Tuesday, January 3, 2017
Saturday, December 31, 2016
The New Year’s Eve moment everyone has been waiting for: Chief Justice Roberts’ 2016 Year-End Report on the Federal Judiciary.
The report emphasizes the work of federal district court judges, and there are several references to civil procedure – including the 2015 FRCP amendments that were the focus of last year’s report:
The judge is responsible for supervising the important pretrial process and conducting the trial itself. He resolves discovery disputes, manages the selection of the jury, rules on the admission of evidence, determines the proper and understandable instruction of the jury, and resolves any issues surrounding the acceptance of the verdict and entry of judgment. Each of those steps requires special knowledge, sensitivity, and skill. The judge must have mastery of the complex rules of procedure and evidence and be able to apply those rules to the nuances of a unique controversy.
* * *
As I explained in my 2015 Year-End Report, the Judicial Conference—the policy making body of the federal courts—has revised the Federal Rules of Civil Procedure to emphasize the judge’s role in early and effective case management. Those procedural reforms encourage district judges to meet promptly with the lawyers after the complaint is filed, confer about the needs of the case, develop a case management plan, and expedite resolution of pretrial discovery disputes. The reforms are beginning to have a positive effect because already extremely busy judges are willing to undertake more active engagement in managing their dockets, which will pay dividends down the road. A lumberjack saves time when he takes the time to sharpen his ax. This year, we will take a step further and ask district judges to participate in pilot programs to test several promising case management techniques aimed at reducing the costs of discovery.
Now I can return to revising my article, Toward a Lumberjack Theory of Procedure.
Thursday, December 29, 2016
It’s a “nonprecedential disposition,” but the Seventh Circuit’s decision last week in Couvillion v. Speedway LLC features an interesting exchange about summary judgment. The majority (Chief Judge Wood & Judge Easterbrook) affirms the lower court’s grant of summary judgment against a plaintiff who sued Speedway after she was injured while adding air to her tires at a Speedway service station. In the final paragraph, the court writes:
Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g., Countrymark Cooperative, Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. App. 2008) (“negligence cases are especially fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”) * * * . Maybe Indiana’s judiciary would have submitted Couvillion’s claim to a jury. But federal rules govern the allocation of tasks between judge and jury in federal court. See, e.g., Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment. We know from Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and other decisions, that federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court.
There are a couple of interesting points here. One is about the Erie doctrine. My personal view is that the interplay between FRCP 56 and state law is not quite so simple, and that a proper understanding might require a federal court adjudicating a state-law claim to follow state law on certain aspects of summary-judgment practice. [See What Is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)].
Another point—which Judge Sykes emphasizes in her dissent—has to do with the majority’s assertion that “In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment.” Judge Sykes writes in response:
Under Rule 56 (and in state practice), a judge may resolve the case by summary judgment only if there is no material factual dispute “and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (emphasis added); see also Ind. R. Trial P. 56(C). The historical facts are undisputed here, but it doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury determine Speedway’s liability unless on this record no reasonable jury could find a breach of duty under §§ 343 and 343A.
There would seem to be federalism dimensions with respect to this issue as well—is it by state or federal law that we decide whether the movant is “entitled to judgment as a matter of law”?
(H/T Raffi Melkonian)
Wednesday, December 28, 2016
Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:
This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.
This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.
This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.
Tuesday, December 27, 2016
Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).
Friday, December 23, 2016
Here is the first installment of “Just the Facts,” which was posted this week. From the introduction:
Just the Facts is a new feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to the data team.
(H/T: S.I. Strong)
Monday, December 19, 2016
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, Discovery Costs and Default Rules. Jay reviews a recent paper by Brian Fitzpatrick and Cameron Norris, One-Way Fee Shifting After Summary Judgment.
Wednesday, December 14, 2016
The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides .... " The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.
In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .
Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).
The question in this case is thus precisely the same as the issue decided in Fourco:
Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, December 13, 2016
Moshe Z. Marvit has published in the American Prospect magazine a piece entitled "Roberts Rules for Protecting Corporations." The summary is "The chief justice’s changes to the rules for litigation make suing big business a whole lot harder."
Shirin Sinnar has posted on SSRN a draft of her article, The Lost Story of Iqbal, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:
The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal. It first retells the story of Iqbal himself — the Pakistani immigrant and cable repair technician whom the opinion presented only categorically as a foreigner, a terrorist suspect, and, at best, a victim of abuse. Drawing on the author’s interview of Iqbal in Lahore, Pakistan, in 2016 and other available evidence, the Article reconstructs the facts of Iqbal’s immigrant life, his arrest and detention in the wake of the September 11 attacks, and the enduring consequences of being labeled a suspected terrorist. Second, the Article recounts the role of race and religion in the post-9/11 immigrant detentions, challenging the Court’s account of the detentions as supported by an “obvious” legitimate explanation. Juxtaposing the lost story of Iqbal and the detentions against the Court’s decision ultimately sheds light on the ability of procedural decisions to propagate particular normative visions and understandings of substantive law without the full recognition of legal audiences. Nearly fifteen years after the September 11 attacks and the ensuing mass detentions, Iqbal demands attention to its substance — to the profound questions of race, law, and security that have become even more urgent in the face of new calls for the exclusion of individuals on racial and religious grounds.
Monday, December 12, 2016
Today’s Supreme Court order list includes an order in FTS USA, LLC v. Monroe, granting certiorari, vacating, and remanding the case to the Sixth Circuit for further reconsideration in light of last Term’s decision in Tyson Foods v. Bouaphakeo. The FTS cert petition challenged the district court’s handling of a Fair Labor Standards Act (FLSA) collective action as violating the FLSA, the Due Process Clause, and the Seventh Amendment.
Thursday, December 8, 2016
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).
Below is a call for presentation proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference (University of Arkansas at Little Rock William H. Bowen School of Law, July 7-8, 2017). The deadline for submissions is Feb. 1, 2017.
Friday, December 2, 2016
In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:
Does the Hague Service Convention authorize service of process by mail?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Thursday, December 1, 2016
Wednesday, November 30, 2016
Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):
Tuesday, November 29, 2016
The NYU Law Review and the Center on Civil Justice are hosting a symposium entitled “Rule 23 @ 50” this Friday and Saturday. From the announcement:
This is a wonderful time to reflect on Rule 23 – what it was meant to do; whether it has met its promise; if not, why not, and what can be done to remedy the situation; and what is in store for the Rule going forward.
When: December 2–3, 2016.
Where: Vanderbilt Hall, 40 Washington Square South.
Panels will explore the history of the rule, its use in civil rights and mass tort cases, what the rule was meant to accomplish, whether it has done so, and if not, whether there are ways to fix the situation. There will be an oral history interview with Professor Arthur Miller, who was there at the creation of the rule. The conference will conclude with a judges’ roundtable moderated by Professor Miller.
Monday, November 28, 2016
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.
Friday, November 18, 2016
Yesterday the U.S. Supreme Court issued a summary disposition in two antitrust cases—Visa v. Osborn and Visa v. Stoumbos—for which it had earlier granted certiorari. Here’s the text of yesterday’s ruling:
These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.
Monday, November 14, 2016
Ed Cheng has posted on SSRN a draft of his article, Detection and Correction of Legal Publication Bias. Here’s the abstract:
Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.