Friday, June 6, 2014
Charles "Rocky" Rhodes (South Texas College of Law) and Cassandra Burke Robertson (Case Western) have posted Toward a New Equilibrium in Personal Jurisdiction to SSRN.
In early 2014, the Supreme Court decided two new personal jurisdiction cases that will have a deep and wide-ranging impact on civil litigation in the coming decades: Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014). Bauman eliminates the traditional “continuous and systematic” contacts test for general jurisdiction, and Walden significantly retracts the ability of courts to exercise personal jurisdiction over out-of-state defendants whose actions have in-state effects. Taken together, both cases will make it significantly more difficult for plaintiffs to exercise control over where lawsuits are filed. In some cases — such as large-scale class actions — the new decisions may make it impossible to identify a single forum where multiple defendants can be sued together, and will therefore shift the balance of litigation power from plaintiffs to defendants.
This Article examines the effect that these decisions will have on future litigation and suggests solutions to the problems that will arise in the wake of these decisions. It analyzes how the Court’s new jurisprudence has shifted the balance of power in the jurisdictional framework, and it explores areas of future litigation. We predict four areas in which disputes are likely to become more salient: first, the “connectedness” requirement of specific jurisdiction; second, the availability of personal jurisdiction over pendent claims that form part of a single case or controversy; third, the future availability of personal jurisdiction over a defendant whose out-of-state conduct has caused effects within the forum state; and fourth, the availability of “consent jurisdiction” based on the appointment of a registered agent for service of process. Even before the Court’s 2014 cases, circuit splits had arisen over the propriety of jurisdiction in each of these four areas. Now that the Court has limited other grounds for personal jurisdiction, we predict those pre-existing splits will become more critical to resolve and will take on a central role in future litigation.
Our Article suggests solutions to the problems that will inevitably arise in the wake of these decisions, and it proposes a method of recalibrating specific jurisdiction to account for the demise of general contacts jurisdiction and the limitation on effects-test jurisdiction. It recognizes that International Shoe described two categories of specific jurisdiction — not just one — and it builds on this two-tier framework to reach a new equilibrium. When the defendant’s forum activities fall within Shoe’s “continuous and systematic” category, the balance of individual and state interests should tilt toward authorizing jurisdiction as long as some loose connection exists between the forum and the actions that give rise to the litigation. Thus, in cases that would have been eligible for general jurisdiction in the past, the forum relatedness requirement should be relaxed. In contrast, for adjudicatory jurisdiction in the “single or occasional” acts scenario, the state must have a tighter link to its sovereign regulatory interests. This rebalanced jurisdictional framework would therefore take into account the defendants’ liberty interests as protected by Bauman and Walden without sacrificing the states’ sovereign interest in protecting their citizens.
Tuesday, June 3, 2014
Some people really, really want to be in federal court instead of state court. In Arnold Crossroads v. Gander Mountain, No. 13-2020 (8th Cir. Jun. 2, 2014), defendant Gander tried and failed to remove the case three times. Plaintiff filed this breach-of-lease case on February 24, 2009 in Missouri state court, seeking one month's damages of $40,000. Defendant's first attempt at removal on the basis of diversity failed for lack of the amount-in-controversy requirement. Defendant then filed a declaratory judgment action in federal court, which was dismissed on abstention grounds in light of the pending state case.
Plaintiff eventually amended its complaint to seek millions of dollars in damages for breach of the lease's entire 15-year period, and defendant attempted to remove again, but this time failed because the effort to remove was untimely under 28 U.S.C. §1446 (one year for diversity actions).
A year later, the City where the lease was to have operated intervened as a plaintiff, seeking $750,000 from defendant. Defendant attempted a third time to remove, purporting to remove only the City. The federal district court once again remanded, and defendant appealed.
The Eighth Circuit dismissed the appeal for lack of appellate jurisdiction under 28 U.S.C. §1447(d) (an order remanding a case to the state court from which it has been removed "is not reviewable on appeal or otherwise"), because the district court's remand order was based on the "§1447(c) procedural flaw of untimely removal." Judge Smith dissented: "I would reach the primary issue in this case and hold that Gander can remove the City's claim because that civil action involved a new party who asserted a new and original claim."
Friday, May 30, 2014
Samuel Bray (UCLA) has posted The Supreme Court and the New Equity to SSRN.
The line between law and equity has largely faded away. The distinction between legal and equitable remedies has been a holdout, yet even there the conventional scholarly wisdom favors erasing the distinction. But something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has directly repudiated this conventional wisdom. These cases range across many areas of substantive law — from commercial contracts and ERISA to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations.
This Article describes and evaluates the Court’s new equity cases. Faced with many federal statutes authorizing equitable relief, the Court has looked to history and tradition to determine what counts as an equitable remedy and also to determine the circumstances in which equitable relief should be given. There have been some blunders, and the Court has glossed over the complexity of equity’s history. On the whole, however, the Court’s new equity cases represent a reasonable response to an enduring challenge — how to make sense of equitable doctrines in a world without equitable courts. This conclusion will prove controversial for scholars in remedies and in various substantive fields, but even those who disagree will need to grapple with the new equity cases, for they may shape the law of remedies for decades to come.
The Hastings Law Journal seeks submissions for a symposium on forum selection after Atlantic Marine Construction Co. v. U.S. District Court. The symposium, co-sponsored by the Journal and by UC Hastings College of the Law, will be held at UC Hastings in San Francisco on Friday, September 19, 2014.
Topics may include -- but need not be limited to -- analyses and implications of the Supreme Court’s decision, the sources of law governing forum selection, and issues of private control of litigation more generally. Accepted essays will be published in the Journal in 2015, and invited participants will receive assistance with travel and lodging expenses. Practitioners and others working in the field are welcome to attend.
Abstracts of 2-4 pages should be sent to email@example.com no later than Monday, June 23. Authors of accepted essays will be notified in the first week of July, and completed drafts must be submitted for circulation to symposium participants by Friday, September 5.
Wednesday, May 28, 2014
Tired of using Mosley v. General Motors for an illustration of joinder under Rule 20? The D.C. Circuit has provided a great new case. The court quaintly began its opinion:
Generally speaking, our federal judicial system and the procedural rules that govern it work well, allowing parties to resolve their disputes with one another fairly and efficiently. But sometimes individuals seek to manipulate judicial procedures to serve their own improper ends. This case calls upon us to evaluate—and put a stop to— one litigant’s attempt to do just that.
AF Holdings, LLC v. Does 1-1058, No. 12-7135 (D.C. Cir. May 27, 2014).
Plaintiff AF Holdings, represented by a law firm related to one that was called a "porno-trolling collective" in another case, allegedly (there was some question of forgery) acquired the copyright to a pornographic film called "Popular Demand." It sued 1,058 "John Doe" defendants in federal court in D.C. for copyright infringement for downloading the film on a file-sharing service known as BitTorrent.
Moving for leave to take immediate discovery, AF Holdings then sought to serve subpoenas on the five Internet service providers linked to the 1,058 IP addresses it had identified: Cox Communications, Verizon, Comcast, AT&T, and Bright House Networks. The district court granted the motion . . . . The providers refused to comply. Invoking Federal Rule of Civil Procedure 45(d)(3)(A), . . . they asserted that the administrative expense involved was necessarily an “undue burden” because AF Holdings had failed to establish that the court would have personal jurisdiction over the defendants or that venue would lie in this district. . . . The providers also argued that any burden was necessarily undue because AF Holdings had failed to provide any reason to think that joinder of these 1,058 defendants in one action was proper. The district court rejected these arguments, . . . [but] certified its order for immediate appeal.
The D.C. Circuit vacated, holding that AF Holdings had failed to make a threshold showing of a good faith belief that the discovery would enable it to show that the court had personal jurisdiction over the unknown defendants; thus, the information sought from the service providers was not relevant.
The court then turned "to the question of joinder, which provides a separate and independent ground for reversal":
. . . Federal Rule of Civil Procedure 20(a)(2) sets forth that multiple defendants may be joined in one action if the plaintiff seeks relief “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all defendants will arise in the action.” In a multi-Doe copyright infringement lawsuit such as this, at least one issue of law or fact will generally be common to all defendants—here, that issue might be whether AF Holdings has a valid copyright in Popular Demand. But whether all of these Doe defendants could possibly have been a part of the same “transaction, occurrence, or series of transactions or occurrences” so as to support joinder is a more difficult question. . . . For purposes of this case, we may assume that two individuals who participate in the same swarm [a type of peer-to-peer file sharing] at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm. But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time.
The D.C. Circuit left the question of sanctions to the district court on remand.
Tuesday, May 27, 2014
Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.
In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. Here’s how Justice Ginsburg puts things in footnote 5: “In ruling on a motion to dismiss, we have instructed, courts ‘must take all of the factual allegations in the complaint as true,’ but ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).” And on page 12: “[U]nder the governing pleading standard, the ‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ Iqbal, 556 U.S., at 678 (internal quotation marks omitted).”
Part II.B of the opinion contains the most detailed discussion of qualified immunity and its requirement that a plaintiff’s claim be based on a right that was “clearly established at the time of the challenged conduct.” [p.12]. Among other things, Justice Ginsburg writes:
“No decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. ... No clearly established law, we agree, required the Secret Service to interfere with even more speech than security concerns would require in an attempt to keep opposing groups at roughly equal distances from the President. And surely no such law required the agents to attempt to maintain equal distances by prevailing upon the President not to dine at the Inn. [pp.14-15 (citations and internal quotation marks omitted)]”
Part III of the opinion addresses a potentially distinct theory of liability, and that part of the opinion may prove more instructive on pleading standards generally. Part III begins: “The protesters allege that, when the agents directed their displacement, the agents acted not to ensure the President’s safety from handguns or explosive devices. Instead, the protesters urge, the agents had them moved solely to insulate the President from their message, thereby giving the President’s supporters greater visibility and audibility.” [pp.15-16] Justice Ginsburg does recognize the possibility that “clearly established law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had no objectively reasonable security rationale for their conduct, but acted solely to inhibit the expression of disfavored views.” [p.16 (citations and internal quotation marks omitted)] She rejects this theory, however, noting that a map of the relevant area that the plaintiffs had included in their complaint “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions”; the map “corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.” [p.16]
Although the plaintiffs “make three arguments to shore up their charge that the agents’ asserted security concerns are disingenuous,” [p.16] Justice Ginsburg is not persuaded. In particular, she writes:
“[A]s the map attached to the complaint shows, see supra, at 4, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location. See supra, at 14. Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction.” [p.18 (citations and internal quotation marks omitted)]
One of the many questions that has vexed courts, commentators, and practitioners after Twombly and Iqbal is how to evaluate allegations about a defendant’s intent. Although the 2002 decision in Swierkiewicz v. Sorema suggested a very lenient approach to such allegations, many have read Iqbal – which also involved allegations of discriminatory animus – to require a stricter approach. At first glance, Wood does not seem to provide a conclusive resolution. Although the Court rejects the plaintiffs’ viewpoint-discrimination theory, Justice Ginsburg relies heavily on the fact that material in the complaint itself – the map of the relevant area – “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions.” [p.16] This is not likely be a regular occurrence in cases involving discriminatory intent. Another feature of Wood may be even more important. Given Justice Ginsburg’s reasoning regarding qualified immunity, the plaintiffs would have had to show that “the agents had no objectively reasonable security rationale.” [p.16] Part III of the opinion, therefore, did not hinge on the premise that viewpoint discrimination played no role at all in the defendants’ decision; rather – as a matter of the substantive law governing the defendants’ qualified immunity defense – the presence of an objectively reasonable security rationale doomed the plaintiffs’ claims even if viewpoint discrimination also played a role.
PS: Readers may have noticed Adam Liptak’s recent New York Times article describing how Supreme Court opinions can be revised by the Justices after they are initially issued – sometimes years later. For what it’s worth, then, I’m including in this post not only the relevant link to the opinion on the Supreme Court’s website, but also a downloaded version of the opinion as it originally appeared there this morning:
Corina D. Gerety and Brittany K.T. Kauffman, of The Institute for the Advancement of the American Legal System at the University of Denver, have published a Summary of Empirical Research on the Civil Justice Process: 2008-2013.
An explanation of its Scope provides, "This report provides a synthesis of the relevant empirical research on the civil justice process released from 2008 to 2013. In addition to IAALS research, it contains studies conducted by a variety of organizations and individuals, including the Federal Judicial Center, the National Center for State Courts, the RAND Corporation, and others. We, the authors, refer to 39 studies in total, representing a relatively even mix of case file/docket studies and surveys/interviews."
Thursday, May 22, 2014
The National Law Journal has made available in digital form 257 financial disclosure reports for federal appellate judges for the year 2012 (the last year available), which the Journal had to retrieve manually.
I clicked on the first name, Judge D. Brooks Smith, appointed to the Third Circuit in 2001. Judge Smith received over $23,000 from Penn State University Dickinson School of Law as an adjunct professor in the fall semester of 2012. He was also reimbursed for travel by two law school Federalist Society chapters in 2012 as a "speaker for education program."
The reports should prove interesting reading.
Wednesday, May 21, 2014
The Southeastern Association of Law Schools (SEALS) annual conference will be held August 1-7, 2014 at The Omni, Amelia Island, Florida. The program is available here.
Panels and discussion groups related to civil litigation include:
SUPREME COURT AND LEGISLATIVE UPDATE: BUSINESS AND REGULATORY ISSUES
This part of the Supreme Court and Legislative Update panels focuses on decisions relating to corporate issues, civil litigation, and administrative and business issues, as well as important legislation enacted by Congress or the states.
Moderator: Professor Charles "Rocky" Rhodes, South Texas College of Law
Speakers: Professor Christopher Green, The University of Mississippi School of Law; Professor Erin Hawley, University of Missouri School of Law; Professor Joan Heminway, The University of Tennessee College of Law; Professor David Hricik, Mercer University Law School; Professor Andrew Siegel, Seattle University School of Law; Professor Douglas Williams, Saint Louis University School of Law
Discussion Group: MANDATORY ARBITRATION AND JUSTICE
Mandatory binding arbitration has come under increasing scrutiny in Congress, the Supreme Court, and public discourse. Critics argue that the process is unfair because it is not truly consensual or because it lacks important procedural safeguards. By contrast, defenders claim that baseline norms of fairness are presupposed in the idea of arbitration and that outcomes for consumers and employees are at least as good as those in litigation.
Is justice possible in mandatory arbitration? How important is it in relation to other values such as autonomy and efficiency? How should we measure “justice”? We will discuss both historical and contemporary focuses, as well as individual and group perspectives.
Moderators: Professor Hiro Aragaki, Loyola Law School, Los Angeles; Professor Andrea Doneff, Atlanta's John Marshall Law School
Discussants: Professor Sarah Cole, The Ohio State University, Moritz College of Law; Professor Jaime Dodge, University of Georgia School of Law; Professor Richard Frankel, Drexel University School of Law; Professor Michael Green, Texas A&M University School of Law; Professor Jill Gross, Pace University School of Law; Professor Stephen Ware, University of Kansas School of Law; Professor Nancy Welsh, Penn State University, Dickinson School of Law; Professor Maureen Weston, Pepperdine University School of Law
Discussion Group: CIVIL PROCEDURE DISCUSSION GROUP: PROCEDURAL HURDLES AND THE DAY IN COURT
The judicial process has transformed over the last decades, which has impacted the ability of plaintiffs to obtain a day in court. Federal statutory and rule revisions, as well as recent Supreme Court decisions, have made marked changes in the enforcement of arbitration clauses, federal subject matter jurisdiction, personal jurisdiction, venue, pleading standards, class certification standards, and the discovery process. These changes have combined to place greater emphasis on the pretrial process at the expense of the availability of a trial. This discussion group will explore these changes, at both an individual and collective level, and the resulting changes to the American system of procedure. Discussants will exchange papers before the conference examining these issues from a variety of perspectives.
Moderators: Professor Michael Allen, Stetson University College of Law; Professor Thomas Metzloff, Duke University School of Law
Discussants: Professor Donald Childress III, Pepperdine University School of Law; Professor Scott Dodson, University of California, Hastings, College of the Law; Professor Richard Freer, Emory University School of Law; Professor Paul Gugliuzza, Boston University School of Law; Professor Megan La Belle, The Catholic University of America, Columbus School of Law; Professor Benjamin Madison, Regent University School of Law; Professor Philip Pucillo, Michigan State University College of Law; Professor Charles Rocky Rhodes, South Texas College of Law; Professor Cassandra Robertson, Case Western Reserve University School of Law; Professor Howard Wasserman, Florida International University College of Law
NEW SCHOLARS COLLOQUIA (PANEL #6)
Civil procedure and Courts
Moderator: Professor Scott Dodson, University of California, Hastings, College of the Law
Speakers: Professor Ramona Lampley, St. Mary's University School of Law, Arbitration, Transparency, and Access to Courts (Mentor: Professor Thomas Metzloff, Duke University School of Law); Professor Jason Parkin, Pace University School of Law, Due Process Disaggregation (Mentor: Professor Benjamin Barton, The University of Tennessee College of Law); Professor Victoria Shannon, Washington and Lee University School of Law, Regulating the Procedural Facet of Third-Party Funding (Mentor: Professor Danielle Holley-Walker, University of South Carolina School of Law); Professor Jessica Steinberg, The George Washington University Law School, Demand Side Reform in the Poor People's Court (Mentor: Professor Cassandra Burke Robertson, Case Western Reserve University School of Law)
If I missed any, please let me know. Thanks.
Thursday, May 8, 2014
Ed Brunet and John Parry (Lewis & Clark) present the following guest post:
The growing list of summary judgment skeptics should find much to like in Monday’s Tolan v. Cotton decision. In a per curiam opinion, the Supreme Court reversed a Fifth Circuit decision that had affirmed a grant of summary judgment on grounds of qualified immunity in a section 1983 case. Although the decision of the Supreme Court turns largely on substantive civil rights law, Tolan is surprisingly instructive regarding summary judgment mechanics. The Supreme Court emphasized that the lower courts had not weighed inferences in favor of the nonmovant regarding the substantive element of whether the alleged excessive force used by the defendant police officer violated “clearly established rights,” and it asserted that the “judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Some of the basic facts are undisputed. This case involved a police officer’s 2 a.m. stop of a car that had “turned quickly” onto a residential street. The decision to stop followed the officer’s keying in the wrong license number into his computer and incorrectly thinking that the car was stolen. The arresting officer drew his pistol and ordered the two men in the car to the ground. When the parents of plaintiff Tolan emerged from the front door of the house where the car had parked, the officer stated that he believed that the two men had stolen the car and the excited parents pointed out that they owned the vehicle and the house. The mother’s continued protestations caused officer Cotton, a new arrival on the scene who also had his gun drawn, to order her to stand against the garage door.
The evidence was clearly conflicting regarding what happened to Tolan’s mother. Tolan presented evidence that his mother was grabbed by the arm by officer Cotton and slammed to the ground with such force that bruising, confirmed by photos, occurred. Cotton denied slamming her into the garage and contended that he was escorting her, she “flipped her arm up and told him to get his hands off her.” This scene ended when Tolan stated, “Get your fucking hands off my mom,” to which Cotton responded by firing three shots at Tolan, causing liver and lung damage. A dispute of facts exists as to whether Cotton had pushed Tolan’s mother against the garage door, and whether Tolan was standing or had risen to his knees when shot. There was also a dispute about the quality of lighting at the front of the house.
The lower court opinion resolved the factual issues against Tolan, stating “his shouting and abruptly attempting to approach Sergeant Cotton inflamed an already tense situation; in the light of his actions at the scene, a genuine dispute of material fact does not exist regarding whether Sergeant Cotton acted objectively unreasonably.” The Supreme Court, in turn, chastised the Fifth Circuit for “failing to credit evidence that contradicted some of its key factual conclusions” and for “a clear misapprehension of summary judgment standards in light of our precedents.”
It is tempting to assess this case as a major summary judgment decision. After all, this is the first summary judgment victory in the Supreme Court for a civil rights plaintiff in some time. The rhetoric used by the Court is a time-worn cliché, namely that “at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” This is hardly new law. Its use in a per curiam opinion summary reversal arguably signals a major change in attitude. But, it may be that all the Supreme Court is doing here is correcting a grievous error. It seems almost impossible not to find disputed issues of fact on this record, as Judge Dennis observed in his dissent from rehearing en banc. If the Court had let the lower court decision stand, the error would win the day. Yet, if that had been all the Court wanted to accomplish, it could have simply vacated and remanded to the lower courts with instructions to weigh inferences in favor of the nonmovant, without detailing the facts and the Fifth Circuit’s errors.
At the very least, the per curiam decision should embolden courts to identify disputed facts. Further, citing the landmark 1987 Anderson v. Creighton opinion – a case which typically is invoked against plaintiffs, not against defendants – Tolan reminds lower courts that the clearly established right at issue needs to be examined in “the ‘specific context of the case’” in order to avoid “import[ing] genuinely disputed factual propositions.”
Justice Alito concurred joined by Justice Scalia. He noted the unusual posture of the case in which the Court both granted a petition for certiorari and vacated the Fifth Circuit’s judgment. (Will Baude also comments on this aspect of the concurrence here.) He stresses that this was a typical summary judgment dispute over “whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment.” Alito goes on to conclude that the Court of Appeals “invoked the correct standard here.” The use of the word “standard” appears questionable. The directed verdict standard is the only standard used in summary judgment, replacing the old “doubt” standard of many circuits. More later!
Wednesday, May 7, 2014
The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"
The digest of the opinion states:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
The deadline for public comments is 5 p.m., June 24, 2014.
Saturday, May 3, 2014
Professor Colin Miller's EvidenceProf Blog reports on the Supreme Court's approval of amendments to the Federal Rules of Evidence that deal with hearsay: 801(d)(1)(B) (prior consistent statements), and 803(6), (7), and (8) (burden of proof in showing untrustworthiness of records of regularly conducted activities and public records). The amendments will take effect on December 1, 2014 unless Congress takes other action.
Friday, May 2, 2014
As a break from writing or grading your final exams (and to walk down the memory lane of law practice for some of us), here's a great reenactment of an argument during a deposition about the definition of a photocopier. The short video by writer and director Brett Weiner is part of the New York Times Op-Docs series and is a verbatim transcript of a deposition from an Ohio case.
Thursday, May 1, 2014
Call for Papers: AALS Section on Litigation
“The Future of Discovery”
AALS Annual Meeting
January 2-5, 2015, in Washington, D.C.
The AALS Section on Litigation will sponsor a panel discussion on “The Future of Discovery” at the January 2015 Annual Meeting of the Association of American Law Schools.
This program focuses on the future of discovery in civil litigation. Premised on a philosophy that parties ought to be able to obtain all relevant, nonprivileged information before trial, the discovery provisions in the original Federal Rules of Civil Procedure ushered in an era of broad discovery. By the 1980s, however, discovery had become a primary focus of litigation reform efforts. Since then, federal rulemakers have devoted recurrent attention to discovery reform. Many argue that additional discovery reform remains critical to reining in excessive burden, cost, and delay of civil litigation. Others assert that discovery does not impose excessive expense or delay in the broad run of cases; they criticize proposals to reduce the scope of discovery or to increase proportionality limits; and they question the impact of discovery changes on particular types of litigation as well as for the civil justice system as a whole. The current proposal to amend the federal discovery rules has deepened the discussion of these issues.
This program will explore the future of discovery. The program will include a speaker selected from this Call for Papers. Eligible papers may address any topic related to the future of civil discovery, including but not limited to, the appropriate role of proportionality in discovery; the empirical bases for reducing discovery or choosing among options for responding to perceived litigation excesses; the potential role of nontranssubstantive rules regarding discovery; the role of discovery sanctions; the impact of previous or proposed amendments to discovery rules; and the efficiencies that may be achieved or the access to justice issues that may arise as the scope of discovery changes. Essay and article length submissions are welcome.
The selected author will participate in the Section’s annual program, which will take place in January 2015, in Washington, D.C. Authors must rely on their own institutions for funding to attend the conference. The Review of Litigation has agreed to publish the selected paper and other articles that are submitted by panel members (subject to final approval of the article by the editors of that publication).
The deadline to submit a draft paper is Tuesday, September 2, 2014. Please submit the draft paper to Bernadette Bollas Genetin, Chair of the Section on Litigation, as an attachment to an e-mail sent to Bernadette Genetin, at firstname.lastname@example.org. The attachment should be in Word, WordPerfect, or PDF format. You will receive confirmation of receipt of your submission within 48 hours of submitting. Submissions will be reviewed by members of the Litigation Section’s Executive Committee. Decisions will be communicated by late September 2014.
Tuesday, April 29, 2014
Today the Supreme Court issued unanimous decisions in Octane Fitness v. Icon Health and Fitness (No. 12-1184) and Highmark Inc. v. Allcare Management Systems, Inc. (No. 12-1163), two cases on fee-shifting in patent cases. Both opinions were authored by Justice Sotomayor.
The Octane Fitness opinion begins:
Section 285 of the Patent Act authorizes a district court to award attorney’s fees in patent litigation. It provides, in its entirety, that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U. S. C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the United States Court of Appeals for the Federal Circuit held that “[a] case may be deemed exceptional” under §285 only in two limited circumstances: “when there has been some material inappropriate conduct,” or when the litigation is both “brought in subjective bad faith” and “objectively baseless.” Id., at 1381. The question before us is whether the Brooks Furniture framework is consistent with the statutory text. We hold that it is not. [Slip Op., p.1]
Rather, as Justice Sotomayor explains:
[A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. As in the comparable context of the Copyright Act, “‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994). [pp.7-8 (footnote omitted)]
And here’s how the Highmark opinion begins:
We granted certiorari to determine whether an appellate court should accord deference to a district court’s determination that litigation is “objectively baseless.” On the basis of our opinion in Octane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, argued together with this case and also issued today, we hold that an appellate court should review all aspects of a district court’s §285 determination for abuse of discretion. [Slip Op., p.1]
Monday, April 28, 2014
The Supreme Court of the United States has approved an amendment to Rule 77 that, in the words of the Standing Committee on Rules of Practice and Procedure, “corrects a cross-reference to Rule 6(a) that should have been changed when Rule 6(a) was amended in 2009.” Unless Congress intervenes, the amendment will take effect on December 1, 2014.
Adjust your syllabi accordingly.
If you’re interested in the more controversial batch of proposed amendments that would revise the discovery rules and eliminate the Forms, the Supreme Court is not likely to be acting on those until Spring 2015. And there are still a number of steps in the process, the next of which is the Standing Committee’s meeting in May.
Thursday, April 24, 2014
Second Annual Workshop for Corporate & Securities Litigation: Call for Papers
The University of Richmond School of Law and the University of Illinois College of Law invite submissions for the Second Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, October 24 and Saturday, October 25, 2014, in Richmond, Virginia.
This annual workshop brings together scholars focused on corporate and securities litigation to present their works-in-progress. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible. Appropriate topics include, but are not limited to, securities class actions, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis. Participants will generally be expected to have drafts completed by the fall, although there will be one or more "incubator" sessions for ideas in a more formative stage.
Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Richmond School of Law in Richmond, Virginia, on Friday, October 24 and Saturday, October 25, 2014. Hotel costs will be covered. Participants will pay for their own travel and other expenses.
The workshop is designed to maximize discussion and feedback. The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved.
If you are interested in participating, please send an abstract of the paper you would like to present to Verity Winship at email@example.com not later than Friday, May 30, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 27.
Wednesday, April 23, 2014
Alan Trammell (Brooklyn Law School) has posted Transactionalism Costs to SSRN.
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them.
First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion and estoppel doctrines on the back end of litigation). But frequently it is neither.
I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion and estoppel will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy — the power to shape preclusion and estoppel doctrines. Finally, it will offer certainty and predictability that parties never have had before — knowing exactly how broadly preclusion and estoppel will apply.
Tuesday, April 22, 2014
Seventh Annual Junior Faculty Federal Courts Workshop
CALL FOR PAPERS:
The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).
The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.
Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.
Monday, April 21, 2014
Via Gawker: "Connecticut Senator Richard Blumenthal received an unexpected lesson in practicing what you preach at a press conference yesterday. Standing on the platform at the Milford Metro-North station, Blumenthal and his easel narrowly dodged an oncoming train as Milford Mayor Ben Blake spoke about commuter safety."
It is a good reminder that as civil procedure profs our responsibilities include teaching important lessons of federalism. But also important lessons about not standing too close to trains...