Thursday, February 6, 2014
Call for Nominations: 2015 AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award
Tomorrow, the Judicial Conference Committee on Rules of Practice and Procedure is holding its final public hearing on the recent set of proposed amendments to the Federal Rules of Civil Procedure. Here are some links:
- The draft of the proposed amendments
- Comments received (over 500 uploaded so far)
- Transcript of November hearing in Washington, D.C.
- Transcript of January hearing in Phoenix
The public comment period closes on February 15, 2014. You can submit comments here.
Monday, February 3, 2014
The annual conference of the Southeastern Association of Law Schools will be held August 1-7, 2014, at the Omni Hotel on Amelia Island, Florida. Registration opened this morning. Frequently, the conference hotel fills up quickly, so you should hurry.
The full program is here.
Glancing through the schedule, it looks like these are the programs that directly relate to Civil Procedure or Federal Courts (if I overlooked one, I apologize):
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.
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: 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 LaBelle, American University, Washington College 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
Speakers: 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)
Some lawyers and scholars believe Judges mischaracterize facts and law leading to confusion about the meaning of decisions as well as questions about the integrity of the judicial system. Yet the rhetoric of the profession may accepting fictions that mask problems and uncertainty caused by misstatements in judicial opinions. These fictions may also perpetuate the judiciary's apolitical image.
To what extent should scholars call attention to instances of judicial misinformation? To what extent should judges object to misleading statements in other judges' opinions? To what extent do compromises in appellate courts justify misstatements of prior doctrine? This panel will ask whether misleading statements in judicial opinions are a serious problem and, if so, what should be done about it.
Moderator: Professor Steve Wermiel, American University, Washington College of Law
Speakers: Professor Michael Dimino, Widener University School of Law; Professor Eric Segall, Georgia State University College of Law; Professor Mark Tushnet, Harvard Law School
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, Earle Mack 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 Maureen Weston, Pepperdine University School of Law; Professor Michael Yelnosky, Roger Williams University School of Law
Sunday, February 2, 2014
The keynote speaker will be Janet Napolitano.
Saturday, February 1, 2014
Suja Thomas' recent article, How Atypical, Hard Cases Make Bad Law (See, e.g., the Lack of Judicial Restraint in Wal-Mart, Twombly, and Ricci), was posted on SSRN some months ago, but has just been published at 48 Wake Forest L. Rev. 989.
Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.
Friday, January 31, 2014
Andrew Hull, law clerk to the Chief Administrative Law Judge of the Drug Enforcement Administration, has posted on SSRN his article, Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition.
Despite blatant jury misconduct that can result in an improper guilty-verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place. Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.
Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury. Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition. As will be discussed further, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the jury’s subjective deliberative process of reaching a verdict.
Part I of this paper describes the history of Rule 606(b) and its underlying policies. Part II discusses the origin of this rule — a case decided by the renowned Lord Mansfield — and questions its legitimacy as a bedrock principle in the common law tradition. Part III analyzes the policy of finality at the expense of overlooking certain juror misconduct in light of historical writings surrounding trial by jury. Finally, Part IV provides a suitable amendment to Rule 606(b) that embraces both a holistic understanding of a just trial by jury while also respecting the inviolate nature of the process of jury deliberation.
Today I submitted my comments on the proposed amendments to the Federal Rules of Civil Procedure. My comments do not yet appear on the government's web site, so in the meantime you can see them on my SSRN page here.
There are over 500 comments posted on Regulations.gov as of this morning, and many of the comments provide an excellent provision-by-provision analysis of the proposals. I chose instead to offer four more general observations in opposition to the proposals, as follows:
First, the most objective and reliable measure of "cost" before the [Advisory] Committee is contained in the 2009 study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time. Second, one objective and reliable measure of "delay" is case disposition time, a statistic maintained by the Administrative Office of the Courts. The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days. Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of "proportionality" in discovery and apply it frequently. Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do, in fact, favor defendants.
We reported on January 1 that approximately 86% of the commenters at that time opposed the amendments. As of January 21, approximately 80% opposed.
We also reported earlier that Professor Brooke Coleman testified in opposition to the proposal to abrogate Rule 84 on January 9 before the Advisory Committee in Phoenix. A transcript of the hearing for that day is now posted here.
The deadline for submitting comments is February 15, 2014.
Tuesday, January 28, 2014
Now is the time of year when faculty turn their minds to the spring (winter?) law review submissions season. Many may already be struggling with a crucial first question: When should I send out my article? After that decision is made, new questions loom: Did I send it out too late? Did I send it out too early? Is this journal already full? Has that journal started considering submissions yet? And even when the submissions process ends successfully, it may be a year—if not longer—before the article is published.
What if, instead, you could be done with the submission season in a matter of days, and have your article in print within a few months? If that sounds good, the Seton Hall Law Review has just the thing for you. Here’s the announcement:
The Seton Hall Law Review has two remaining spots for Articles in its Third Book of Volume 44, which will be published this June. Authors are encouraged to submit articles through ExpressO or via email (firstname.lastname@example.org) as soon as possible.
All topics are welcome, but authors with topics that would benefit from prompt publication are especially encouraged to submit. Because the edits for this issue will begin on February 17, the decision to accept or reject will be made very quickly, and an offer would need to be accepted within 3 days. The first two accepted offers will be chosen for publication.
Saturday, January 25, 2014
In my continuing efforts to make Bitcoin and other cryptocurrencies somehow relevant to this blog, I can report that Kanye West has sued Odaycoins.com, Coinye-Exchange.com, Amazon.com, and others in federal district court in Manhattan (Case Number 1:14-cv-00250, filed January 14, 2014). The suit is for trademark infringement, unfair competition, and dilution and right of publicity violations, arising from Defendants' "initial public offering of a 'block' of cryptocurrency called, interchangeably, COINYE WEST, COINYE and COYE on their website . . . Although Defendants could have chosen any name for their cryptocurrency, they deliberately chose to trade upon the goodwill associated with Mr. West by adopting names that are admitted plays on his name." (Complaint, pp. 1-2.)
In a civil procedure move that our students will likely find interesting, Judge Analisa Torres entered this order:
ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR PERMISSION TO USE EMAIL AS SERVICE OF PROCESS ON DEFENDANTS AND THIRD PARTIES: that Plaintiffs may serve all legal documents on defendants and third parties by email at email addresses that Plaintiffs ascertain to be valid and operational including, but not limited to the following email addresses: email@example.com; coinyewest@ gmail.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org, email@example.com; firstname.lastname@example.org. Such service shall constitute due and sufficient service and notice hereof.
The summonses were returned executed two days later.
Another update in the ongoing jurisdictional battles involving GlaxoSmithKline. Howard Bashman of How Appealing reports that the Third Circuit has allowed plaintiffs to appeal the lawfulness of GSK's diversity re-removals of state court Paxil personal injury cases more than one year after the cases were filed in state court.
On February 14-15, 2014, the University of Miami Law Review will sponsor a Symposium, Leading From Below, to explore the role of the federal district court judge. The Symposium will examine the scope and limitations of judicial discretion through four panels highlighting contexts where judges apply and affect public policy in their courtrooms. The Honorable Jack B. Weinstein is the keynote speaker. Click here for more information.
Friday, January 24, 2014
The different ways federal district courts provide settlement assistance to parties is the focus of a new study by the Federal Judicial Center (FJC). Eight district courts are participating in the study to be completed by late 2014. Read more . . .
Thursday, January 23, 2014
Last week the Supreme Court issued its decision in Daimler AG v. Bauman, a case covered earlier here and here and here. In many ways, the case resembles Kiobel v. Royal Dutch Petroleum, last Term's decision on the Alien Tort Statute (ATS). The Daimler plaintiffs had brought claims under the ATS against Daimler—a German company headquartered in Stuttgart—for human rights and other violations committed by Daimler's Argentinian subsidiary during the "dirty war" of the 1970s and 1980s. The Supreme Court's decision in Daimler, however, is all about personal jurisdiction, and it is not limited to the ATS context.
The Ninth Circuit had held that Daimler was subject to general personal jurisdiction in California based on the activities of its American subsidiary, MBUSA. Because it involves general jurisdiction, Daimler is an important follow-up to the Court's 2011 decision in Goodyear Dunlop v. Brown. Writing for a unanimous Court in Goodyear, Justice Ginsburg explained that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State."
In Daimler, all nine Justices conclude that it would be unconstitutional for California to exercise general jurisdiction over Daimler. Justice Ginsburg again writes for the Court, although Justice Sotomayor writes a separate concurrence that disagrees with much of Justice Ginsburg's reasoning. Parts of the decision—and some of the areas of disagreement—are harder than usual to follow because the parties either conceded or forfeited a number of potentially important points during the course of the litigation [see p.15]. That said, the most significant parts of the Daimler decision address three issues:
(1) When can a subsidiary's activities in the forum state be attributed to the parent for purposes of general jurisdiction?
(2) More generally, when is a corporation subject to general jurisdiction under the Goodyear standard?
(3) What role (if any) do the so-called "reasonableness" factors play in the general jurisdiction context?
Wednesday, January 22, 2014
In Medtronic, Inc. v. Mirowski Family Ventures, LLC, Mirowski licensed its patents relating to implantable heart stimulators to Medtronic, which makes medical devices. Later, Mirowski notified Medtronic that it believed some of Medtronic's new products infringed Mirowski's patents.
Medtronic brought a declaratory judgment action in federal court in Delaware, claiming that its products did not infringe Mirowski's patents and that the patents were invalid. The district court held that Mirowski, as patentee, bore the burden of proving infringement, even though it was the defendant, and Mirowski lost after a bench trial.
The Federal Circuit reversed, holding that Medtronic, the declaratory judgment plaintiff, bore the burden of proving infringement.
The Supreme Court, in a unanimous opinion by Justice Breyer, reversed. First the Court addressed federal jurisdiction. An amicus argued that in a DJA, in order to determine whether the action arose under patent law under Section 1338(a), the court must look to the action that the DJ defendant (the patentee, Mirowski) could have brought in the absence of a DJA. That action, argued the amicus, would be a state-law claim for breach of the license agreement.
The Court agreed that when determining declaratory judgment jurisdiction, courts look to the "character of the threatened action" to see whether it would necessarily present a federal question. However, the Court held that the threatened action would arise under federal patent law, because if Medtronic stopped paying royalties, Mirowski could terminate the license agreement and sue for patent infringement.
Turning to the burden of proof issue, the Court reversed the Federal Circuit:
It is well established that the burden of proving infringement generally rests upon the patentee. . . . We have long considered "the operation of the Declaratory Judgment Act" to be only "procedural." . . . And we have held that "the burden of proof" is a "'substantive' aspect of a claim." . . .
Taken together these three legal propositions indicate that, in a licensee's declaratory judgment action, the burden of proving infringement should remain with the patentee.
Thanks to Professor Ira Nathenson for bringing this case (which perhaps only a Civil Procedure professor could love) to my attention.
Friday, January 17, 2014
Professor Ruthann Robson on the Constitutional Law Prof Blog posted on a decision by the Washington State Supreme Court holding that a medical malpractice statute of limitations violated the state constitution. See http://lawprofessors.typepad.com/conlaw/2014/01/equality-and-statutes-of-limitations-in-the-washington-state-supreme-court-.html
Wednesday, January 15, 2014
Supreme Court: Appeal Time Starts Running on Merits Order Despite Pendency of Attorneys' Fees Motion
Here's one of those lawyer's procedural nightmares: an order you believe to be interlocutory actually turns out to be a final decision under 28 U.S.C. §1291, so that the 30-day appeal time has run before you've figured it out.
That's what happened in the third Supreme Court opinion on civil procedure issued this week, Ray Haluch Gravel Co. v. Central Pension Fund. Union-affiliated benefit funds (Respondent Funds) sued Petitioner Haluch, a landscape supply company, for unpaid contributions that the Funds claimed were required under a collective-bargaining agreement, ERISA, and the LMRA. The Funds also sought attorneys' and other fees under ERISA and the CBA itself.
After a bench trial, the district court entered judgment on June 17, 2011, ordering that the Funds were entitled to $26,897.41 in unpaid contributions, which was less than had been requested. The District Court did not rule on the Funds' separate motion for attorney's fees and other costs until July 25, 2011, when it awarded $34,688.15 in attorney's fees, which was about one-quarter of the amount requested.
On August 15, 2011, the Funds appealed from both orders. In the First Circuit, Haluch argued that the June 17 decision on the merits was a final decision under 28 U.S.C. §1291, so that the appeal from that decision, made more than 30 days later, was untimely. The Funds argued that there was no final decision until July 25, when the District Court rendered a decision on their request for attorney's fees and costs. Judge Selya agreed with the Funds, holding the appeal timely on all issues.
The Supreme Court, in a unanimous opinion by Justice Kennedy, reversed:
In Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), this Court held that a decision on the merits is a “final decision” under § 1291 even if the award or amount of attorney's fees for the litigation remains to be determined. The issue in this case is whether a different result obtains if the unresolved claim for attorney's fees is based on a contract rather than, or in addition to, a statute. The answer here, for purposes of § 1291 and the Federal Rules of Civil Procedure, is that the result is not different. Whether the claim for attorney's fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.
Tuesday, January 14, 2014
The Supreme Court has issued Mississippi ex rel. Hood v. AU Optronics Corp.
Justice Sotomayor wrote the opinion for a unanimous Court.
From the reporter's syllabus:
Petitioner Mississippi sued respondent liquid crystal display (LCD) manufacturers in state court,alleging violations of state law and seeking, inter alia, restitution for LCD purchases made by itself and its citizens. Respondents sought to remove the case to federal court. The District Court held that the suit qualified as a mass action under §1332(d)(11)(B)(i), but remanded the suit to state court on the ground that it fell within CAFA’s“general public” exception, §1332(d)(11)(B)(ii)(III). The Fifth Circuit reversed, agreeing with the District Court that the suit was a massaction but finding the general public exception inapplicable.
Held: Because Mississippi is the only named plaintiff, this suit does not constitute a mass action under CAFA.
The Supreme Court has issued Daimler AG v. Bauman.
Justice Ginsburg wrote the opinion for 8 justices. Justice Sotomayor concurred.
The Court held that Daimler, a foreign corporation, is not amenable to general jurisdiction in California for injuries allegedly caused by conduct that took place entirely outside the United States.
Friday, January 10, 2014
The Eighth Circuit allowed a remittitur of damages in a personal injury case but otherwise upheld the plaintiff's verdict in Tedder v. American Railcar Industries, Inc., No. 13-1063 (8th Cir. Jan. 9, 2014).
Plaintiff's back was injured when a golf cart struck a table he was sitting on. Defendant conceded negligence but disputed causation, pointing to plaintiff's earlier back injuries.
The jury awarded plaintiff over $2 million, twice what his lawyer suggested. The trial court remitted the award but otherwise denied defendant's motion for a new trial:
Sitting through the trial, one thing became very obvious: the jury disliked defense counsel. Lead counsel, who hailed from St. Louis, Missouri [the case was tried in Jonesboro, Arkansas], was extremely abrasive to everyone in the courtroom. During the trial, a number of the jurors turned away when defense counsel addressed the witnesses and some routinely “rolled their eyes” when counsel spoke. While there is no doubt that the jury had sufficient evidence to find ARI liable, it is clear that the verdict was meant not only to compensate Tedder for his injuries, but also to send a message to defense counsel that their behavior was unacceptable.
The Eighth Circuit affirmed:
[T]here would be an inherent unfairness in subjecting Tedder to a new trial based solely on the abrasive behavior of ARI’s counsel. We have previously held that a civil litigant may not seek a new trial based on the alleged deficiency of his own counsel. Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988) (“[The] remedy for any ineffective assistance of counsel [in a civil case] is a suit against [the party’s] attorney for malpractice, not a new trial . . . .”). That principle applies with equal force here, where the grant of a new trial to the offending party would deprive its blameless adversary of a well-won victory. While these circumstances are perhaps not as prejudicial as those in Hale, where a new trial would have been the fourth between the parties, we should also remember who the plaintiff in this case is. Tedder is not a corporation with perpetual life and an army of in-house litigators; he is an aging, disabled man who has spent the last four years of his life in litigation. To scuttle Tedder’s victory on the merits solely because of his adversary’s deficiencies would severely prejudice him for reasons that he, along with many others, would find hard to fathom. Thus, we conclude that the district court did not err in denying the motion for new trial.