Friday, February 24, 2017
Maria Glover has published A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017). Here’s the abstract:
Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”
This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.
Thursday, February 23, 2017
Paul Gugliuzza and Megan La Belle have posted on SSRN a draft of their article, The Patently Unexceptional Venue Statute, which will be published in the American University Law Review. Here’s the abstract:
Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct.
This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond.
This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation.
Wednesday, February 22, 2017
Simona Grossi has posted on SSRN a draft of her article, The Claim. Here’s the abstract:
I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.
I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.
My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.
Tuesday, February 21, 2017
Monday, February 20, 2017
Earlier we covered last month’s flurry of cert grants by the U.S. Supreme Court, including several cases raising interesting civil procedure and federal courts issues. Many of these, as well as some earlier cert grants, are now on the court’s March and April oral argument calendars:
Tuesday, March 21:
Wednesday, March 22:
Monday, March 27:
Monday, April 17:
- Perry v. Merit Systems Protection Board
- Town of Chester v. Laroe Estates
- California Public Employees Retirement System v. ANZ Securities
Tuesday, April 25:
This means that decisions in these cases will likely come down by the end of June.
Elizabeth Burch has recently published Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Here’s the abstract:
When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.
Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety may peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that may permit lead lawyers to act, at times, like a cartel.
Friday, February 17, 2017
Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House:
Fairness in Class Action Litigation Act
Bob Goodlatte (R-VA-6)
Furthering Asbestos Claim Transparency (FACT) Act
Blake Farenthold (R-TX-27)
Stop Settlement Slush Funds Act
Bob Goodlatte (R-VA-6)
Innocent Party Protection Act
Ken Buck (R-CO-4)
Lawsuit Abuse Reduction Act
Lamar Smith (R-TX-21)
We briefly described four of the bills here. The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.
Thursday, February 16, 2017
Simona Grossi (Loyola LA) has posted Frontloading, Class Actions, and a Proposal for a New Rule 23 to SSRN.
As we are celebrating the 50th anniversary of the modern class action Rule — the version adopted in 1966 — the Advisory Committee is working on further revisions of Rule 23, conferences on the topic are proliferating, and the Supreme Court and lower federal courts are trying to navigate the technicalities of the current Rule.
Several doctrines in the federal system have generated a frontloading trend, i.e., a trend that pushes the analysis of the merits of the claim to the very outset of the litigation, before discovery has taken place, ultimately resulting in a denial of justice. The current Rule 23 and its proposed amendments seem to follow the same trend. In the article, I unearth the frontloading trend, show how and to what extent Rule 23 and its interpretation is part of it, and propose a new Rule 23, one designed to promote the underlying litigation principles the original Rule was meant to advance.
I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s Papers that are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. Clark’s Papers contain Clark’s thoughts, notes, sketches, ideas on the federal rules and the federal system he was designing, his philosophy of legal analysis and judicial decisionmaking. Clark’s clear procedural vision has produced Rules that have lasted, almost untouched, for almost 80 years. Inspired by Clark’s vision and ideas, my paper articulates a theory of class actions that is truthful to the design of the original Federal Rules, and proposes a new class action rule that is consistent with that theory and with Clark’s original vision for the rules.
Theodore Eisenberg (deceased), Geoffrey Miller, and Roy Germano have posted on SSRN their paper Attorneys' Fees in Class Actions: 2009-2013, a follow-up to earlier studies.
We study attorney fee awards in 458 class action settlements reported in the five years from 2009-2013. Despite the financial crisis and its many effects on our national life, little has changed in class action attorneys’ fees. Average percentage fees are in line with prior studies. The key determinant of the fee continues to be the size of the class recovery: the amazingly regular relationship between these variables continues in the present data. We continue to find a “scaling” effect, in the sense that fees as a percentage of the recovery decrease as the size of the recovery increases. As in the previous Eisenberg-Miller studies, we find that fees are a function of risk – larger fees in higher-risk cases – although in the most recent data the effect is only weakly statistically significant. We document an inverse relationship between the percentage fee and the lodestar multiplier: cases with lower percentage fees are associated with higher multipliers. Likewise lodestar multipliers tend to rise with the size of class recovery.
Monday, February 13, 2017
While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts
Four bills have been introduced in Congress that would limit plaintiffs' access to the courts. The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates.
1. Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.
This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers.
The major provisions of the bill with respect to class actions are (this is not an exhaustive list):
Thursday, February 9, 2017
Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:
- Yes to appellate jurisdiction
- Yes to Article III standing for Washington and Minnesota
- No to the federal government’s request to narrow the TRO
Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:
Friday, February 3, 2017
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, Eight Is Enough. Howard reviews Eric Segall’s article, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court.
Wednesday, February 1, 2017
In what is beginning to feel like the Groundhog Day of civil procedure bills, LARA has been reintroduced in the Senate and the House for the umpteenth (I think the fifth) time. Although the text of the bills is not yet available, they are likely to be the same as the last version, which was described on this blog here. Essentially, the bills would amend Rule 11 of the Federal Rules of Civil Procedure to eliminate the 21-day "safe harbor" and to make sanctions mandatory instead of discretionary if a violation is found.
The press release by Senator Grassley, one of the co-sponsors of the bill in the Senate, is a rehash of all the alternative facts repeated for years by defendants to discredit civil litigation.
The Advisory Committee, however, knows that there are not "thousands of frivolous lawsuits" in our federal courts and would be unlikely to amend Rule 11 based upon that falsehood. I assume that is one reason the bills propose an end run around the Rules Enabling Act process.
Tuesday, January 31, 2017
Jonathan Remy Nash (Emory) has posted Sovereign Preemption State Standing to SSRN.
When does a state have standing to challenge the executive branch’s alleged under-enforcement of federal law? The issue took on importance during the Obama administration, with “red states” suing the executive branch over numerous issues, including immigration and health care. The question of standing looks to remain critical during the Trump administration, only with the political orientation of the actors reversed.
This Article argues in favor of sovereign preemption standing, under which a state would enjoy Article III standing to sue the federal government when (i) the federal government preempts state law, yet (ii) the executive branch allegedly under-enforces the federal law that Congress enacted to fill the regulatory gap to which the preemption gave rise. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury — that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the executive branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry.
The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state-federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Alternatively, sovereign preemption state standing also can be construed somewhat more broadly so that it applies not only to the setting of executive branch under-enforcement, but to the setting of horizontal federal disagreement in general — i.e., to the setting of executive branch over-enforcement as well.
Nick Parrillo has posted on SSRN a draft of his article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power. Here’s the abstract:
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years.
These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply?
What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent.
Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.
Sunday, January 29, 2017
Yesterday several legal challenges to Trump’s Executive Orders were filed. If you want to keep track of the various filings and orders as these cases proceed, the University of Michigan’s Civil Rights Litigation Clearinghouse is collecting them here.
Saturday, January 28, 2017
Here is the complaint in Darweesh v. Trump, which was filed early this morning in U.S. District Court for the Eastern District of New York:
Some coverage of the case:
Thursday, January 26, 2017
Recent lawsuits against Donald Trump may end up raising some interesting civil procedure and federal courts issues. Here are some documents and reports relating to pending litigation:
CREW v. Trump
(This is the Emoluments Clause challenge filed Monday in the U.S. District Court for the Southern District of New York)
- Jonathan Adler (Washington Post, 1/23/2017)
- Michael Dorf (Dorf on Law, 1/24/2017)
- Chris Geidner (BuzzFeed, 1/22/2017)
- Eric Lipton & Adam Liptak (NY Times, 1/22/2017)
- Eric Segall (LA Times, 1/25/2017)
- Jim Zarroli (NPR, 1/26/2017)
Zervos v. Trump
(Defamation action against Trump in New York State Court)
- Michael Dorf (Dorf on Law, 1/19/2017)
- Rosalind Helderman (Washington Post, 1/17/2017)
- Megan Twohey (NY Times, 1/17/2017)
AES Electrical v. Trump Old Post Office LLC
(This case was filed yesterday in D.C. Superior Court by an electrical contractor that claims it wasn’t paid for $2 million worth of work on Trump’s DC hotel.)