Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.
Tuesday, March 14, 2017
A very interesting ruling came down today from District Judge Mark Bennett of the Northern District of Iowa. From the opening paragraph:
This ruling involves one of the least favorite tasks of federal trial and appellate judges—determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections.
Judge Bennett finds that the parties’ objections violated several discovery rules, including Rule 26(b)(5)’s provisions on asserting privileges and Rules 33 and 34’s requirements that objections to interrogatories and requests for production be stated “with specificity.” He concludes (footnotes omitted):
To address the serious problem of “boilerplate” discovery objections, my new Supplemental Trial Management Order advises the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.” The Order also imposes an “affirmative duty to notify the court of alleged discovery abuse” and warns of the possible sanctions for obstructionist discovery conduct.
I recall the words of a former U.S. Attorney General in a different context: “Each time a [person] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, [they] send[ ] forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance.” I pledge to do my part— enough of the warning shots across the bow.
The conduct identified in the Show Cause Order does not warrant sanctions, notwithstanding that the conduct was contrary to the requirements for discovery responses in the Federal Rules of Civil Procedure. NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.
The case is Liguria Foods v. Griffith Laboratories.
Sunday, March 12, 2017
Anna Carpenter has posted on SSRN a draft of her article, Active Judging and Access to Justice, which will be published in the Notre Dame Law Review. Here’s the abstract:
Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.
Michael Morley has posted on SSRN a draft of his article, The Federal Equity Power. Here’s the abstract:
Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.
Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power.
There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.
Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.
Friday, March 10, 2017
We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.
- H.R. 725 (the Innocent Party Protection Act) passed by a vote of 224–194.
- H.R. 985 (the Fairness in Class Action Litigation Act) passed by a vote of 220-201-1.
Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.
Thursday, March 9, 2017
Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami. Suzette reviews a recent article by Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).
Wednesday, March 8, 2017
Tuesday, March 7, 2017
Jason Kilborn provides the following guest post on Amalia Kessler’s recent book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale Univ. Press 2017):
* * *
Given the title, I thought the book was about why US lawyers (or our legal culture generally) are so bellicose. Instead, it's about why we gravitated toward lawyer-driven adversarial (accusatorial) procedure, as opposed to European style, judge-driven inquisitorial procedure, and how the result of our choice is now a deeply ingrained part of US legal culture. It's about the fiercely independent US rejection of the canon-civil law approach of chancery/equity (secret, written, controlled by bureaucrats, headed by one elitist chancellor) in favor of the supposedly more democratic law courts (open, oral, lawyer-driven, headed by many judges and involving juries in fact-finding). It thus nicely supplements other recent books, like Suja Thomas's on the key role of our (all but moribund) trial-and-jury process as a key aspect of our democracy (http://sujathomas.com/missing-american-jury/).
Monday, March 6, 2017
In my opinion, the video is suitable for law students and also the general public. I think there is a great need for clear, brief videos on various aspects of the U.S. government. There appears to be a dearth of knowledge on that score. For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.
Now on the Courts Law section of JOTWELL is Alexandra Lahav’s essay, (Almost) Everything You Wanted to Know About Class Actions. Alexandra reviews John Coffee’s recent book, Entrepreneurial Litigation: Its Rise, Fall, and Future.
Thursday, March 2, 2017
The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).
Hat tip: Adam Zimmerman
Wednesday, March 1, 2017
In addition to the six bills already reported here and here, House Republicans have also introduced H.R. 1118, the so-called “Innocent Sellers Fairness Act,” which would federalize the law of product liability by limiting liability for the sellers of a product. The bill is sponsored by Rep. Blake Farenthold (R-TX 27), Rep. John Duncan (R-TN 2), and Rep. Lamar Smith (R-TX 21).
The operative provisions of the bill provide:
(a) In general
No seller of any product shall be liable for personal injury, monetary loss, or damage to property arising out of an accident or transaction involving such product, unless the claimant proves one or more of the following activities by the seller:
(1) The seller was the manufacturer of the product.
(2) The seller participated in the design of the product.
(3) The seller participated in the installation of the product.
(4) The seller altered, modified, or expressly warranted the product in a manner not authorized by the manufacturer.
(5) The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant.
(6) The seller had actual knowledge of the defect in the product at the time the seller supplied the product.
(7) The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer.
(8) The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
(b) Liability of seller in cases of negligence
If the claimant proves one or more of the activities described in subsection (a) and such activity was negligent, the seller’s liability is limited to the personal injury, monetary loss, or damage to property, directly caused by such activity.
These provisions resemble Section 8 of the American Legislative Exchange Council's so-called “model policy” on product liability for state legislators to copy.
Unlike the other six bills, this one has not passed the House Judiciary Committee.
Monday, February 27, 2017
Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas proceedings should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the Second, Fourth, Seventh, and Tenth Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the Ninth and D.C. Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver, and the unique-circumstances doctrine.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Section 1367 of Title 28 authorizes federal district courts in certain circumstances to exercise supplemental jurisdiction over claims arising under State law.
Section 1367 further provides that "[t]he period of limitations for any [such] claim ...shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. § 1367(d).
The question presented is whether the tolling provision in §1367(d) suspends the limitations period for the state-law claim while the claim is pending and for thirty days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Sunday, February 26, 2017
The Republicans in Congress are intent on expropriating ordinary citizens’ right to sue wrongdoers and allowing corporations and other defendants to violate the law without consequence.
Not content to protect corporations from accountability by hobbling class actions and intimidating plaintiffs' lawyers with mandatory Rule 11 sanctions, Republicans are going for the full monty: federalized so-called “tort reform” (or what I call “tort elimination”).
Without a hearing, H.R. 1215 (Download HR1215) goes to straight to markup in the House Judiciary Committee this Tuesday. The bill was sponsored by Rep. Steve King (R-IA 4th Dist.).
H.R. 1215 has the Orwellian name of “Protecting Access to Care Act of 2017” (because all Republican-sponsored bills about the civil justice system are named just the opposite of what they would actually do to ordinary citizens). The name of this bill should be “Protecting Doctors and Hospitals from Liability for Wrongdoing and Protecting Insurance Companies from Having to Pay Legitimate Claims.”
Although Republicans supposedly care about “states’ rights,” this bill would eliminate (by preempting) vast swaths of state tort law. Among the many draconian provisions of the bill:
- It would impose a uniform 3-year statute of limitations on “health care lawsuits.”* States would be free to have a shorter one, but not a longer one.
- It would impose a uniform $250,000 limit on noneconomic damages.
- The bill would not limit economic damages, but it would allow states to limit economic damages, noneconomic damages, and the total amount of damages.
- Naturally, “the jury shall not be informed about the maximum award for noneconomic damages.” Because then they might at last understand what “tort reform” means.
- The bill would eliminate joint-and-several liability. This could deprive an innocent injured person of full compensation, while shielding a wrongdoing defendant from paying for an injury he helped to cause.
- “Any party” would be allowed to introduce evidence of collateral source benefits.
- An award of future damages over $50,000 would be required, at the request of “any party,” to be paid in periodic payments.
- The bill would completely release health care providers (as defined) from any liability in a products liability action for prescribing a product approved by the FDA.
Finally, no Republican-sponsored civil justice bill would be complete without denigrating plaintiffs’ attorneys and making it even more uneconomical for plaintiffs’ attorneys to represent clients. This bill goes so far as to call the payment to attorneys of an agreed-upon fee a “conflict of interest.” The bill would give the court the power to restrict a contingent fee. And “in no event shall” the contingent fee exceed 40% of the first $50,000 recovered, 33-1/3% of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000.
So now the federal government would be dictating to the states what attorneys’ fees they could allow. Those limits would apply even in settlement, mediation, or arbitration.
Really, guys? This bill isn’t even getting a hearing? Maybe to talk about its practical elimination of citizens’ ability to sue or the fact that the bill is a gift to the insurance industry? Maybe to talk about the experience that many states, swept up in “tort reform” over the last several decades, have had with similar provisions (many of which have been held unconstitutional)? How about the fact that the bill slavishly follows the positions of the American Tort Reform Association and the shadowy American Legislative Exchange Council?
H.R. 1215 joins five other bills introduced in the past few weeks that tilt the table in favor of corporate defendants in litigation. Is there any item on the corporate defense wish list that we haven’t seen introduced in Congress yet?
It is possible, though, that this bill could have one positive effect. It may induce doctors, hospitals, and insurance companies who currently refuse to participate in federal programs to do so, based upon the limited liability the bill would ensure.
*Definition: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based . . .” This would presumably include Medicare, Medicaid, and the Affordable Care Act.
Friday, February 24, 2017
Maria Glover has published A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017). Here’s the abstract:
Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”
This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.
Thursday, February 23, 2017
Paul Gugliuzza and Megan La Belle have posted on SSRN a draft of their article, The Patently Unexceptional Venue Statute, which will be published in the American University Law Review. Here’s the abstract:
Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct.
This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond.
This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation.
Wednesday, February 22, 2017
Simona Grossi has posted on SSRN a draft of her article, The Claim. Here’s the abstract:
I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.
I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.
My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.