Wednesday, July 13, 2016
Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:
For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.
The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?
This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.
Tuesday, July 12, 2016
Jessica Erickson has posted on SSRN a draft of her article, Heightened Procedure, which will be published in the Iowa Law Review. Here’s the abstract:
When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for uniform procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure” — additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the prevalence of heightened procedure, there has been no comprehensive examination of its role across the legal system, leaving lawmakers with little understanding of what specific heightened procedures do and what specific areas of the law need. This Article aims to provide that framework, explaining how lawmakers can match the causes of meritless litigation with the appropriate heightened procedural tools. In the end, meritless litigation is not one-size-fits-all, and its procedural solutions should not be either.
Professor Richard Freer has just published in Emory Law Journal, 65 Emory L.J. 1491, his recent article, Exodus from and Transformation of American Civil Litigation.
But, at least as envisioned historically, court litigation plays a far broader role than arbitration. It is a transparent public process, governed by the rule of law. It generates the common law that governs most aspects of our daily lives. It is pivotal in social ordering. Arbitration, in contrast, goes on behind closed doors, is not cabined by the rule of law, and does not result in reasoned opinions. Arbitration resolves the dispute at hand and does little else. Accordingly, some have argued that the view that arbitration and court litigation are equivalents cheapens the values embodied in court litigation.
That argument is strong, but would be stronger if today’s version of court litigation resembled the historical model. It does not. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. Indeed, some judges conclude that going to trial reflects a systemic “failure.”
The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.
Monday, July 11, 2016
In a 4-3 decision, the Colorado Supreme Court has adopted for purposes of Colorado state procedure the approach to pleading that the U.S. Supreme Court employed in Twombly and Iqbal. From the majority opinion in Warne v. Hall:
¶2 Because our case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the court of appeals too narrowly understood our existing precedent. Because the plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court of appeals finding the complaint to be sufficient is reversed, and the matter is remanded with instruction to permit further proceedings consistent with this opinion.
From the dissent:
¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable.
¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.
Tuesday, June 28, 2016
How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases
Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses. What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia. Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud.
The Discovery Sought by the News Media
What does this have to do with the Federal Rules of Civil Procedure? Well, hang on. One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.
Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule. The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.” Trump opposes the motion.
But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction. The putative intervenors (the news media) want it all.
Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding”
Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.” Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission). From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery. (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.)
In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court. The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space. But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.
Wednesday, June 22, 2016
Judge Philip M. Pro (United States District Court for the District of Nevada) has posted on SSRN his article United States Magistrate Judges: Present but Unaccounted For, forthcoming in the Nevada Law Journal.
The relationship between United States district judges and United States magistrate judges is unique within the American judiciary. United States magistrate judges are the first judges encountered in most federal civil or criminal cases and play an increasingly important role in the adjudication of virtually every case in United States district court. Yet, while the behavior of Article III judges has been the subject of active academic scrutiny, the behavior of magistrate judges, who are appointed to renewable eight-year terms by their Article III district judge colleagues, has largely been ignored. This paper reports the results of interviews of thirty-four magistrate judges and district judges, and through their experiences, explores whether their judicial decision-making relationship, a motivation for re-appointment, or elevation to Article III status influences their judicial behavior and that of their district judge colleagues. The answers to these questions are nuanced and dependent on variables not previously considered, and are best understood in the context of the remarkable evolution of the Magistrate Judges System, which has existed for less than fifty years.
Tuesday, June 21, 2016
Cody Jacobs (Freedman Fellow, Temple University Beasley School of Law) has published in New Mexico Law Review his article, If Corporations Are People, Why Can't They Play Tag?
The Supreme Court’s decision in Burnham v. Superior Court — despite producing a splintered vote with no opinion garnering a majority of the Court — made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient or “tag” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and used to be the primary method for determining whether an out of state defendant could be haled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions offairness.
This article argues that both the originalist and fairness-based tests proposed by the principal opinions in Burnham support allowing the assertion of tag jurisdiction over corporations and other entity defendants through in-state service on their officers. This article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The article also demonstrates that the fairness considerations that led four Members of the Court to endorse tag jurisdiction in Burnham apply with even greater force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons.
Professor Kevin M. Clermont (Cornell) has posted to SSRN his article, Limiting the Last-in-Time Judgment Rule.
A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, here and also abroad, where the first-in-time rule reigns. The Article resurfaces to rearrange the puzzle pieces into a simple reformulation—an elaboration but not an amendment—of the American law on inconsistent judgments.
Monday, June 20, 2016
Brooke Coleman has posted on SSRN a draft of her article One Percent Procedure, which is forthcoming in the Washington Law Review. Here’s the abstract:
In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.
This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.
As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.
Wednesday, June 15, 2016
Friday, June 10, 2016
Here are seven papers posted on SSRN in the last month relating to civil procedure issues:
James C. Spindler (University of Texas School of Law; McCombs School of Business, University of Texas at Austin)
Recent scholarship overwhelmingly contends that the fraud on the market securities class action has neither deterrent nor compensatory effect and should be cut back or even abandoned entirely. This scholarship largely focuses on two critiques: circularity, which holds that shareholder class action claimants are suing themselves, making compensation impossible; and diversification, which holds that fraud constitutes a diversifiable risk, such that diversified shareholders both gain and lose from fraud in equal measure and hence are not negatively impacted. These critiques are arguably the most important and widely-used theoretical development of the last two decades in securities law, and enjoy a broad consensus.
Unfortunately, these critiques are wrong. After tracing the evolution of these critiques, this paper demonstrates economically that, despite widespread acceptance, none of the principal claims of these critiques are correct. In particular: fraud on the market does indeed compensate defrauded purchasers despite circularity (under certain conditions, perfectly); and diversified investors do have expected losses from fraud and have incentives to undertake deadweight precaution costs. Further, the fraud on the market remedy deters both precaution costs and, under certain conditions, fraud itself. The critiques are fundamentally flawed, the academic consensus on fraud on the market is incorrect, and the panoply of reform proposals based on these critiques is without foundation. These critiques have fueled a trend of cutbacks and ongoing existential challenges to fraud on the market (as in Halliburton) that, in light of these results, should be rethought.
Friday, May 27, 2016
The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, held that forcing an employee to agree to bring any wage-and-hour claim through individual arbitration violated the National Labor Relations Act. Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016).
Epic sent an email to some employees with an agreement requiring them to bring wage-and-hour claims only through individual arbitration and to waive the right to participate in any class, collective, or representative proceeding. The email said that employees were “deemed to have accepted this Agreement” if they continued to work at Epic.
Plaintiff agreed at the time, but later sued Epic in federal court for violations of the overtime requirements of the Fair Labor Standards Act and Wisconsin law. Epic moved to compel individual arbitration.
Section 7 of the NLRA provides that “[e]mployees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The Seventh Circuit stated, “Section 7’s ‘other concerted activities’ have long been held to include ‘resort to administrative and judicial forums.’” The court held that “the phrase ‘concerted activities’ in Section 7 should be read broadly to include resort to representative, joint, collective, or class legal remedies.” Thus, “insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”
Further, the Federal Arbitration Act did not “save the ban on collective action.” The district court’s denial of the motion to compel arbitration was affirmed.
Wednesday, May 25, 2016
The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016. The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.
The report has three parts. First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer.
Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference. The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1). The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”
Third, the Advisory Committee:
(a) “describes proposals under active consideration for eventual publication and adoption,” including:
- a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
- studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
- “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and
(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:
- the “separate document” requirement of Rule 58;
- suggestions to assist pro se litigants;
- amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
- mandatory disclosure of third-party financing arrangements.
In future posts, I will discuss some of these developments in more detail.
Wednesday, May 18, 2016
The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week. In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.
A Brief Recap
Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth.
The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”
The Majority Opinion
You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it. Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing. The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately). The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.
Tuesday, May 17, 2016
Yesterday, the Supreme Court issued a unanimous decision in Merrill Lynch, Pierce, Fenner & Smith v. Manning. Justice Kagan wrote the opinion, with Justices Thomas (joined by Justice Sotomayor) concurred in the judgment and wrote separately. The Court held that the plaintiffs' state law causes of action did not "arise under" § 27 of the Securities Exchange Act, a statute that the Court held has the same "arising under" meaning as 28 U.S.C. § 1331.
Monday, May 16, 2016
The Senate Judiciary Committee will hold hearings on Wednesday, May 18, 2016, at 10:00 a.m., on the nominations of:
Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit
Paul Lewis Abrams, to be United States District Judge for the Central District of California
Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana
Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana
Winfield D. Ong, to be United States District Judge for the Southern District of Indiana
On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:
Ronald G. Russell, to be United States District Judge for the District of Utah
Inga S. Bernstein, to be United States District Judge for the District of Massachusetts
Stephanie A. Gallagher, to be United States District Judge for the District of Maryland
Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma
Scott L. Palk, to be United States District Judge for the Western District of Oklahoma
Monday, May 2, 2016
AALS Section on Civil Procedure Call for Papers – 2017 AALS Annual Meeting
The AALS Section on Civil Procedure invites papers for its program on “The Roberts Court and the Federal Rules of Civil Procedure” at the AALS Annual Meeting, on January 3-7, 2017 in San Francisco. The selected paper will be presented on Thursday, January 5, and the panel will be held from 8.30AM to 10.15AM.
This panel discussion will address jurisprudential developments related to the Federal Rules of Civil Procedure under the Roberts Court. The topics will include judicial interpretation of the rules, recurrent doctrinal themes within the rules, recent and proposed amendments to the rules, and the rule making process.
Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.
PAPER SUBMISSION PROCEDURE:
One paper will be selected for presentation at the AALS annual meeting. There is no formal requirement as to the form or length of proposals. However, more complete drafts will be given priority over abstracts, and the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper will be selected by the Section’s Executive Committee. Please submit only anonymous papers by redacting from the submission the author’s name and any references to the identity of the author. The title of the email submission should read: “Submission – 2017 AALS Section on Civil Procedure.”
Please email submissions to the Section Chair Simona Grossi, Professor of Law at: firstname.lastname@example.org on or before August 19, 2016.
Thursday, April 21, 2016
If you’re planning to attend the Second Annual Civil Procedure Workshop, you can register here. You’ll also find information about lodging, including a block of rooms that need to be reserved by June 14, 2016.
Looking forward to seeing folks in Seattle.
Wednesday, March 30, 2016
Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).
Tuesday, March 29, 2016
My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.