federal Court Hearing in the Alabama Marriage Litigation (and More)

Reports are that today's hearing in Strawser has concluded with no ruling from Judge Granade.

One interesting update to the Strawser docket is a filing by Mobile County Probate Judge Don Davis entitled, Notice to this Court of Presently Conflicting and Potentially Conflicting Authority Based on Recent Filings. Included as attachments to this notice are two documents that I hadn't seen before.

One is the “In Rem Action” that Davis filed with the Alabama Supreme Court seeking clarification regarding Chief Justice Roy Moore's Sunday order that probate judges should not issue marriage licenses to same-sex couples. It starts on p.14 of the pdf file. The Alabama Supreme Court dismissed this petition yesterday, concluding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.”

The second is an “Emergency Petition for a Writ of Mandamus” that was apparently filed yesterday in the Alabama Supreme Court. It starts on p.44 of the pdf file. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, ostensibly as relators for the State of Alabama, and it seeks a writ of mandamus directing each probate judge in Alabama “not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, February 11, 2015

Developments in the Alabama Same-Sex Marriage Litigation Ahead of Tomorrow's Federal Court Hearing

As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.

This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:

There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.

According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.

And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).

As always, stay tuned. You can find copies of important rulings and documents here

 

 

 

February 11, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

 

 

February 11, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Tuesday, February 10, 2015

Where Things Stand in the Alabama Same-Sex Marriage Litigation

Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.

On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.

On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).

You can find copies relevant rulings and documents here.

 

February 10, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Second Circuit Opinion on Class Certification & SCOTUS’s Comcast Decision

Today the U.S. Court of Appeals for the Second Circuit issued its decision in Roach v. T.L. Cannon Corp. The opinion begins:

“This appeal presents the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), overruled the law of this Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis. The United States District Court for the Northern District of New York (McAvoy, J.) concluded that Comcast permits certification under Rule 23(b)(3) only when damages are measurable on a classwide basis, and denied Plaintiffs-Appellants’ motion for class certification.

“We hold that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis.”

And from later in the opinion:

“The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations. Our reading of Comcast is consistent with the Supreme Court’s statement in Comcast that its decision turned upon 'the straightforward application of class-certification principles.' 133 S. Ct. at 1433. Our reading is also consistent with the interpretation of those Circuits that have had the opportunity to apply Comcast.”

 

H/T: Perry Cooper 

 

 

 

February 10, 2015 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

 

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, February 9, 2015

The Latest in the Alabama Same-Sex Marriage Litigation

Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.

Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:

“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”

Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:

“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”

And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”

As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:

 [Updated to include the statement by Governor Bentley.]

 

 

 

February 9, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Public Record Sheds Little Light on the "One Millionth Discovery Dispute"

Law.com and the ABA Journal both reported last week on an order entitled "Order on One Millionth Discovery Dispute" issued by Judge Rosemary Collyer in the case of Carolyn Herron v. Fannie Mae et al., No. 10-943 (D.D.C. February 2, 2015).  (The Blog of Legal Times earlier reported strained relations between the parties' counsel dating all the way back to 2011.) 

 

"The parties bring yet another discovery dispute before the Court," began the judge, proclaiming herself "exhausted with these disputes."  The order and the stories that reported it implied that the parties were equally to blame for the contentiousness of discovery and the repeated extensions of the discovery cutoff.    

 

So I wondered: what actually happened in this case?  Was discovery to blame for the case's five-years-and-counting duration?  If so, was there any way to attach responsibility, beyond the standard allegations of "overbroad fishing" by the plaintiff and "stonewalling" by the defendants?  

 

Through PACER I accessed the docket record and many of the documents filed in the case.  In my view, the most striking thing that I found is that it is virtually impossible for a member of the public using only PACER to get to the bottom of discovery in this case. 

 

This is not just because Rule 5 of the Federal Rules of Civil Procedure  prohibits the filing of discovery documents "until they are used in the proceeding or the court orders filing."  The public unavailability of most of the discovery disputes in this case on PACER results from two additional things.  First, Judge Collyer required the parties to bring discovery disputes to her attention by letter to her chambers, followed by a telephone conference, usually followed by a brief minute order.  Thus, unlike a formal motion to compel that would attach the discovery documents at issue as exhibits, rendering them available on PACER, the details of these disputes are not publicly available.  Second, protective orders were entered that required the filing under seal of the lion's share of the formal motions and responses that did get filed.       

Continue reading

February 9, 2015 in Discovery, In the News, Recent Decisions | Permalink | Comments (0)

Wednesday, February 4, 2015

Missing Pro Se Litigant With SCOTUS-worthy Rule 4(m) Issue Resurfaces

We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m).  The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:

Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.

But the story doesn’t end there. Yesterday Mr. Chen—represented by Paul Clement—filed a petition for rehearing asking for his case to be reinstated. From today’s Wall Street Journal story:

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

Stay tuned.

 

 

 

 

 

February 4, 2015 in Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 3, 2015

Dart Cherokee and Class-Certification Appeals under Rule 23(f)

We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.

Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”

 

February 3, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 31, 2015

Some of the URLs in Our Footnotes Are Probably Gone Already

Jill Lepore's article "The Cobweb: Can the Internet Be archived?" in last week's The New Yorker  discussed the ephemeral nature of websites and the consequent impermanence of footnote references to URLs.  "Link rot" is when you click on a URL and receive the unwelcome message “Page Not Found.”  "Content drift" is "more pernicious" because the original reference has been overwritten, erased, or moved.  The problem is widespread:

According to a 2014 study conducted at Harvard Law School, “more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.”

January 31, 2015 in Current Affairs | Permalink | Comments (0)

Friday, January 30, 2015

Coleman on "Civil-izing Federalism"

Brooke Coleman, Seattle University School of Law, has posted on SSRN her article, "Civil-izing Federalism," published in Tulane Law Review.

Abstract:

When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts.

This Article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the Article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This Article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system.

 

January 30, 2015 in Recent Scholarship | Permalink | Comments (0)