Thursday, November 19, 2015

Thornburg on Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative

Professor Elizabeth Thornburg has posted on SSRN her article, Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative.  The article was written for the Clifford Symposium this past spring and is forthcoming, along with other articles from the symposium, in DePaul Law Review early next year.


In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.


November 19, 2015 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Friday, November 13, 2015

Moore on Spokeo, Inc. v. Robins

I have recently posted on SSRN an article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court." The article is forthcoming in the newly-established St. Thomas Journal of Complex Litigation, which is currently welcoming submissions.


The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (Mem.) (2015) casts a shadow on the long-accepted constitutional principle that Congress has the authority to enact a statute to regulate corporations’ behavior for the public good, and to provide a private right of action to a person as to whom the statute is violated.  That right of action often provides for the award of a minimum amount of statutory damages as an alternative or in addition to actual damages. 

Congress has enacted numerous such statutes, including the one at issue in Spokeo, the Fair Credit Reporting Act (“FCRA”), which was passed forty-five years ago.  Suddenly, within the last ten years, corporate litigation activists have invented a new argument to avoid regulatory statutes that provide for statutory damages.  They claim that a “mere” statutory violation is an “injury in law” rather than the “injury in fact” required for Article III standing.  And they are launching a frontal assault on Congress’s constitutional authority to enact any statute that provides a private right of action for its violation, accusing Congress of thereby violating Article III by “creating standing.” 

Corporate litigation activists then apply to a class representative the argument that the violation of a person’s statutory rights is not an “injury in fact,” and call the result a “no-injury class.”  The appellation “no-injury class” is another misleading verbal weapon of recent vintage.

This article hopes to makes three small contributions to the burgeoning literature on Spokeo, which at this writing has not yet been decided.  First, the Question Presented to the Supreme Court is misleading and overbroad.  It implies that the plaintiff in Spokeo, Thomas Robins, has been found not to have suffered any “concrete harm,” but the case is still at the pleading stage.  Thus, the question is simply whether Robins’s complaint contains sufficient allegations of injury, assumed to be true on a motion to dismiss, to establish Article III standing.  Further, the Question Presented implies that a ruling involving the FCRA (the statute at issue in Spokeo) will be generalizable to all other statutes that create a private right of action and allow statutory damages, without recognizing the many variations in these statutes’ language and operation.

Second, the article sketches the historical legal difference between the words “injury” and “damage.”  “Injury” connotes the violation of one’s legal right, even if one has not sustained any actual harm, while “damage” means a loss or harm, even if one has no legal right to sue.  The Supreme Court has adhered to these meanings since Marbury v. Madison.  Given that historical distinction, the term “injury in fact” is confusing and somewhat self-contradictory: under the definition of “injury” as the violation of a legal right, the term “injury in fact” is akin to “violation of a legal right in fact.”  Further, the petitioner Spokeo’s newly-discovered phrase “injury in law” – which has never been used in a single United States Supreme Court opinion -- is redundant.  Under the definition of “injury” as the violation of a legal right, the phrase “injury in law” is akin to “legal right in law.”  But however nonsensical, the epithet “injury in law” serves a useful purpose for corporate activists: it minimizes, even ridicules, so-called “technical,” “trifling” statutes that regulate corporate behavior.   

Finally, the petitioner Spokeo and its numerous business-oriented amici could have made the very same argument they are making in Spokeo – that the violation of the Fair Credit Reporting Act is not itself an “injury in fact” – only nine years ago in Safeco Insurance Co. v. Burr, 551 U.S. 47 (2007), but did not.  In Safeco, the putative class alleged that insurers Safeco and GEICO had not complied with the FCRA’s requirement of sending the class members notice of an “adverse action” when the insurers did not charge them the lowest available insurance rate because of a less-than-perfect credit report.  The defendants’ amici repeatedly stated that the plaintiffs in Safeco had not alleged any “actual harm” or “actual damages” even though they sought $1,000 in statutory damages for each member of the class (as the FCRA allows).  Thus, Safeco presented exactly the same alleged “no-injury” situation, under exactly the same statute, as Spokeo.  Yet the Safeco petitioners and their amici (four of which are also amici in Spokeo) failed to argue that the class representatives lacked Article III standing or that violation of the FCRA was not an “injury in fact.”  It seems fair to ask why not, if the Article III argument is so compelling.  One might speculate that the reason is that corporate litigation activists have only recently contrived the “statutory-violation-is-not-an-injury-in-fact” argument.                        

November 13, 2015 in Class Actions, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Saturday, November 7, 2015

Wasserman on Fletcherian Standing, Merits, and Spokeo, Inc. v. Robins

Professor Howard Wasserman has posted on SSRN his essay, Fletcherian Standing, Merits, and Spokeo, Inc. v. Robins.


This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of allegedly false consumer-credit information in violation of a federal statute, illustrates the wisdom and benefits of Fletcher's approach.

November 7, 2015 in Class Actions, Recent Scholarship, Standing | Permalink | Comments (1)

Monday, November 2, 2015

Today’s SCOTUS Oral Argument in Spokeo, Inc. v. Robins

The Supreme Court hears oral argument today in Spokeo, Inc. v. Robins, which presents the question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

For our earlier coverage, see here, here, and here. You should also check out Amy Howe’s preview of the argument for SCOTUSblog and the Vanderbilt Law Review’s En Banc Roundtable on the case, available here.

UPDATE: The transcript of the oral argument has now been posted.


November 2, 2015 in Federal Courts, Recent Decisions, Recent Scholarship, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, October 30, 2015

Note on FRCP 60(b)(5) and Institutional Reform Litigation

In the latest issue of the Yale Law Journal is a note by Mark Kelley, Saving 60(b)(5): The Future of Institutional Reform Litigation. Here’s the abstract: 

Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Medicaid. The legal standards governing federal courts’ power to modify or dissolve institutional reform decrees, a crucial tool that can be used to safeguard or sabotage these decrees’ continued vitality, are rooted in Federal Rule of Civil Procedure 60(b)(5). In Horne v. Flores, the Supreme Court tweaked Rule 60(b)(5) to make it easier for state and local institutions to modify or dissolve the institutional reform decrees to which they are bound. This Note argues that Horne has introduced considerable confusion and divergence among lower court approaches to the modification and dissolution of reform decrees, and has made it too easy for institutional defendants to escape federal oversight. At the same time, however, Horne rested on legitimate policy critiques of institutional reform litigation. This Note attempts to chart a middle ground between the doctrine’s detractors and defenders by making concrete proposals about how courts should resolve the confusion introduced by Horne. These recommendations would align the institutional reform doctrine with the policy critiques highlighted by the Court in Horne while still allowing for the effective vindication of constitutional rights.





October 30, 2015 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, October 22, 2015

Dodson & Pucillo on Diversity Jurisdiction

Scott Dodson and Philip Pucillo have posted on SSRN a draft of their recent article, Joint and Several Jurisdiction, which will be published in the Duke Law Journal. Here’s the abstract:

Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants — one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive and unsettled. We identify and explore two possible answers, each based on a different theory of subject-matter jurisdiction. The first we denote “joint jurisdiction ”— an all-or-nothing theory — under which the presence of a nondiverse claim contaminates the whole case and deprives the court of diversity jurisdiction over diverse claims. The second we denote “several jurisdiction” — a claim-by-claim theory — under which the court lacks subject-matter jurisdiction over the nondiverse claim but always had, and continues to have, diversity jurisdiction over the diverse claim. We show that each theory boasts jurisprudential support, leaving the doctrine ambivalent on a question that affects thousands of cases filed in federal court each year. We then offer a way to reconcile these seemingly incompatible theories and precedent: manipulation of the nonjurisdictional time-of-filing rule. Finally, we discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action.


October 22, 2015 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, October 14, 2015

Klonoff on Class Actions in 2025

Bob Klonoff has posted on SSRN a draft of his article, Class Actions in the Year 2025: A Prognosis, which will be published in the Emory Law Journal. Here’s the abstract:

In this Article, I reflect on what the federal judiciary has done in recent years, and I attempt to predict what the class action landscape will look like a decade from now. My predictions fall into several categories:

First, I discuss whether the basic class action framework — Federal Rule of Civil Procedure 23 — is likely to be revamped in the next decade. I predict that there is little chance that the basic structure of Rule 23 will change. Calls by some scholars to rewrite Rule 23 will not make headway. The only caveat to this prediction is that either Congress or the Supreme Court could repudiate so-called no injury classes — i.e., classes in which some unnamed class members suffered no harm — a result that would not change the text of Rule 23 but would adversely impact certain kinds of class actions, such as consumer cases.

Second, I examine the likely state of class action jurisprudence in the year 2025. In that regard, I make several predictions: Securities class actions will continue to flourish, but consumer, employment, and personal injury class actions will continue to decline. The Supreme Court will curtail the ability of plaintiffs to establish liability or damages through expert statistical sampling (referred to frequently as “trial by formula”). The “ascertainability” requirement imposed by the Third Circuit will be repudiated by the Supreme Court or by the Third Circuit itself. The Supreme Court will conclude, as have numerous circuits, that an unaccepted offer of judgment to a class representative pursuant to Federal Rule of Civil Procedure 68 is a legal nullity and does not moot the individual’s claim or the putative class action. Defendants will advance several arguments against class certification that, until now, have had only limited success. These will include expansive applications of Rule 23’s typicality, predominance, and superiority requirements. Although defendants will not be fully successful with these arguments, they will succeed in erecting some additional barriers to class certification. During the next decade, courts addressing class certification and the fairness of settlements will give greater weight to allegations of unethical behavior by class counsel and by counsel representing objectors to settlements. The future of class actions will ultimately lie in the hands of a small number of appellate court judges who have a special interest and expertise in aggregate litigation.

Third, I focus on the administration and resolution of class actions and offer two predictions: (1) by 2025, a significantly larger number of class action cases will go to trial than at any time since 1966; and (2) technological changes will fundamentally alter the mechanics of class action practice, offering more sophisticated tools for notice, participation by class members, and distribution of settlement proceeds.



October 14, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Tuesday, October 13, 2015

Ardia and Klinefelter: Empirical Study of Privacy and Court Records

David S. Ardia and Anne Klinefelter of the University of North Carolina-Chapel Hill School of Law have posted on SSRN their article, Privacy and Court Records: An Empirical Study, which is forthcoming in the Berkeley Technology Law Journal.


As courts, libraries, and archives move to make court records available online, the increased ease of public access raises concerns about privacy. Little work has been done, however, to study how often sensitive information appears in court records and the context in which it appears. This Article fills this gap by analyzing a large corpus of briefs and appendices submitted to the North Carolina Supreme Court from 1984 to 2000. Based on a survey of privacy laws and privacy scholarship, we created a taxonomy of 140 types of sensitive information, grouped into thirteen categories. We then coded a stratified random sample of 504 court documents in order to determine the frequency of appearance of each sensitive information type and to identify relationships, patterns, and correlations between information types and various case and document characteristics. 

In this Article we present several important findings. First, court records vary substantially in the types and frequency of sensitive information they contain. Sensitive information in seven categories — “Location,” “Identity,” “Criminal Proceedings,” “Health,” “Assets,” “Financial Information,” and “Civil Proceedings” — appeared much more frequently than the other categories in our taxonomy. Second, information associated with criminal proceedings, such as witness and crime victim names, is pervasive in court records, appearing in all types of cases and records. Third, criminal cases have disproportionately more sensitive information than civil or juvenile cases. Fourth, appendices are generally not quantitatively different from legal briefs in terms of the frequency and types of sensitive information they contain, a finding that goes against the intuition of many privacy advocates. Fifth, there were no overarching trends in the frequency of sensitive information during the seventeen-year period we studied. 

Although we found a substantial amount of sensitive information in the court records we studied, we do not take a position regarding what information, if any, courts or archivists should redact or what documents should be withheld from online access or otherwise managed for privacy protection. These largely normative questions must be answered based on a careful balancing of the competing public access and privacy interests. Nevertheless, we expect that this highly granular view of the occurrence of sensitive information in these North Carolina Supreme Court records will help policymakers and judges evaluate the potential harms to privacy interests that might arise from online access to court records. We also hope that scholars will draw on our taxonomy and empirical data to develop and ground normative arguments about the proper approach for balancing government transparency and personal privacy.

October 13, 2015 in Recent Scholarship | Permalink | Comments (0)

Tuesday, September 29, 2015

Articles from Symposium on Judicial Education Now Available

Last fall, the University of Missouri held a symposium entitled "Judicial Education and the Art of Judging:  From Myth to Methodology."  The articles from this symposium are now available at the University of Missouri scholarship website and will shortly be up on Westlaw and LexisNexis. 


Judicial Education and Regulatory Capture: Does the Current System of Educating Judges Promote a Well-Functioning Judiciary and Adequately Serve the Public Interest? --S. I. Strong

What Judges Want and Need: User-Friendly Foundations for Effective Judicial Education --Duane Benton and Jennifer A.L. Sheldon-Sherman

Judicial Bias: The Ongoing Challenge --Kathleen Mahoney

International Arbitration, Judicial Education, and Legal Elites --Catherine A. Rogers

Towards a New Paradigm of Judicial Education --Mary R. Russell

Writing Reasoned Decisions and Opinions: A Guide for Novice, Experienced, and Foreign Judges --S. I. Strong

Judging as Judgment: Tying Judicial Education to Adjudication Theory --Robert G. Bone

Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role --Chad M. Oldfather

Educating Judges—Where to From Here? --Livingston Armytage

Judicial Education: Pedagogy for a Change --T. Brettel Dawson

Hat tip: S.I. Strong

September 29, 2015 in Conferences/Symposia, Recent Scholarship | Permalink | Comments (0)

Friday, September 25, 2015

Means and Seiner on Navigating the Uber Economy


Professors Benjamin Means and Joseph Seiner (University of South Carolina School of Law) have posted on SSRN their essay, "Navigating the Uber Economy," forthcoming in U.C. Davis Law Review.


In litigation against ride-sharing companies Uber and Lyft, former drivers have alleged that they were misclassified as independent contractors and denied employment benefits. The companies have countered that they do not employ drivers and merely license access to a platform that matches those who need rides with nearby available drivers. At stake are the prospects, not only for Uber and Lyft, but for a nascent, multi-billion dollar "on-demand" economy.

Unfortunately, existing laws fail to provide adequate guidance regarding the distinction between independent contractors and employees, especially when applied to the hybrid working arrangements characteristic of a modern economy. Under the Fair Labor Standards Act and analogous state laws, courts consider several factors to assess the "economic reality" of a worker's alleged employment status; yet, there is no objective basis for prioritizing those factors.

This Essay argues that the classification of workers as independent contractors or employees should be shaped by an overarching inquiry: how much flexibility does the individual have in the working relationship? Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule. Our approach is novel and would provide an objective basis for adjudicating classification disputes, especially those that arise in the context of the on-demand economy. By reducing legal uncertainty, we would ensure both that workers receive appropriate protections under existing law and that businesses are able to innovate without fear of unknown liabilities.

September 25, 2015 in Class Actions, Current Affairs, In the News, Recent Scholarship | Permalink | Comments (0)

Thursday, September 17, 2015

Recent Papers on Article III Standing; More Academic Amici Favoring Respondent in Spokeo Case

In addition to Restitution and Remedies Scholars, two other groups of scholars filed amicus briefs in the Supreme Court in Spokeo, Inc. v. Robins on the side of Respondent:

Information Privacy Law Scholars 

Public Law Professors


Academics filed no amicus briefs in favor of Petitioner Spokeo. 


Two other articles on Article III standing have recently been posted on SSRN:

'Spooky Action at a Distance': Intangible Injury in Fact in the Information Age by Seth F. Kreimer of University of Pennsylvania Law School.  Abstract:

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of "Psychic Injury." Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and space free from spooky entities like "Psychic Injury."

Albert Einstein famously took the position that quantum mechanics could not be a proper and complete theory on the ground that "[P]hysics should represent a reality in time and space, free from spooky actions at a distance." The problem that ultimately overtook Einstein's argument was that experimental results vindicating quantum mechanics stubbornly continued to appear in the journals. The burden of this paper is to demonstrate that spooky "injuries in fact" involving information have stubbornly continued to appear in United States Reports. It demonstrates that the Court has regularly adjudicated the controversies of the information age: disputes regarding illicit acquisition of information, denial of access to information, improper exposure to information and intellectual property. And it argues that the Court will continue to do so.

These adjudications fatally undermine an account of Article III that insists on "direct" "tangible" and "palpable" injuries to physical or economic interests as the price of admission to the federal courthouse, and profoundly alter notions of "particularized" and "imminent" injury. Information is by nature intangible, and information plays an increasingly dominant role in our social, economic, political and cultural life. Information is largely non-rivalrous and non-excludable. Violations of duties regarding information thus regularly result in injuries that are "general" rather than "particularized." And, with the advent of the Internet, informational harm is pandemically "imminent": information can be spookily and instantaneously "present" at opposite ends of the country, or of the globe.


Article III Standing for Private Plaintiffs Challenging Greenhouse Gas Regulations by Bradford C. Mank of University of Cincinnati Law School.  Abstract:

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may never bring climate change suits because such suits are generalized grievances and the Massachusetts exception for GHG suits applies only to states. However, dissenting from the Ninth Circuit’s denial of a rehearing en banc, three judges argued that the panel’s opinion was overly broad in interpreting the Massachusetts decision to deny standing rights to all non-state GHG plaintiffs. In recent district court decisions, two different federal judges concluded that private plaintiffs may have Article III standing to challenge the government’s regulation of climate change or greenhouse gases. In Center for Biological Diversity v. EPA, the Western District of Washington held the plaintiff suffered concrete standing injuries from the defendant EPA’s approval of Washington’s and Oregon’s decisions not to identify any waters experiencing ocean acidification as impaired under the Clean Water Act (CWA). In distinguishing the Washington Environmental Council decision, the district court concluded that the plaintiffs demonstrated local GHG impacts, and local mitigation efforts could partially redress the injuries to their members. In Murray Energy Corporation v. Gina McCarthy, Administrator of EPA, the Northern District of West Virginia concluded that that the plaintiffs sufficiently established that the EPA violated its duty under the Clean Air Act (CAA) to examine the employment impacts of its enforcement and regulations under the Act on employment in the coal mining industry to have standing. The Murray decision’s focus on employment injuries could be used to provide standing in a challenge to GHG regulations. While there is an argument that expanding standing to non-state GHG plaintiffs could flood the federal courts with too many suits, courts can manage the number of climate change suits by requiring a meaningful demonstration of a connection between GHG emissions and harms to the plaintiffs, and by giving substantial deference to reasonable government regulatory policies in this area.

September 17, 2015 in Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 9, 2015

Meier on the Reviewability of Denied Twombly Motions

Luke Meier (Baylor University Law School) has posted on SSRN his latest article, The Reviewability of Denied Twombly Motions, forthcoming in The University of Cincinnati Law Review.


This article argues in favor of permitting appellate review of a denied Twombly motion when a defendant appeals an adverse final judgment. With regard to denied summary judgment motions, the question of post-judgment appellate review has caused considerable confusion in the last few years. This article aims to prevent this confusion from developing with regard to denied Twombly motions and, in the process, to clear up the existing uncertainty with regard to appellate review of denied summary judgment motions. The critical step towards this goal is distinguishing between “mootness” and “forfeiture.” Because a denied Twombly motion is not rendered moot by subsequent proceedings in the district court, and because a defendant does not forfeit appellate review of a denied Twombly motion, appellate courts should assess the propriety of the denial of a Twombly motion in an appeal from a final judgment. This conclusion might appear, on first impression, outrageous. But it is the proper conclusion under existing rules governing the availability of appellate review.

September 9, 2015 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Friday, August 21, 2015

Study Suggests Lengthier Appellate Briefs More Successful

Appearing in the current issue of the Journal of Empirical Legal Studies is an article by Gregory C. Sisk and Michael Heise entitled "'Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals."


The warp and woof of U.S. law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. Although the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the U.S. Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.

August 21, 2015 in Recent Scholarship | Permalink | Comments (0)

Thursday, August 13, 2015

Spencer on Rationalizing Cost Allocation in Civil Discovery

A. Benjamin Spencer, University of Virginia School of Law, has posted on SSRN his article, "Rationalizing Cost Allocation in Discovery," forthcoming in the Review of Litigation.


A movement is afoot to revise the longstanding presumption that in civil litigation, the producing party bears the cost of production in response to discovery requests. A proposed amendment to Rule 26(c) - slated to take effect in December 2015 - makes explicit the authority of courts to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next - an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated - on constitutional and policy grounds - by pro-business interest groups and advocates before the Advisory Committee on Civil Rules in letters urging them to place this issue on its agenda. 

Given indications that the Advisory Committee will indeed take up the issue of cost shifting in the context of civil discovery, now is an apt time to evaluate the producer-pays rule and the claims of those urging its demise. Specifically, to what extent is the producer-pays rule imposing costs on parties in litigation; are there fairness, policy, or constitutional considerations that warrant a revisiting of the rule; and, ultimately, what would a rational approach to discovery cost allocation look like? This article explores the current landscape of discovery expenses in the federal system and the rules governing their allocation, explores the various purported difficulties with a producer-pays approach, and then builds on these discussions to imagine a rational approach to discovery cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.


August 13, 2015 in Discovery, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 11, 2015

Coleman on "The Efficiency Norm" in Civil Litigation

Brooke Coleman, Seattle University School of Law, has posted on SSRN her recent paper, "The Efficiency Norm," forthcoming in Boston College Law Review.


Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that the efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led them to profoundly shift key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis — one that weighs both the benefits and costs of making litigation cheaper — these now-dominant civil litigation presumptions are dangerous and unwarranted because, among other things, they further de-democratize civil litigation. Finally, the Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.

August 11, 2015 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, July 27, 2015

Levy on Huq on the Rationing of Constitutional Remedies

This month’s essay on the Courts Law section of JOTWELL is Rationing Constitutional Justice by Marin Levy. Marin reviews Aziz Huq’s recent article, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. (forthcoming 2015). 



July 27, 2015 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, July 16, 2015

Note on Class Ascertainability

The Yale Law Journal has published a note by student Geoffrey C. Shaw on Class Ascertainability.  It may be of interest given the Civil Rules Advisory Committee's recent report to the Standing Committee that "ascertainability" perhaps should be added to the list of class action topics currently being studied by the Rule 23 Subcommittee.

The May 2, 2015 Advisory Committee Report (available at p. 178 of the Standing Committee's Agenda Book for its May 2015 meeting) states:

Recently there has been much concern about what must be shown to demonstrate that a proposed class is “ascertainable,” largely resulting from Third Circuit decisions.  This concern seems to be limited to Rule 23(b)(3) class actions.  See Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2014) (ascertainability is not required in a class action seeking only injunctive relief).  And the Third Circuit treatment of the issue may be evolving.  See, e.g., Byrd v. Aaron’s Inc., ___ F.3d ___, 2015 WL 3887938 (3d Cir., April 16, 2015), in which the panel stated that “it is necessary to address the scope and source of the ascertainability requirement that our cases have articulated” and added that “[w]e seek here to dispel any confusion.”  (Judge Rendell, concurring in reversal of the district court’s denial of certification, suggested that “it is time to retreat from our heightened ascertainability requirement in favor of following the historical meaning of ascertainability under Rule 23.”)

The Subcommittee intends to examine this issue; it is not certain at present whether a rule change might be indicated. 

The abstract for the Note in the Yale Law Journal on Class Ascertainability is:

ABSTRACT. In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.

This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.


July 16, 2015 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Wednesday, July 15, 2015

Wasserman on Mixed Signals on Summary Judgment

Howard Wasserman has posted on SSRN  his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.


This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.

July 15, 2015 in Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, July 14, 2015

Burbank and Farhang on Class Actions and the Counterrevolution Against Federal Litigation

Stephen B. Burbank and Sean Farhang have posted on SSRN their article, Class Actions and the Counterrevolution Against Federal Litigation.


In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.

July 14, 2015 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, June 29, 2015

Bitcoin and Civil Procedure

Max Raskin, an NYU law student, has posted on SSRN his article Realm of the Coin: Bitcoin and Civil Procedure, published in 20 Fordham J. of Corporate & Financial Law, No. 4 (2015). 


Bitcoin is a private currency issued and governed by a global network of computers. Thus far, the majority of legal cases involving bitcoin have been criminal prosecutions or disputes between bitcoin companies. If bitcoin or some iteration continues to grow, courts will need to craft rules of civil jurisdiction. This paper is the first attempt to apply existing rules of civil procedure to bitcoin.

Bitcoins ought be treated as tangible property for the purposes of jurisdiction. Although they have an incorporeal form, as a practical matter, courts are able to site bitcoins to a single location and thus should do so. This allows courts to apply existing due process and comity jurisprudence.

June 29, 2015 in Recent Scholarship | Permalink | Comments (0)