Friday, February 5, 2016
Registration for the 2016 annual conference of the Southeastern Law Schools Association (SEALS) is now open. The final program is available. The conference will be held August 3-9, 2016 in Amelia Island, Florida.
The programs that seem to relate most to civil procedure, litigation, and courts are (I apologize if I missed any):
A bill to prohibit corporations from forcing arbitration of certain disputes, Restoring Statutory Rights Act, S.2506, was introduced on February 4 by Senator Patrick Leahy (D-VT).
Tuesday, February 2, 2016
Professor Gary Neustadter of Santa Clara University School of Law has posted on SSRN his article, Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World.
Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage’s acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or improvement of California residential real property. When issued, the notes were secured by junior consensual liens on the real property, but subsequent foreclosure of senior consensual liens, precipitated by the mid-decade burst of the housing bubble, left the notes unsecured.
This article reports an empirical study of these bankruptcy adversary proceedings. Because the proceedings were essentially identical, they offer a rare laboratory for testing the extent to which our entry-level justice system measures up to our aspirations for “Equal Justice Under Law.” We are unlikely to find many conditions better suited to empirical exploration of that question: (1) civil litigation filed during a relatively brief time span by one plaintiff against 266 defendants (including co-defendant spouses); (2) some defendants defaulting, some defendants appearing pro se, and some represented by an attorney; (3) dispersal of the litigation among forty-seven different bankruptcy court judges, all sitting in one state (and thus, where applicable, required to apply the relevant substantive law of a single state); and (4) legal claims and factual allegations by the plaintiff so nearly identical that each dispute is resolvable on the basis of one obvious and straightforward factual question (reliance by an originating lender on a borrower’s misrepresentations) or on the basis of three less obvious and more complex legal rules (a California statutory limitation on fraud claims and two alternative varieties of a standing defense).
The results in the Heritage adversary proceedings evidence a stunning and unacceptable level of randomly distributed justice at the trial court level, generated as much by the idiosyncratic behaviors of judges, lawyers, and parties as by even handed application of law. We anticipate some randomly distributed justice as the inevitable byproduct of disparities in economic and other resources of the parties and disparities in the knowledge, capabilities, and attitudes of even well-meaning attorneys and judges acting reasonably in an imperfect system. We aspire, nonetheless, to equal justice under law. The findings of this study reflect a departure from that ideal on a scale both larger than we may have expected and larger than we should tolerate.
Hat tip: Jason Kilborn, who had high praise for this article: “The paths and outcomes of these materially identical cases are so different in so many surprising (and often disturbing) ways, the paper offers a really stunning look behind the curtain of our often arbitrary trial-level justice system. . . . The revelations in this paper are a gold mine for civil proceduralists, and it offers a cautionary tale and useful playbook for lawyers (and perhaps judges) in how to make many aspects of our system more effective.”
Sunday, January 31, 2016
A bill to extend federal jurisdiction to claims for theft of trade secrets, the Defend Trade Secrets Act of 2015 (S. 1890), has been reported out of committee to the full chamber. Trade secrets are largely the subject of state law, and the federal courts currently lack jurisdiction of a claim for theft of trade secrets, unless there is diversity of citizenship or joinder with a transactionally-related federal-question claim such as trademark infringement.
The bill is co-sponsored by Republicans and Democrats.
The bill creates a civil action with original federal jurisdiction brought by “an owner of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” The bill sets conditions for the “seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”
The bill would also create a cause of action by “a person who suffers damage by reason of a wrongful or excessive seizure.”
One of the remedies that is authorized is, of course, damages:
[a court may] (B) award—
(I) damages for actual loss caused by the misappropriation of the trade secret; and
(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or
(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret . . .
(As an aside: Could (B)(ii) be characterized as an award of statutory damages, currently under attack in the Supreme Court in Spokeo, Inc. v. Robins?)
A brief description of the bill’s background by David J. Kappos, former director of the United States Patent & Trademark Office, is in thehill.com.
Tuesday, January 26, 2016
The Nevada Law Journal's current issue publishes a symposium entitled "Through a Glass Starkly: Civil Procedure Re-Assessed." It contains numerous notable articles and essays:
Symposium Introduction: Through A Glass Starkly: Civil Procedure Re-Assessed
Thomas O. Main and Jeffrey W. Stempel
How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process
Suja A. Thomas and Dawson Price
Some Specific Concerns with the New General Jurisdiction
Richard D. Freer
Scott v. Harris and the Future of Summary Judgment
Tobias Barrington Wolff
Revisiting the Integration of Law and Fact in Contemporary Federal Civil Litigation
Elizabeth M. Schneider
Reflections of a Recovering Aggregationist
Linda S. Mullenix
The Death with Dignity Ballot Initiative: Narrative Tensions and Jewish Legalities
Bernard H. Mehlman and Jeremy S. Morrison
Judicial Rejection of Transsubstantivity: The FOIA Example
Margaret B. Kwoka
Federal Court Rulemaking and Litigation Reform: An Institutional Approach
Stephen B. Burbank and Sean Farhang
Procedural Constants: How Delay Aversion Shapes Reform
Thomas O. Main
The Grand Poobah and Gorillas in our Midst: Enhancing Civil Justice in the Federal Courts—Swapping Discovery Procedures in the Federal Rules of Civil and Criminal Procedure and Other Reforms Like Trial by Agreement
Mark W. Bennett
Monday, January 25, 2016
SCOTUS Decision in Montgomery v. Louisiana: Supreme Court Jurisdiction, State Courts, and Retroactivity
Today the Supreme Court issued a 6-3 decision in Montgomery v. Louisiana, which involves the retroactive effect of the Supreme Court’s 2012 decision in Miller v. Alabama (where the Court prohibited mandatory sentences of life without the possibility of parole for juveniles).
The case presented both an interesting question of Supreme Court jurisdiction in the context of state collateral review proceedings, and the perennial federal courts challenge of when a new constitutional right applies retroactively. The majority opinion authored by Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan & Sotomayor) concluded:
(1) The Supreme Court had jurisdiction to review a state court’s failure to recognize, in the context of state collateral review, a federal constitutional right that applies retroactively;
(2) Miller did announce “a substantive rule of constitutional law” that applies retroactively; and
(3) A state may remedy a Miller violation by extending parole eligibility to juvenile offenders.
The three dissenters were Justices Scalia, Thomas, and Alito, who disagreed both on jurisdiction and on the merits. Justice Scalia wrote a dissenting opinion that was joined by both Thomas and Alito, and Justice Thomas wrote a separate dissent as well.
Check out Lyle Denniston’s analysis on SCOTUSblog.
Friday, January 22, 2016
I'm overcoming my reticence to post twice about one of my articles, because I want to promote the law students at St. Thomas University School of Law who have labored to establish the new St. Thomas Journal of Complex Litigation (JCL). The final version of my article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court," has just been posted on the JCL website. The abstract is available on SSRN here.
The St. Thomas JCL is pleased to accept submissions through ExpressO or Scholastica from judges, attorneys, law faculty, and law students. Information on submissions is here.
Wednesday, January 20, 2016
The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:
Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.
Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.
Saturday, January 16, 2016
We reported earlier that former and current members of the Civil Rules Advisory Committee (AC) are appearing in federal courthouses all over the country in an unprecedented "roadshow" produced by the ABA and the Duke Center for Judicial Studies that focuses on the proportionality amendments to the discovery rules.
Here's another step taken by former and current AC members that I believe to be unprecedented: they are starring in YouTube videos produced by the Federal Judicial Center. (Yes, the federal judiciary has a YouTube channel!)
There are five videos about the 2015 amendments.
- Overview, by Judge David Campbell (chair of the AC until October 2015 and a member of the AC since 2005)
- Cooperation, by Judge Gene Pratter (member of the AC from 2011 to present).
- Proportional Discovery, by Judge John Koetl (member of the AC from 2007 to 2014 and chair of the Duke Subcommittee).
- Early and Active Case Management, also by Judge Campbell.
- Failure to Preserve Electronically Stored Information, by Judge Paul Grimm (member of the AC from 2009 to 2015 and chair of the Discovery Subcommittee).
Some observations, in no particular order:
- In none of the videos do the speakers or the introductory frames indicate that they do not speak officially on behalf of the AC or the federal judiciary. In fact, there is every indication that are speaking officially.
- If you only have time for one or two videos, watch Judge Campbell's overview and Judge Grimm’s ESI video. The other videos repeat a lot of the overview.
- You might want to download the Swift app so that you can listen to the YouTube videos at faster than normal speed.
- The videos do not provide any example of an actual case, anecdote, or even a hypothetical situation that might give some content to the abstract vagaries of “proportionality.”
- None of the videos mentioned anything about the deletion of Rule 84 and the thirty-six forms that used to follow the rules.
- An effort is made to reassure viewers that the change in the scope of discovery “is not intended to deprive any party of the evidence needed to prove its claim or defense. The intent is to eliminate excessive and unnecessary discovery.”
- There is some revisionist history of the evolution of the proportionality amendments. Several speakers attempt to trace those amendments directly to conclusions reached at the 2010 Duke Conference. But this attempt is belied by the Committee’s 2011 Report to the Chief Justice about the Duke Conference, which specifically stated that there was no need to change the scope of discovery in Rule 26.
- Several speakers mentioned three surveys prepared for the Duke Conference, those by the ABA Section of Litigation, the National Employment Lawyers Association, and the Fellows of the America College of Trial Lawyers. Strangely, though, these FJC-produced videos fail to mention the FJC's own studies for the Duke Conference, even though the Committee’s 2011 report to the Chief Justice recognized (note 2, page 3) that the FJC "study design has an important advantage" over the others. (The FJC studies contained findings that suggested that no changes to discovery were needed.)
Friday, January 15, 2016
Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Thursday, January 14, 2016
As we covered earlier, the second annual Civil Procedure Workshop will be held this summer at the University of Washington in Seattle (July 14-15, 2016). If you’d like to present a paper for discussion, submit your two-page abstract by Friday, January 15.
More details here.
Tuesday, January 12, 2016
The Ninth Circuit yesterday overturned an order to seal court records in a case involving an alleged automobile safety defect. The Center for Auto Safety v. Chrysler Group, LLC, No. 15-55084 (9th Cir. Jan. 11, 2016).
From the summary prepared by the court’s staff:
The panel vacated the district court’s order denying The Center for Auto Safety’s motions to intervene and unseal documents filed to support and oppose a motion for preliminary injunction in a putative class action between Chrysler Group, LLC and certain named plaintiffs, and remanded for further proceedings.
. . .
The panel presumed that the instant motion for preliminary injunction was technically nondispositive. The panel held that public access to filed motions and their attachments did not depend on whether the motion was technically “dispositive;” but rather, public access turned on whether the motion was more than tangentially related to the merits of the case. The panel concluded that plaintiffs’ motion for preliminary injunction was more than tangentially related to the merits. The panel remanded for the district court to consider the documents under the compelling reasons standard.
The case is discussed on the Public Justice blog in a post by Jennifer Bennett, who argued the case for the intervenor, The Center for Auto Safety.
Hat tip: Paul Bland, Shawn Shaughnessy
Monday, January 11, 2016
The second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law, will be held at the University of Washington in Seattle on July 14-15, 2016.
Information from the organizers is as follows:
The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.
The workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.
Feel free to contact us with questions.
Liz Porter (UW), firstname.lastname@example.org
Sunday, January 10, 2016
On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016. (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless.")
For additional coverage of the bill, see our post from last Friday.
The bill goes to the Senate next for consideration.
Friday, January 8, 2016
The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions. Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."
When we last reported on this bill, it dealt only with class actions. That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015."
The latest draft of the portion of the bill on class actions reads as follows:
SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.
(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.
(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.
The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill. The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.” They concluded:
H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.
Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today. I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee.
The House yesterday passed a resolution limiting amendments to and debate on the bill.
Professor Alexandra D. Lahav testified against the bill last April.
Thursday, January 7, 2016
Up on the Courts Law section of JOTWELL this week is Robin Effron’s essay, Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure. Robin reviews Patricia Hatamyar Moore’s recent article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015).
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.