Tuesday, May 27, 2014
Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.
In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. Here’s how Justice Ginsburg puts things in footnote 5: “In ruling on a motion to dismiss, we have instructed, courts ‘must take all of the factual allegations in the complaint as true,’ but ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).” And on page 12: “[U]nder the governing pleading standard, the ‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ Iqbal, 556 U.S., at 678 (internal quotation marks omitted).”
Part II.B of the opinion contains the most detailed discussion of qualified immunity and its requirement that a plaintiff’s claim be based on a right that was “clearly established at the time of the challenged conduct.” [p.12]. Among other things, Justice Ginsburg writes:
“No decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. ... No clearly established law, we agree, required the Secret Service to interfere with even more speech than security concerns would require in an attempt to keep opposing groups at roughly equal distances from the President. And surely no such law required the agents to attempt to maintain equal distances by prevailing upon the President not to dine at the Inn. [pp.14-15 (citations and internal quotation marks omitted)]”
Part III of the opinion addresses a potentially distinct theory of liability, and that part of the opinion may prove more instructive on pleading standards generally. Part III begins: “The protesters allege that, when the agents directed their displacement, the agents acted not to ensure the President’s safety from handguns or explosive devices. Instead, the protesters urge, the agents had them moved solely to insulate the President from their message, thereby giving the President’s supporters greater visibility and audibility.” [pp.15-16] Justice Ginsburg does recognize the possibility that “clearly established law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had no objectively reasonable security rationale for their conduct, but acted solely to inhibit the expression of disfavored views.” [p.16 (citations and internal quotation marks omitted)] She rejects this theory, however, noting that a map of the relevant area that the plaintiffs had included in their complaint “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions”; the map “corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.” [p.16]
Although the plaintiffs “make three arguments to shore up their charge that the agents’ asserted security concerns are disingenuous,” [p.16] Justice Ginsburg is not persuaded. In particular, she writes:
“[A]s the map attached to the complaint shows, see supra, at 4, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location. See supra, at 14. Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction.” [p.18 (citations and internal quotation marks omitted)]
One of the many questions that has vexed courts, commentators, and practitioners after Twombly and Iqbal is how to evaluate allegations about a defendant’s intent. Although the 2002 decision in Swierkiewicz v. Sorema suggested a very lenient approach to such allegations, many have read Iqbal – which also involved allegations of discriminatory animus – to require a stricter approach. At first glance, Wood does not seem to provide a conclusive resolution. Although the Court rejects the plaintiffs’ viewpoint-discrimination theory, Justice Ginsburg relies heavily on the fact that material in the complaint itself – the map of the relevant area – “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions.” [p.16] This is not likely be a regular occurrence in cases involving discriminatory intent. Another feature of Wood may be even more important. Given Justice Ginsburg’s reasoning regarding qualified immunity, the plaintiffs would have had to show that “the agents had no objectively reasonable security rationale.” [p.16] Part III of the opinion, therefore, did not hinge on the premise that viewpoint discrimination played no role at all in the defendants’ decision; rather – as a matter of the substantive law governing the defendants’ qualified immunity defense – the presence of an objectively reasonable security rationale doomed the plaintiffs’ claims even if viewpoint discrimination also played a role.
PS: Readers may have noticed Adam Liptak’s recent New York Times article describing how Supreme Court opinions can be revised by the Justices after they are initially issued – sometimes years later. For what it’s worth, then, I’m including in this post not only the relevant link to the opinion on the Supreme Court’s website, but also a downloaded version of the opinion as it originally appeared there this morning:
Corina D. Gerety and Brittany K.T. Kauffman, of The Institute for the Advancement of the American Legal System at the University of Denver, have published a Summary of Empirical Research on the Civil Justice Process: 2008-2013.
An explanation of its Scope provides, "This report provides a synthesis of the relevant empirical research on the civil justice process released from 2008 to 2013. In addition to IAALS research, it contains studies conducted by a variety of organizations and individuals, including the Federal Judicial Center, the National Center for State Courts, the RAND Corporation, and others. We, the authors, refer to 39 studies in total, representing a relatively even mix of case file/docket studies and surveys/interviews."
Thursday, May 22, 2014
The National Law Journal has made available in digital form 257 financial disclosure reports for federal appellate judges for the year 2012 (the last year available), which the Journal had to retrieve manually.
I clicked on the first name, Judge D. Brooks Smith, appointed to the Third Circuit in 2001. Judge Smith received over $23,000 from Penn State University Dickinson School of Law as an adjunct professor in the fall semester of 2012. He was also reimbursed for travel by two law school Federalist Society chapters in 2012 as a "speaker for education program."
The reports should prove interesting reading.
Wednesday, May 21, 2014
The Southeastern Association of Law Schools (SEALS) annual conference will be held August 1-7, 2014 at The Omni, Amelia Island, Florida. The program is available here.
Panels and discussion groups related to civil litigation include:
SUPREME COURT AND LEGISLATIVE UPDATE: BUSINESS AND REGULATORY ISSUES
This part of the Supreme Court and Legislative Update panels focuses on decisions relating to corporate issues, civil litigation, and administrative and business issues, as well as important legislation enacted by Congress or the states.
Moderator: Professor Charles "Rocky" Rhodes, South Texas College of Law
Speakers: Professor Christopher Green, The University of Mississippi School of Law; Professor Erin Hawley, University of Missouri School of Law; Professor Joan Heminway, The University of Tennessee College of Law; Professor David Hricik, Mercer University Law School; Professor Andrew Siegel, Seattle University School of Law; Professor Douglas Williams, Saint Louis University School of Law
Discussion Group: MANDATORY ARBITRATION AND JUSTICE
Mandatory binding arbitration has come under increasing scrutiny in Congress, the Supreme Court, and public discourse. Critics argue that the process is unfair because it is not truly consensual or because it lacks important procedural safeguards. By contrast, defenders claim that baseline norms of fairness are presupposed in the idea of arbitration and that outcomes for consumers and employees are at least as good as those in litigation.
Is justice possible in mandatory arbitration? How important is it in relation to other values such as autonomy and efficiency? How should we measure “justice”? We will discuss both historical and contemporary focuses, as well as individual and group perspectives.
Moderators: Professor Hiro Aragaki, Loyola Law School, Los Angeles; Professor Andrea Doneff, Atlanta's John Marshall Law School
Discussants: Professor Sarah Cole, The Ohio State University, Moritz College of Law; Professor Jaime Dodge, University of Georgia School of Law; Professor Richard Frankel, Drexel University School of Law; Professor Michael Green, Texas A&M University School of Law; Professor Jill Gross, Pace University School of Law; Professor Stephen Ware, University of Kansas School of Law; Professor Nancy Welsh, Penn State University, Dickinson School of Law; Professor Maureen Weston, Pepperdine University School of Law
Discussion Group: CIVIL PROCEDURE DISCUSSION GROUP: PROCEDURAL HURDLES AND THE DAY IN COURT
The judicial process has transformed over the last decades, which has impacted the ability of plaintiffs to obtain a day in court. Federal statutory and rule revisions, as well as recent Supreme Court decisions, have made marked changes in the enforcement of arbitration clauses, federal subject matter jurisdiction, personal jurisdiction, venue, pleading standards, class certification standards, and the discovery process. These changes have combined to place greater emphasis on the pretrial process at the expense of the availability of a trial. This discussion group will explore these changes, at both an individual and collective level, and the resulting changes to the American system of procedure. Discussants will exchange papers before the conference examining these issues from a variety of perspectives.
Moderators: Professor Michael Allen, Stetson University College of Law; Professor Thomas Metzloff, Duke University School of Law
Discussants: Professor Donald Childress III, Pepperdine University School of Law; Professor Scott Dodson, University of California, Hastings, College of the Law; Professor Richard Freer, Emory University School of Law; Professor Paul Gugliuzza, Boston University School of Law; Professor Megan La Belle, The Catholic University of America, Columbus School of Law; Professor Benjamin Madison, Regent University School of Law; Professor Philip Pucillo, Michigan State University College of Law; Professor Charles Rocky Rhodes, South Texas College of Law; Professor Cassandra Robertson, Case Western Reserve University School of Law; Professor Howard Wasserman, Florida International University College of Law
NEW SCHOLARS COLLOQUIA (PANEL #6)
Civil procedure and Courts
Moderator: Professor Scott Dodson, University of California, Hastings, College of the Law
Speakers: Professor Ramona Lampley, St. Mary's University School of Law, Arbitration, Transparency, and Access to Courts (Mentor: Professor Thomas Metzloff, Duke University School of Law); Professor Jason Parkin, Pace University School of Law, Due Process Disaggregation (Mentor: Professor Benjamin Barton, The University of Tennessee College of Law); Professor Victoria Shannon, Washington and Lee University School of Law, Regulating the Procedural Facet of Third-Party Funding (Mentor: Professor Danielle Holley-Walker, University of South Carolina School of Law); Professor Jessica Steinberg, The George Washington University Law School, Demand Side Reform in the Poor People's Court (Mentor: Professor Cassandra Burke Robertson, Case Western Reserve University School of Law)
If I missed any, please let me know. Thanks.
Thursday, May 8, 2014
Ed Brunet and John Parry (Lewis & Clark) present the following guest post:
The growing list of summary judgment skeptics should find much to like in Monday’s Tolan v. Cotton decision. In a per curiam opinion, the Supreme Court reversed a Fifth Circuit decision that had affirmed a grant of summary judgment on grounds of qualified immunity in a section 1983 case. Although the decision of the Supreme Court turns largely on substantive civil rights law, Tolan is surprisingly instructive regarding summary judgment mechanics. The Supreme Court emphasized that the lower courts had not weighed inferences in favor of the nonmovant regarding the substantive element of whether the alleged excessive force used by the defendant police officer violated “clearly established rights,” and it asserted that the “judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Some of the basic facts are undisputed. This case involved a police officer’s 2 a.m. stop of a car that had “turned quickly” onto a residential street. The decision to stop followed the officer’s keying in the wrong license number into his computer and incorrectly thinking that the car was stolen. The arresting officer drew his pistol and ordered the two men in the car to the ground. When the parents of plaintiff Tolan emerged from the front door of the house where the car had parked, the officer stated that he believed that the two men had stolen the car and the excited parents pointed out that they owned the vehicle and the house. The mother’s continued protestations caused officer Cotton, a new arrival on the scene who also had his gun drawn, to order her to stand against the garage door.
The evidence was clearly conflicting regarding what happened to Tolan’s mother. Tolan presented evidence that his mother was grabbed by the arm by officer Cotton and slammed to the ground with such force that bruising, confirmed by photos, occurred. Cotton denied slamming her into the garage and contended that he was escorting her, she “flipped her arm up and told him to get his hands off her.” This scene ended when Tolan stated, “Get your fucking hands off my mom,” to which Cotton responded by firing three shots at Tolan, causing liver and lung damage. A dispute of facts exists as to whether Cotton had pushed Tolan’s mother against the garage door, and whether Tolan was standing or had risen to his knees when shot. There was also a dispute about the quality of lighting at the front of the house.
The lower court opinion resolved the factual issues against Tolan, stating “his shouting and abruptly attempting to approach Sergeant Cotton inflamed an already tense situation; in the light of his actions at the scene, a genuine dispute of material fact does not exist regarding whether Sergeant Cotton acted objectively unreasonably.” The Supreme Court, in turn, chastised the Fifth Circuit for “failing to credit evidence that contradicted some of its key factual conclusions” and for “a clear misapprehension of summary judgment standards in light of our precedents.”
It is tempting to assess this case as a major summary judgment decision. After all, this is the first summary judgment victory in the Supreme Court for a civil rights plaintiff in some time. The rhetoric used by the Court is a time-worn cliché, namely that “at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” This is hardly new law. Its use in a per curiam opinion summary reversal arguably signals a major change in attitude. But, it may be that all the Supreme Court is doing here is correcting a grievous error. It seems almost impossible not to find disputed issues of fact on this record, as Judge Dennis observed in his dissent from rehearing en banc. If the Court had let the lower court decision stand, the error would win the day. Yet, if that had been all the Court wanted to accomplish, it could have simply vacated and remanded to the lower courts with instructions to weigh inferences in favor of the nonmovant, without detailing the facts and the Fifth Circuit’s errors.
At the very least, the per curiam decision should embolden courts to identify disputed facts. Further, citing the landmark 1987 Anderson v. Creighton opinion – a case which typically is invoked against plaintiffs, not against defendants – Tolan reminds lower courts that the clearly established right at issue needs to be examined in “the ‘specific context of the case’” in order to avoid “import[ing] genuinely disputed factual propositions.”
Justice Alito concurred joined by Justice Scalia. He noted the unusual posture of the case in which the Court both granted a petition for certiorari and vacated the Fifth Circuit’s judgment. (Will Baude also comments on this aspect of the concurrence here.) He stresses that this was a typical summary judgment dispute over “whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment.” Alito goes on to conclude that the Court of Appeals “invoked the correct standard here.” The use of the word “standard” appears questionable. The directed verdict standard is the only standard used in summary judgment, replacing the old “doubt” standard of many circuits. More later!
Wednesday, May 7, 2014
The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"
The digest of the opinion states:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
The deadline for public comments is 5 p.m., June 24, 2014.
Saturday, May 3, 2014
Professor Colin Miller's EvidenceProf Blog reports on the Supreme Court's approval of amendments to the Federal Rules of Evidence that deal with hearsay: 801(d)(1)(B) (prior consistent statements), and 803(6), (7), and (8) (burden of proof in showing untrustworthiness of records of regularly conducted activities and public records). The amendments will take effect on December 1, 2014 unless Congress takes other action.
Friday, May 2, 2014
As a break from writing or grading your final exams (and to walk down the memory lane of law practice for some of us), here's a great reenactment of an argument during a deposition about the definition of a photocopier. The short video by writer and director Brett Weiner is part of the New York Times Op-Docs series and is a verbatim transcript of a deposition from an Ohio case.
Thursday, May 1, 2014
Call for Papers: AALS Section on Litigation
“The Future of Discovery”
AALS Annual Meeting
January 2-5, 2015, in Washington, D.C.
The AALS Section on Litigation will sponsor a panel discussion on “The Future of Discovery” at the January 2015 Annual Meeting of the Association of American Law Schools.
This program focuses on the future of discovery in civil litigation. Premised on a philosophy that parties ought to be able to obtain all relevant, nonprivileged information before trial, the discovery provisions in the original Federal Rules of Civil Procedure ushered in an era of broad discovery. By the 1980s, however, discovery had become a primary focus of litigation reform efforts. Since then, federal rulemakers have devoted recurrent attention to discovery reform. Many argue that additional discovery reform remains critical to reining in excessive burden, cost, and delay of civil litigation. Others assert that discovery does not impose excessive expense or delay in the broad run of cases; they criticize proposals to reduce the scope of discovery or to increase proportionality limits; and they question the impact of discovery changes on particular types of litigation as well as for the civil justice system as a whole. The current proposal to amend the federal discovery rules has deepened the discussion of these issues.
This program will explore the future of discovery. The program will include a speaker selected from this Call for Papers. Eligible papers may address any topic related to the future of civil discovery, including but not limited to, the appropriate role of proportionality in discovery; the empirical bases for reducing discovery or choosing among options for responding to perceived litigation excesses; the potential role of nontranssubstantive rules regarding discovery; the role of discovery sanctions; the impact of previous or proposed amendments to discovery rules; and the efficiencies that may be achieved or the access to justice issues that may arise as the scope of discovery changes. Essay and article length submissions are welcome.
The selected author will participate in the Section’s annual program, which will take place in January 2015, in Washington, D.C. Authors must rely on their own institutions for funding to attend the conference. The Review of Litigation has agreed to publish the selected paper and other articles that are submitted by panel members (subject to final approval of the article by the editors of that publication).
The deadline to submit a draft paper is Tuesday, September 2, 2014. Please submit the draft paper to Bernadette Bollas Genetin, Chair of the Section on Litigation, as an attachment to an e-mail sent to Bernadette Genetin, at email@example.com. The attachment should be in Word, WordPerfect, or PDF format. You will receive confirmation of receipt of your submission within 48 hours of submitting. Submissions will be reviewed by members of the Litigation Section’s Executive Committee. Decisions will be communicated by late September 2014.
Tuesday, April 29, 2014
Today the Supreme Court issued unanimous decisions in Octane Fitness v. Icon Health and Fitness (No. 12-1184) and Highmark Inc. v. Allcare Management Systems, Inc. (No. 12-1163), two cases on fee-shifting in patent cases. Both opinions were authored by Justice Sotomayor.
The Octane Fitness opinion begins:
Section 285 of the Patent Act authorizes a district court to award attorney’s fees in patent litigation. It provides, in its entirety, that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U. S. C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the United States Court of Appeals for the Federal Circuit held that “[a] case may be deemed exceptional” under §285 only in two limited circumstances: “when there has been some material inappropriate conduct,” or when the litigation is both “brought in subjective bad faith” and “objectively baseless.” Id., at 1381. The question before us is whether the Brooks Furniture framework is consistent with the statutory text. We hold that it is not. [Slip Op., p.1]
Rather, as Justice Sotomayor explains:
[A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. As in the comparable context of the Copyright Act, “‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994). [pp.7-8 (footnote omitted)]
And here’s how the Highmark opinion begins:
We granted certiorari to determine whether an appellate court should accord deference to a district court’s determination that litigation is “objectively baseless.” On the basis of our opinion in Octane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, argued together with this case and also issued today, we hold that an appellate court should review all aspects of a district court’s §285 determination for abuse of discretion. [Slip Op., p.1]
Monday, April 28, 2014
The Supreme Court of the United States has approved an amendment to Rule 77 that, in the words of the Standing Committee on Rules of Practice and Procedure, “corrects a cross-reference to Rule 6(a) that should have been changed when Rule 6(a) was amended in 2009.” Unless Congress intervenes, the amendment will take effect on December 1, 2014.
Adjust your syllabi accordingly.
If you’re interested in the more controversial batch of proposed amendments that would revise the discovery rules and eliminate the Forms, the Supreme Court is not likely to be acting on those until Spring 2015. And there are still a number of steps in the process, the next of which is the Standing Committee’s meeting in May.
Thursday, April 24, 2014
Second Annual Workshop for Corporate & Securities Litigation: Call for Papers
The University of Richmond School of Law and the University of Illinois College of Law invite submissions for the Second Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, October 24 and Saturday, October 25, 2014, in Richmond, Virginia.
This annual workshop brings together scholars focused on corporate and securities litigation to present their works-in-progress. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible. Appropriate topics include, but are not limited to, securities class actions, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis. Participants will generally be expected to have drafts completed by the fall, although there will be one or more "incubator" sessions for ideas in a more formative stage.
Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Richmond School of Law in Richmond, Virginia, on Friday, October 24 and Saturday, October 25, 2014. Hotel costs will be covered. Participants will pay for their own travel and other expenses.
The workshop is designed to maximize discussion and feedback. The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved.
If you are interested in participating, please send an abstract of the paper you would like to present to Verity Winship at firstname.lastname@example.org not later than Friday, May 30, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 27.
Wednesday, April 23, 2014
Alan Trammell (Brooklyn Law School) has posted Transactionalism Costs to SSRN.
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them.
First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion and estoppel doctrines on the back end of litigation). But frequently it is neither.
I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion and estoppel will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy — the power to shape preclusion and estoppel doctrines. Finally, it will offer certainty and predictability that parties never have had before — knowing exactly how broadly preclusion and estoppel will apply.
Tuesday, April 22, 2014
Seventh Annual Junior Faculty Federal Courts Workshop
CALL FOR PAPERS:
The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).
The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.
Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.
Monday, April 21, 2014
Via Gawker: "Connecticut Senator Richard Blumenthal received an unexpected lesson in practicing what you preach at a press conference yesterday. Standing on the platform at the Milford Metro-North station, Blumenthal and his easel narrowly dodged an oncoming train as Milford Mayor Ben Blake spoke about commuter safety."
It is a good reminder that as civil procedure profs our responsibilities include teaching important lessons of federalism. But also important lessons about not standing too close to trains...
Thursday, April 17, 2014
The New York Times has an interesting article today When "Liking" a Brand Online Voids the Right to Sue. From the article:
General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.
Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site.
UNIVERSITY OF AKRON LAW REVIEW
The Class Action After A Decade of Roberts Court Decisions
The Akron Law Review invites academic papers on the reasoning, dimensions, and possible impacts of one or more of the class action or other multi-party action cases decided by the “Roberts Court” (2005-present) We welcome papers of any length and request submission before September 14, 2014. Publication will occur in spring of 2015.
As the Supreme Court of the United States recognized:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231, 2246 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)). Earlier in 2014, the Court refused to intervene in a class action brought by consumers in “the case of the moldy washing machines” against three large corporations. Sears, Roebuck & Co. v. Butler, 13-430, Whirlpool v. Glazer, 13-431, and BSM Home Appliances v. Cobb, 13-138. Although a victory for consumers, the decision is arguably an anomaly amidst recent pro-business cases restricting plaintiffs’ class certification. See e.g., Comcast v. Berend, 133 S. Ct. 1426 (2013); AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011); Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). Multi-party litigation may well be changing, and the Akron Law Review seeks your contribution to the conversation.
Your contribution to this conversation will be both timely and visible. The Washington and Lee Law Review Rankings ranked the Akron Law Review as a top 55 general, student-edited journal (in combined score based on impact factor and citation). Additionally, Ohio Supreme Court Justices cited the Akron Law Review more times in the past decade than any other journal. See Jared Klaus, Law Reviews: An Undervalued Resource, 26 Ohio Lawyer, May/June 2012, at 28.
You may submit manuscripts by email or regular mail. To submit by email, please forward a copy of your article in Word format to email@example.com. You may submit a hardcopy to: Justin M. Burns, Editor-in-Chief, Akron Law Review, The University of Akron School of Law, 150 University Avenue, Akron, Ohio 44325. If you have any questions, please feel free to contact Justin Burns at firstname.lastname@example.org.
Wednesday, April 16, 2014
We covered earlier the agenda for the Civil Rules Advisory Committee’s April meeting, which took place in Portland, Oregon last week and was an important step for the recently proposed amendments to the Federal Rules of Civil Procedure. Bloomberg BNA’s U.S. Law Week has this report on the result of the meeting.
The Advisory Committee’s recommendations go next to the Standing Committee on the Rules of Practice and Procedure, which will meet in May.
Hat Tip: Tom Rowe
Tuesday, April 15, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Cy Pres in Class Action Settlements, which will be published in the Southern California Law Review. Here’s the abstract:
Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”
Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because its fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.
To minimize over-reliance on cy pres distributions and to tailor them to serve the best interests of the class, the Article makes four pragmatic recommendations. First, to align the interests of class counsel and the class, courts should presumptively reduce attorneys’ fees in cases in which cy pres distributions are made. Second, to ensure that class members and courts have the information they need to assess the fairness of a settlement that contemplates a cy pres distribution, class counsel should be required to make a series of disclosures when it presents the settlement for judicial approval. Third, to inject an element of adversarial conflict into the fairness hearing and to ensure that the court receives the information needed to scrutinize the proposed cy pres distribution, the court should appoint a devil’s advocate to oppose it. Finally, the court should be required to make written findings in connection with its review of any class action settlement that contemplates a cy pres distribution.
Jay Tidmarsh (Notre Dame) has posted Resurrecting Trial by Statistics to SSRN.
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.
After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a court conducts trials in a random sample of cases and averages the results, as in trial by statistics. It then presumptively applies the average award to all other cases, but, unlike trial by statistics, any party can reject the presumptive award in favor of individual trial. The Article describes the circumstances in which parties have an incentive to contest the presumption, and explores a series of real-world issues raised by this approach, including problems of outlier verdicts, strategic behavior by parties, and the parties’ risk preferences. It proposes ways to minimize these issues, including a requirement that the party who reject a presumptive judgment must pay both sides’ costs and attorneys’ fees at trial.
The Article concludes by showing that this approach is consonant with important procedural values such as efficiency, the accurate enforcement of individual rights, dignity, and autonomy.