Saturday, January 2, 2016
Last year, I complained that the Chief Justice’s Year-End Report for the federal judiciary was irrelevant to real-world concerns. This year, I cannot complain about Year-End Report's relevance; it focuses mainly on the recently-effective amendments to the Federal Rules of Civil Procedure. But I can complain, a lot, about the Report’s lack of candor.
As been his custom for these year-end reports, the Chief Justice opens with a dull, lengthy historical reference. Last year it was the Supreme Court's 1935 installation of a pneumatic tube system; this year it’s a dueling book. The Chief Justice talks about a 22-page booklet published in 1838 setting forth detailed rules on dueling. The dueling rules, he says, were supposed to “ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—[and thus] would in fact save lives.” But alas, the code “had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.” Three decades later, “[p]ublic opinion ultimately turned against dueling as a means of settling quarrels.”
Somehow, this is supposed to relate to the recent amendments to the federal rules. The implication seems to be that civil discovery today is like dueling, and the new amendments will civilize the barbarism.
The dueling analogy isn’t clear to me. If an elaboration of dueling rules led to increased killing, then the elaboration of the federal discovery rules will lead to . . . what? More lawsuits being killed? And if “public opinion” ultimately turned against duels, does that mean public opinion should turn even further against plaintiffs who bring civil lawsuits?
Setting aside the baffling dueling rulebook analogy, the Report continues with a paean to the process by which the rules are amended. Federal procedural rules such as the recent amendments, enthuses the Chief Justice, “are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large.” But the “primary work” of rules amendments, he explains, is done through the Advisory Committee and the Standing Committee.
The Chief Justice’s characterization of the rules amendment process is meant to imply that the process ensures a national consensus and an impartial solution that will affect all litigants equally. But these suggested implications are false.
Here’s the dirty underside of the rules amendment process. What the Chief Justice doesn’t mention is that he has the sole, unfettered power to appoint the members of the Advisory Committee, the Standing Committee, and the members of all the other federal rules committees. And he has exercised this power to appoint committee members who are predisposed to favor restrictions on discovery. For example, at the time these rules amendments were adopted, seven of the eight federal judges on the Standing Committee were appointed by George W. Bush. As for the Civil Rules Advisory Committee, I wrote recently, “thirteen of the fifteen members of the Advisory Committee had at least one of the following characteristics: they were appointed by a Republican president, clerked for a Republican-appointed Supreme Court justice, work or worked for a defense-oriented, large corporate law firm, and/or are affiliated with the Federalist Society or Lawyers for Civil Justice.”
Thursday, December 31, 2015
As if New Year’s Eve wasn’t exciting enough, Chief Justice Roberts has released his 2015 Year-End Report on the Federal Judiciary. He emphasizes the recent amendments to the Federal Rules of Civil Procedure (prefaced by a two-page wind-up about 19th-century dueling practices).
Tuesday, December 29, 2015
Lewis & Clark Law Review has just published a symposium on personal jurisdiction that contains ten articles and essays;
19 Lewis & Clark L. Rev. 593 (2015)
John T. Parry
19 Lewis & Clark L. Rev. 607 (2015)
A SHIFTING EQUILIBRIUM: PERSONAL JURISDICTION, TRANSNATIONAL LITIGATION, AND THE PROBLEM OF NONPARTIES
Cassandra Burke Robertson and Charles W. “Rocky” Rhodes
19 Lewis & Clark L. Rev. 643 (2015)
THE END OF ANOTHER ERA: REFLECTIONS ON DAIMLER AND ITS IMPLICATIONS FOR JUDICIAL JURISDICTION IN THE UNITED STATES
Linda J. Silberman
19 Lewis & Clark L. Rev. 675 (2015)
19 Lewis & Clark L. Rev. 693 (2015)
19 Lewis & Clark L. Rev. 713 (2015)
PERSONAL JURISDICTION FOR ALLEGED INTENTIONAL OR NEGLIGENT EFFECTS, MATCHED TO FORUM REGULATORY INTEREST
Stanley E. Cox
19 Lewis & Clark L. Rev. 725 (2015)
Julie Cromer Young
19 Lewis & Clark L. Rev. 753 (2015)
REORIENTING PERSONAL JURISDICTION DOCTRINE AROUND HORIZONTAL FEDERALISM RATHER THAN LIBERTY AFTER WALDEN v. FIORE
19 Lewis & Clark L. Rev. 769 (2015)
19 Lewis & Clark L. Rev. 791 (2015)
THE OTHER SIDE OF THE RABBIT HOLE: RECONCILING RECENT SUPREME COURT PERSONAL JURISDICTION JURISPRUDENCE WITH JURISDICTION TO TERMINATE PARENTAL RIGHTS
Joan M. Shaughnessy
19 Lewis & Clark L. Rev. 811 (2015)
Hat tip: John Parry
The Veterans Law Review, an online journal publishing in the area of Veterans’ law and jurisprudence, is now accepting submissions for consideration of publication in Volume 8. The submissions cycle for Volume 8 will close on January 31, 2016; until that date, writings may be submitted through Scholastica or ExpressO, or may be sent directly to the Editorial Board via the email below. The Veterans Law Review actively encourages Veterans’ service organizations, Veterans, and those working on Veterans’ issues to submit original legal writings for consideration for publication. Manuscripts should be typed and double-spaced in Microsoft Word, Times New Roman 12-point font, and should conform to the current edition of the Blue Book: A Uniform System of Citation. The editors review each manuscript for scholarly merit, clarity, and accuracy and will notify authors of any substantive changes. Authors are invited to discuss potential submissions with the current Veterans Law Review Editorial Board via email at BVAVeteransLawReviewEditor@va.gov.
Friday, December 18, 2015
The Annual Meeting of the Association of American Law Schools will be held Wednesday, January 6 to Sunday, January 10, 2016 at the New York Hilton Midtown and Sheraton New York Times Square Hotel, New York City.
Programs sponsored by the Civil Procedure Section and/or the Litigation Section are:
Friday, January 8, 2016
10:30 to 12:15
Discussion of Potential Class Action Reforms with the Advisory Committee on Civil Rules.
Friday, January 8, 2016
1:30 to 3:15
The Pedagogy of Procedure: Using Civil Procedure to Showcase Innovative Teaching Methods.
Saturday, January 9, 2016
10:30 to 12:15
Reforming the Hearsay Rule and Its Exceptions
Saturday, January 9, 2016
1:30 to 3:15
Does Evidence Still Matter?
For more information, see the program schedule.
Wednesday, December 16, 2015
An interesting opinion by U.S. District Judge William G. Young:
- provides a definition of “coupons” as used in the Class Action Fairness Act;
- makes sense of the “poorly drafted” CAFA provision regulating attorneys’ fees in so-called coupon settlements; and
- incidentally speculates on the relationship between MDL case assignment, the potential loss of judgeships in a district, and the strictness of a district judge’s scrutiny of attorneys’ fees in class action settlements.
Tyler v. Michaels Stores, Inc., No. CV 11-10920-WGY, 2015 WL 8484421 (D. Mass. Dec. 9, 2015).
This class action, based on Massachusetts consumer law, alleged that Michaels “asked customers for their zip codes as part of credit card transactions to reverse engineer those customers' addresses using commercially available databases, and then used those addresses to carry out aggressive and unwanted marketing campaigns.” [Internal quotation marks omitted.] After Michaels moved to dismiss, the federal court certified legal questions to the Supreme Judicial Court of Massachusetts, which held plaintiffs’ allegations sufficient under state law.
After discovery, the parties settled and the court approved the settlement, reserving a ruling on class counsel’s request for fees. Under the settlement, class members were to receive a $10.00 or $25.00 “voucher” to be used on any merchandise in Michaels’ physical stores, with certain restrictions on use. The face value of the vouchers was $418,000.00. The value of the vouchers actually redeemed by class members was $138,620.00.
Class counsel requested fees and costs of $425,000.00, asserting that Massachusetts law, not CAFA, governed the fees request because the vouchers were not “coupons” as used in CAFA, 28 U.S.C. § 1712, which applies to settlements that “provide for a recovery of coupons to a class member.” Surprisingly, CAFA does not define “coupon.” Surveying other cases, the Court “essay[ed] such a definition: when class members must transact business with the defendant to obtain the benefit of the settlement, the settlement ‘provides for a recovery of coupons’ under section 1712. In other words, coupons must be redeemed; conversely, if an award must be redeemed, it is a coupon.” Under that definition, the Michaels vouchers were coupons, and section 1712 applied to the fees request.
That didn’t settle the matter, however, because section 1712 is bewilderingly drafted. (I won’t reprint it here: just read subsections (a), (b), and (c), if you dare, and see if you can decipher them.) Again after surveying other cases, the Court held that even in a coupon-only settlement, section 1712 “vests the Court with the discretion to choose between using a percentage-of-coupons-redeemed method, or the lodestar method.”
Here, the Court chose the lodestar method (attorney hours worked times hourly fee) for two reasons: “[f]irst, class counsel vindicated the important public policy goals of Massachusetts' consumer protection statute,” and “[s]econd, and most importantly, they obtained binding precedent from the Supreme Judicial Court that will influence conduct far beyond that of Michaels.” However, the Court warned:
Given the hostility to disproportionately large fee awards to class counsel evident in the legislative history -- at least insofar as fees generated from obtaining coupon settlements were concerned -- counsel may reasonably expect that this Court will generally award attorneys' fees based on a percentage of the actual value of the coupons redeemed by class members, absent the groundbreaking nature of this case.
The Court found that the requested hourly fee of $650.00 for partners was unreasonable, and cut it to $350.00. This yielded a lodestar of $312,895.00 in attorneys’ fees, which was awarded along with $14,005.30 in costs.
In other words, the fees award, even though reduced from what was requested, still ended up being more than twice as much as the value of the vouchers actually redeemed by class members. Personally, I have no problem with that: in my opinion, the primary purpose of the consumer class action is not to compensate the plaintiff class, but to hold the defendant accountable for violating the law. Others obviously disagree.
Here’s where the Court’s two-page footnote 29 comes in. The Court’s point appears to be this: at least one pro-business advocacy group has argued to the Judicial Panel on Multidistrict Litigation that the Panel’s decision where to send an MDL should “rest on a district judge’s strict scrutiny of claims for attorneys’ fees in class action settlements.” In other words, business interests have argued that the more strictly a district judge scrutinizes fees requests, the more that judge should be favored as the transferee court in an MDL. But why should judges want to be the transferee court in an MDL? Because all of those transferred cases will now be counted as part of that judge’s, and that district’s, civil caseload. (When a civil case is filed in one district, and transferred to another district for whatever reason, including MDL, it is counted as a filing in both the transferor and the transferee court. So, for example, if the Panel transfers 5,000 MDL cases to another district, the transferee district gets 5,000 cases added to its total filings.) This accrual of cases “tend[s] to immunize that court against the potential loss of a judgeship,” because recommendations by the Judicial Conference to add or subtract authorized district court judgeships are based in part on the number of case filings that district has.
So the Court in Tyler candidly “confess[ed] that, when awarding attorneys' fees in this case, it contemplated -- but rejected as wholly inappropriate -- an additional consideration: the views of the Judicial Panel on Multidistrict Litigation.”
Tuesday, December 15, 2015
The Institute for Law Teaching and Learning (of the law schools of Gonzaga, Washburn, and Arkansas-Little Rock) has issued a Call for Presentation Proposals for its Summer 2016 conference on Real-World Readiness.
The conference will take place at Washburn University School of Law in Topeka, Kansas, from June 9-11, 2016. Further information is available on the website.
Monday, December 14, 2015
SCOTUS Decision in DIRECTV v. Imburgia: Federal Arbitration Act Overrides State Contract Law (Again)
Today the Supreme Court issued its decision in DIRECTV, Inc. v. Imburgia. The vote was 6-3, with Justice Breyer writing the majority opinion. Justice Thomas writes a dissenting opinion, and Justice Ginsburg writes a dissenting opinion joined by Justice Sotomayor.
As covered earlier here and here, Imburgia is another case involving the Federal Arbitration Act (FAA). The particular issue is whether the FAA allows California to construe an arbitration provision referring to California state law (the “law of your state”) to mean state law as it existed prior to the U.S. Supreme Court invalidating certain aspects of California contract law in its 2011 decision in AT&T Mobility LLC v. Concepcion. That was how the California Court of Appeal construed the arbitration agreement in Imburgia, but Justice Breyer’s majority opinion disagrees, concluding instead that such a construction itself violates the FAA by failing to “place arbitration contracts on equal footing with all other contracts.”
Three new articles recently posted on SSRN:
1. Christopher Beauchamp (Brooklyn Law School) has posted The First Patent Litigation Explosion, forthcoming in Yale Law Journal.
The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of today’s leading “trolls.” In 1850, New York City and Philadelphia alone had ten times more patent litigation, per U.S. patent in force, than the entire United States in 2013. Even the absolute quantity of late-nineteenth-century patent cases bears comparison to the numbers filed in recent years: the Southern District of New York in 1880 would have ranked third on the list of districts with the most patent infringement suits filed in 2014 and would have headed the list as recently as 2010.
This Article reveals the forgotten history of the first patent litigation explosion. It first describes the rise of large-scale patent enforcement in the middle of the nineteenth century. It then draws on new data from the archives of two leading federal courts to trace the development of patent litigation from 1840 to 1910 and to outline the scale, composition, and leading causes of the litigation boom. Finally, the Article explores the consequences of this phenomenon for the law and politics of the patent system. The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law’s crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. Recovering the history of patent law during this formative and turbulent era offers fresh perspectives on the patent reform debates of today.
2. Lee Epstein (Washington University in St. Louis School of Law) and Eric A. Posner (University of Chicago Law School) have posted Supreme Court Justices' Loyalty to the President.
A statistical analysis of voting by Supreme Court justices from 1937-2014 provides evidence of a “loyalty effect”—justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.
3. Bradley Wendel (Cornell University School of Law) has posted Litigation Trolls (NYU Law School Center on Civil Justice Symposium on "Litigation Funding: The Basics and Beyond").
Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are permitted to have an economic interest in the outcome of the litigation. On one view, therefore, third-party litigation investment is just another innovative financial product that enables risk to be carved up and allocated more efficiently. Life insurance, attorney contingent fees, and derivative contracts on exchange-traded commodities were all formerly regarded with extreme suspicion, but are now widely accepted. But people still hate patent trolls. So whether litigation funding is some kind of conceptual anomaly is an important question because, as it happens, Posner’s dictum coincides with a public-relations campaign by the U.S. Chamber of Commerce to stigmatize third-party litigation financing and saddle the industry with new and burdensome regulations. This short paper evaluates the conceptual critique of litigation financing by comparison with two other areas in which it is claimed that some form of financing “just doesn’t sit right” in light of the nature and function of the legal system – patent trolling and contributions to judicial election campaigns.
Sunday, December 13, 2015
Paula Hannaford Agor, Scott E. Graves, and Shelley Spacek Miller, all of the National Center for State Courts, have published on SSRN their study, The Landscape of Civil Litigation in State Courts.
The Landscape of Civil Litigation of State Courts examined case characteristics and outcomes for civil cases disposed during a one-year interval from all courts exercising jurisdiction over civil cases in 10 urban counties in the United States. This report is the first significant multi-jurisdiction study of civil caseloads since the 1992 Civil Justice Survey of State Courts, and is more comprehensive than the 1992 study insofar that it examined the entire civil caseload rather than just cases filed in general jurisdiction courts. The Landscape dataset consisted of 925,344 cases, which reflects approximately 5% of civil caseloads nationally.
Key findings: more than half of the Landscape cases were low-value debt collection, landlord/tenant, and small claims cases; three-quarters of the judgments entered in the Landscape cases were $5,200 or less; most cases were resolved through an administrative process rather than an adversarial proceeding; and at least one party was self-represented in more than three-quarters of the cases. These findings offer a dramatically changed picture of civil caseloads compared to two decades ago and to perceptions held by many civil trial lawyers and judges.
Wednesday, December 2, 2015
Over at PrawfsBlawg, Jessica Berch reported on the announcement by the National Conference of Bar Examiners that the earliest that the latest FRCP amendments would be tested would be the July 2016 Multistate Bar Examination and Multistate Essay Examinations.
To mark the effective date of the latest FRCP amendments, the American Constitution Society's blog posted a short piece by Professor Suja A. Thomas entitled Duke Law and the New Discovery Proportionality Rule.
The piece describes the controversy surrounding the Duke Center for Judicial Studies’ so-called "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality," which we covered earlier here.
Professor Alexander Reinert's empirical study of Iqbal, entitled Measuring the Impact of Plausibility Pleading, has now been published in 101 Va. L. Rev. 2117 (2015). Professor Reinert earlier posted the article on SSRN.
In the United States, modern civil procedure began in 1938 with the promulgation of the Federal Rules of Civil Procedure. From then, until very recently, the notice pleading standard – emphasizing simplicity and brevity in pleadings over technicality – was held up as an example of the Rule’s commitment to adjudicating the merits of every claim and avoiding premature and wasteful disputes that often had little to do with merits. In Bell Atlantic v. Twombly and Ashcroft v. Iqbal, announced in 2007 and 2009, the United States Supreme Court revisited the notice pleading standard, announcing that “plausibility pleading” must now be the standard for assessing whether a complaint’s allegations are sufficient to justify moving to discovery and merits adjudication. This Article offers a comprehensive analysis of the impact of the plausibility pleading standard on resolutions of motions to dismiss in almost 4200 cases from 15 different judicial districts, representing all 12 general jurisdiction circuit courts of appeal. Relying on data obtained from all published and unpublished opinions in these districts for the years 2006 and 2010, this study provides the most detailed analysis to date of the impact that plausibility pleading and other variables have had on the resolutions of motions to dismiss in civil cases.
The data reported here suggest that many prior studies have failed adequately to capture the full impact of Iqbal and Twombly on the resolution of motions to dismiss in federal court. First, this Article provides data showing that dismissals of employment discrimination and civil rights cases have risen significantly in the wake of Iqbal. These results remained significant even after controlling for potential confounding factors. Second, the data also suggest that certain factors interact with the plausibility standard to influence the resolution of a motion to dismiss, including perhaps most importantly the institutional status of the plaintiff and defendant. Individuals have fared poorly under the plausibility regime, at least when compared to corporate and governmental agents and entities. These effects remained significant even after controlling for several potentially confounding variables. Finally, by analyzing data on the progress of cases after a motion to dismiss has been adjudicated, this Article shows that the advent of heightened pleading has not resulted in higher quality claims.
Along with providing an important descriptive account of the impact that plausibility pleading has had on the course of federal litigation, this Article suggests two heretofore unexplored bases for questioning the wisdom of the transition initiated by Twombly and solidified by Iqbal. First, while one should not be shocked by the observation that civil rights and employment discrimination claims suffer under the plausibility pleading regime, one should still be troubled by it given the historical role that federal courts have played in such cases. Second, to the extent that the plausibility regime has exacerbated inequality in the courts between individual litigants on one hand and corporate and governmental entities on the other, without increasing overall case quality, there should be wider agreement that such a change is to be lamented.
Tuesday, December 1, 2015
Today the Supreme Court issued its first opinion in an argued case this Term: OBB Personenverkehr AG v. Sachs. In an opinion by Chief Justice Roberts, the Court unanimously held that a lawsuit against the Austrian state-owned railway was barred by Foreign Sovereign Immunities Act. From the opinion:
Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity.
Our earlier coverage is here.
Monday, November 30, 2015
In another recent essay on Spokeo, Inc. v. Robins (see also here and here), Professor Joan E. Steinman (IIT-Chicago-Kent College of Law) has posted on SSRN her article, Spokeo, Where Shalt Thou Stand? This article is forthcoming in Vanderbilt Law Review, Vol. 68 (2015).
Professor F. Andrew Hessick (University of Utah - S.J. Quinney School of Law) has posted on SSRN his article, "Understanding Standing." The article is forthcoming in Vanderbilt Law Review En Banc.
Spokeo, Inc. v. Robins, which is before the Supreme Court this term, poses a fundamental question of Article III standing: Does a person have standing to sue to seek redress for the violation of a substantive statutory right, even if he did not suffer any factual harm from the violation of that right?
Standing is one of the doctrines that define the power of the federal judiciary. Federal courts cannot hear all disputes. Instead, Article III authorizes them to resolve only “cases” and “controversies.” The Supreme Court has interpreted those terms to authorize federal courts to resolve only those disputes that were “traditionally amenable to, and resolved by, the judicial process.” This restriction, the Court has said, is critical to maintaining the separation of powers. According to the Court, standing enforces these limits on the judicial power.
Despite standing’s importance to maintaining the federal judiciary’s proper role in the federal government, the Court has been inconsistent on what a plaintiff must show to establish standing. Some cases say that the violation of an individual right is enough; others suggest that a factual harm is required. That inconsistency underlies the standing dispute in Spokeo. If the purpose of Article III standing is to protect the separation of powers by restricting federal courts to resolving only those disputes that courts historically could hear, the answer to that question is clear: the violation of a legal right alone should support Article III standing.
Friday, November 20, 2015
Over at his In Progress blog, Colin Starger has mapped out everyone’s favorite judicially-crafted exception the final judgment rule, showing “19 of the Supreme Court’s collateral order cases using a modified Spaeth Projection.”
Thursday, November 19, 2015
Professor Elizabeth Thornburg has posted on SSRN her article, Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative. The article was written for the Clifford Symposium this past spring and is forthcoming, along with other articles from the symposium, in DePaul Law Review early next year.
In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.
Tuesday, November 17, 2015
Law Professor Challenges the Seeming Federal Endorsement of Duke Nonbinding “Guidelines” on Proportionality Amendments
When I first read a draft of the Duke Center for Judicial Studies’ "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality" (the “Duke Guidelines”), I was confused. I was aware, of course, that Duke Law School had sponsored the 2010 conference on civil litigation now known commonly as the “Duke Conference,” which spawned the amendments to the Federal Rules of Civil Procedure that, apart from divine intervention, appear certain to go into effect on December 1, 2015. The dean of Duke Law School is David F. Levi, a former federal district judge who was chair of both the Civil Rules Advisory Committee and the Committee on the Rules of Practice and Procedure (known as the Standing Committee). The papers that were presented at the Duke Conference are still posted on the official website of the United States courts.
In 2011, Duke Law School created the Duke Center for Judicial Studies, a primary goal of which was to offer “educational programs for judges.” In addition, the Center took over the publication of Judicature: The Scholarly Journal for Judges, which is “mailed free of charge to all Article III judges, federal magistrate judges, and state supreme court judges.”
It seems clear that Duke has positioned itself to appear as a quasi-official body with particular expertise and gravitas in matters of federal litigation. Even the Advisory Committee on Criminal Rules has met at Duke.
So this summer, as I read a draft of the “Duke Guidelines” regarding the “proportionality” amendment to the FRCP (which will require all discovery to be “proportional to the needs of the case”), I had a lot of questions. These aren’t binding, are they? [No.] Who wrote these? [According to the final version, mainly the Reporters, with Team Leaders and Team Members providing feedback.] At whose instigation? [The Duke Center’s Advisory Council.] Why on earth are they necessary? [Rhetorical.] Why were these being drafted well before the rules even become effective? Do these things have any basis in case law? Why don’t they compare what they are saying to the official Advisory Committee notes? Why don’t they give any concrete examples of a particular type of case such as employment discrimination? And isn’t there a Rules Enabling Act issue in here somewhere?
Despite all these questions, I frankly put the Guidelines out of my mind, after satisfying myself that the Duke Center was not representing that its Guidelines were legally binding, and after posting about their existence on this blog (stating that the Center had asked for comments).
Professor Suja Thomas of the University of Illinois College of Law, however, has challenged the federal courts’ seeming “official esteem” of the Duke Guidelines that results from various ties between Duke and the federal Rules Committees.
The “Roadshow” that Uses the Duke Guidelines to “Think About” Proportionality
As we reported earlier, the Duke Center and the ABA are jointly presenting an “unprecedented” "Roadshow" on the 2015 discovery amendments. The former chair and a former member of the Civil Rules Advisory Committee, Judge Lee Rosenthal and Professor Steven Gensler, respectively, will be the moderators for the Roadshow. As Professor Thomas has noted, the Roadshow’s emphasis on Judge Rosenthal’s and Professor Gensler’s former affiliation with the Advisory Committee “gives the training an imprimatur of approval.”