Tuesday, July 31, 2018

Malveaux on Civil Rights and the Modern Class Action Rule

Suzette Malveaux has published The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 U. Kan. L. Rev. 325 (2017). Here’s the abstract:

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.

Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.

Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.

 

 

 

July 31, 2018 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, July 30, 2018

Gelbach & Marcus on Federal Court Review of High Volume Agency Adjudication

Jonah Gelbach & Dave Marcus have published Rethinking Judicial Review of High Volume Agency Adjudication, 96 Tex. L. Rev. 1097 (2018). Here’s the abstract:

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief—the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.” These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.

This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument builds on a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly and a court system attempting to help this agency improve.

 

 

 

July 30, 2018 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Friday, July 27, 2018

Ninth Circuit grants en banc review in important class action case

Earlier this year the Ninth Circuit issued a 2-1 decision in In re Hyundai and Kia Fuel Economy Litigation. The panel reversed the district court’s certification of a settlement class involving claims against Hyundai and Kia over their vehicles’ fuel efficiency. The decision was particularly controversial because of the majority’s choice-of-law analysis and its potential impact on certifying nationwide classes.

Today the full Ninth Circuit granted en banc rehearing.

Download Hyundai En Banc Order (9th Cir)

Oral argument is scheduled for the week of September 24, 2018.

 

 

July 27, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, July 26, 2018

SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census

Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:

Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.

In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.

Download SDNY Opinion and Order 07-26-2018

 

 

 

July 26, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Yesterday’s Eleventh Circuit Decision in Lewis v. Governor of Alabama

In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:

For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.

The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:

Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.

 

 

 

July 26, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, July 25, 2018

Nevada Law Journal Symposium Issue: "Re-Inventing Arbitration"

The Nevada Law Journal has published the articles from its recent symposium, Reinventing Arbitration. You can find them all here.

 

 

July 25, 2018 in Recent Scholarship | Permalink | Comments (0)

Monday, July 23, 2018

Murphy on the Formation of the Federal Class Action Rule

Rye Murphy has published Competing Ideologies at the Formation of the Federal Class Action Rule: Legal Process Versus Legal Liberalism, 10 Drexel L. Rev. 389 (2018). Here’s the abstract:

In 1966, the Supreme Court promulgated a new procedural rule for class actions in federal court. Amended Rule 23 was a considerably different mechanism than its predecessor. It was more inviting of class action litigation but also incorporated new mechanisms for protecting class members. This was not an unreasonable trade-off, and one can imagine a group of rule-makers—elite academics, federal judges, prestigious attorneys—peaceably striving to write a rule that could balance individual class members’ interests with the interests of the class as a whole. But this is not what happened. The Rule 23 of today is an accord between two rival sects of mid-century legal thinking. The Legal Process tradition considered federal courts one of many institutions in society for mediating conflict, though the one uniquely capable of employing neutral reasoning to do so. Harvard Law School professors Benjamin Kaplan and Albert Sacks argued that a flexible, robust class action rule was needed to solve the complex, large-scale problems American society was increasingly facing. Attorney John P. Frank, a litigator and civil libertarian, fought vigorously against anything but the narrowest rule. Legal liberalism, Frank’s camp, tended to view federal courts in their capacity to enforce substantive principles, and Frank argued that the Constitution and American legal tradition forbade a rule that might deprive an individual of the opportunity to litigate her own interests. It was a duty of the rule-maker, for Frank, not to enact a rule that would violate what he identified as a principle of individualized adjudication. The balance the current rule strikes, including the opt-out mechanism, is a product of their compromise.

 

 

 

July 23, 2018 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Friday, July 20, 2018

Kagan, Gill & Marouf on Invisible Appellate Adjudication

Michael Kagan, Rebecca Gill & Fatma Marouf have published Invisible Adjudication in the U.S. Courts of Appeals, 106 Geo. L.J. 683 (2018). Here’s the abstract:

Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many—and in a few circuits, most—decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system.

 

July 20, 2018 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Thursday, July 19, 2018

Shapiro on Delegating Procedure

Matthew Shapiro has published Delegating Procedure, 118 Colum. L. Rev. 983 (2018). Here’s the abstract:

The rise of arbitration has been one of the most significant develop­ments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.

This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to sub­poenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.

Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbi­tration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.

 

 

 

July 19, 2018 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, July 18, 2018

Sixth Circuit weighs in on FRCP 23(c)(4) issue classes

This week the Sixth Circuit decided Martin v. Behr Dayton Thermal Products, affirming the district court’s decision to certify various issues for class treatment under Rule 23(c)(4). The court sided with what it called “the broad view” of the relationship between Rule 23(b)(3)’s requirements and issue class actions under Rule 23(c)(4). From Judge Stranch’s opinion:

Under what is known as the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment under Rule 23(c)(4). The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.

After reviewing the circuit split over this question, the opinion concludes:

In sum, Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution. See Nassau, 461 F.3d at 226; Fed. R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend. A requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. The broad approach is the proper reading of Rule 23, in light of the goals of that rule.

 

 

 

July 18, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, July 12, 2018

Wasserman on Mitchell on the Writ-of-Erasure Fallacy

Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, A Step Toward a Proper Understanding of Constitutional Litigation. Howard reviews Jonathan Mitchell’s recent article, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018).

 

 

July 12, 2018 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, June 29, 2018

SCOTUS Cert Grant in Franchise Tax Board of California v. Hyatt III

It may have been lost in all of the news surrounding Justice Kennedy’s retirement, but yesterday the Supreme Court granted certiorari in Franchise Tax Board of California v. Hyatt, which presents the question:

“Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.”

This is the case’s third trip to the Supreme Court.

You can follow the merits briefs as they come in at SCOTUSblog and at the Supreme Court’s website.

 

 

 

June 29, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, June 26, 2018

Some Interesting SCOTUS Cert Grants

Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:

Sudan v. Harrison presents the question:

Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

[You can follow the Sudan merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

Nutraceutical Corp. v. Lambert presents the question:

Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).

The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?

[You can follow the Neutraceutical merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:

Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

[You can follow the Henry Schein merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

 

 

 

 

 

June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 21, 2018

Swan on cities as plaintiffs

Sarah Swan has published Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018). Here’s the abstract:

When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities.

Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.

 

 

 

 

June 21, 2018 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Sunday, June 17, 2018

Singer on Rosen on William Howard Taft

Now on the Courts Law section of JOTWELL is Jordy Singer’s essay, Hail to the Chief Justice. Jordy reviews Jeffrey Rosen’s recent book, William Howard Taft.

 

 

June 17, 2018 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, June 14, 2018

SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law

Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:

When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).

We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.

[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]

 

 

 

June 14, 2018 in Federal Rules of Civil Procedure, International/Comparative Law, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Monday, June 11, 2018

SCOTUS decision in China Agritech v. Resh: American Pipe tolling and subsequent class actions

Today the Supreme Court issued its decision in China Agritech, Inc. v. Resh (covered earlier here). Justice Ginsburg authored the Court’s opinion, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. From the introduction:

This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The Court held in American Pipe that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class-action status has been denied, the Court further ruled, members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. See id., at 544, 552–553. Later, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), the Court clarified American Pipe’s tolling rule: The rule is not dependent on intervening in or joining an existing suit; it applies as well to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene . . . once the economies of a class action [are] no longer available.” 462 U. S., at 350, 353–354 * * * .

The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limi­tations? Our answer is no. American Pipe tolls the stat­ute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.

The opinion concludes:

The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of Amer­ican Pipe.

Justice Sotomayor wrote a concurring opinion, which begins:

I agree with the Court that in cases governed by the Private Securities Litigation Reform Act of 1995 (PSLRA),15 U. S. C. §78u–4, like this one, a plaintiff who seeks to bring a successive class action may not rely on the tolling rule established by American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). I cannot, however, join the majority in going further by holding that the same is true for class actions not subject to the PSLRA.

 

 

 

 

June 11, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, June 8, 2018

Marcus on the Second Era of the Modern Class Action (1981-1994)

Dave Marcus has published The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981-1994, 86 Fordham L. Rev. 1785 (2018). Here’s the abstract:

The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated.

This Article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device.

Below this surface tranquility lurked important developments in what the class action, newly embroiled in fundamental debates over litigation and legitimacy, was understood to implicate. Critics castigated the civil rights class action as an emblem of the “imperial judiciary’s” rise and of courts’ inability to separate law from politics. To industries targeted by plaintiffs’ lawyers, the securities fraud class action exemplified the “litigation explosion” and challenged judicial competence to screen for meritorious lawsuits. The emergence of the mass tort class action as an alternative to legislative and administrative processes made a determination of litigation’s legitimate role particularly urgent.

These second-era episodes deepened partisan divides over the class action and prompted new claims about what sort of private litigation could legitimately proceed. The three episodes drew new and influential participants into fights over the class action, and they eventually reengaged policymakers with class action regulation. Such developments made an era of significant reform all but inevitable.

June 8, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, June 7, 2018

Solberg & Diascro on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation

Rorie Spill Solberg (Oregon State Univ., Department of Political Science, School of Public Policy) and Jennifer Segal Diascro (University of California Washington Program (UCDC)) have published an article entitled "A Retrospective on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation" in the Journal of Politics, Groups, and Identities.  Here's the abstract: 

"Despite abundant attention to the judicial selection of U.S. Supreme Court justices, most federal legal disputes are resolved in the lower federal courts. Who the judges are and how they make their decisions matters enormously in a democracy that values the fair and equitable treatment of its citizens under the rule of law. Our focus in this study is on the demographic diversity of President Obama’s appointments to the lower federal bench. It is clear from the various methods of examining the numbers that Obama valued diversity – perhaps more so than any previous president. When we examine all lower courts in the aggregate, and then district and circuit courts separately, the total number of successful nominees, the replacement patterns for departing judges, and comparisons between active and senior status judges, we see a concerted and largely successful effort to increase symbolic representation on the federal judiciary. Under different political circumstances, the data would lead us to consider novel complexities in diversifying the federal bench in the next several years. But a Trump presidency and its expected focus on ideology over diversity is likely to lead the study of judicial selection in a different direction, at least for the time being."

June 7, 2018 in Current Affairs, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Strong on International Due Process and Procedural Jus Cogens

S.I. Strong has published General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn. St. L. Rev. 347 (2018). Here’s the abstract:

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law.

The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope, and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights, and the rule of law.

The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.

The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics, and practitioners in the United States and abroad and offers groundbreaking insights into the nature of international procedural rights.

 

 

 

 

June 7, 2018 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)