Wednesday, January 18, 2017
I have posted my latest article, Trade Secrets, Extraterritoriality, and Jurisdiction to SSRN.
Twenty years ago, Congress passed the Economic Espionage Act of 1996 which criminalized trade secret misappropriation and authorized broad domestic and international enforcement measures against trade secret misappropriation. At the time of its passage, the EEA was lauded by the business community, but it was heavily criticized by scholars who worried that the statute was too broad and too protectionist. In the intervening years, the business sector renewed its complaints about the insufficiency of U.S. trade secret laws, and scholars continued to express skepticism about using criminal law to enforce trade secret policy. Congress recently passed a new statute, the Defend Trade Secrets Act of 2016, which creates a federal private right of action under the EEA for trade secret misappropriation and economic espionage, and authorizes a variety of remedies including injunctions, damages, and seizure of property.
In 2003, I published a student note examining the EEA and arguing that the broad statutory language and potential for extraterritorial enforcement created problems for the United States given our commitments to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS agreement”). Given the recent legislative efforts to expand the EEA to include private enforcement, it is time to revisit and update research on the EEA. This Article examines the new problems and challenges private enforcement of the EEA might present. In particular, this Article considers whether the problems of extraterritorial criminal enforcement extend to the civil context.
This Article proceeds in three parts. Part I gives a brief overview of the DTSA and its relationship to the EEA. Part II demonstrates that expanding the EEA to include civil enforcement creates personal jurisdiction problems. Part III argues that the doctrine of forum non conveniens presents yet another barrier to DTSA proceedings in U.S. courts. The Article concludes by noting that the jurisdictional necessities of civil enforcement under the DTSA set businesses on a collision course with the direction of personal jurisdiction and forum non conveniens law for which they have largely advocated the past few decades. In other words, viewing the DTSA through a jurisdictional lens reveals some of the underlying, understated, and confused purposes of the statute.
Thursday, January 12, 2017
Curtis Bradley and Neil Siegel have published Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017). Here’s the abstract:
Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support nonlegal but obligatory norms of proper governmental behavior—something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957–1958, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows—based on internal Executive Branch documents that have not previously been discovered or discussed in the literature—how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of historical gloss and conventions for the judicial separation of powers more generally.
Wednesday, January 11, 2017
David Jaros (University of Baltimore) and Adam Zimmerman (Loyola LA) have posted Judging Aggregate Settlement to SSRN.
While courts historically have taken a hands-off approach to settlement, judges across the legal spectrum have begun to intervene actively in “aggregate settlements”—repeated settlements between the same parties or institutions that resolve large groups of claims in a lockstep manner. In large-scale litigation, for example, courts have invented, without express authority, new “quasi-class action” doctrines to review the adequacy of massive settlements brokered by similar groups of attorneys. In recent and prominent agency settlements, including ones involving the SEC and EPA, courts have scrutinized the underlying merits to ensure settlements adequately reflect the interests of victims and the public at large. Even in criminal law, which has lagged behind other legal systems in acknowledging the primacy of negotiated outcomes, judges have taken additional steps to review iterant settlement decisions routinely made by criminal defense attorneys and prosecutors.
Increasingly, courts intervene in settlements out of a fear commonly associated with class action negotiations—that the “aggregate” nature of the settlement process undermines the courts’ ability to promote legitimacy, loyalty, accuracy and the development of substantive law. Unfortunately, when courts step in to review the substance of settlements on their own, they may frustrate the parties’ interests, upset the separation of powers, or stretch the limits of their ability. The phenomenon of aggregate settlement thus challenges the judiciary’s duty to preserve the integrity of the civil, administrative, and criminal justice systems.
This Article maps the new and critical role that courts must play in policing aggregate settlements. We argue that judicial review should exist to alert and press other institutions—private associations of attorneys, government lawyers, and the coordinate branches of government—to reform bureaucratic approaches to settling cases. Such review would not mean interfering with the final outcome of any given settlement. Rather, judicial review would instead mean demanding more information about the parties’ competing interests in settlement, more participation by outside stakeholders, and more reasoned explanations for the trade-offs made by counsel on behalf of similarly situated parties. In so doing, courts can provide an important failsafe that helps protect the procedural, substantive, and rule-of-law values threatened by aggregate settlements.
Thursday, January 5, 2017
Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).
Wednesday, December 28, 2016
Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:
This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.
This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.
This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.
Tuesday, December 27, 2016
Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).
Monday, December 19, 2016
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, Discovery Costs and Default Rules. Jay reviews a recent paper by Brian Fitzpatrick and Cameron Norris, One-Way Fee Shifting After Summary Judgment.
Tuesday, December 13, 2016
Shirin Sinnar has posted on SSRN a draft of her article, The Lost Story of Iqbal, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:
The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal. It first retells the story of Iqbal himself — the Pakistani immigrant and cable repair technician whom the opinion presented only categorically as a foreigner, a terrorist suspect, and, at best, a victim of abuse. Drawing on the author’s interview of Iqbal in Lahore, Pakistan, in 2016 and other available evidence, the Article reconstructs the facts of Iqbal’s immigrant life, his arrest and detention in the wake of the September 11 attacks, and the enduring consequences of being labeled a suspected terrorist. Second, the Article recounts the role of race and religion in the post-9/11 immigrant detentions, challenging the Court’s account of the detentions as supported by an “obvious” legitimate explanation. Juxtaposing the lost story of Iqbal and the detentions against the Court’s decision ultimately sheds light on the ability of procedural decisions to propagate particular normative visions and understandings of substantive law without the full recognition of legal audiences. Nearly fifteen years after the September 11 attacks and the ensuing mass detentions, Iqbal demands attention to its substance — to the profound questions of race, law, and security that have become even more urgent in the face of new calls for the exclusion of individuals on racial and religious grounds.
Thursday, December 8, 2016
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).
Monday, November 28, 2016
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.
Monday, November 14, 2016
Ed Cheng has posted on SSRN a draft of his article, Detection and Correction of Legal Publication Bias. Here’s the abstract:
Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.
Thursday, November 10, 2016
Friday, October 28, 2016
Bob Bone has posted on SSRN a draft of his article Tyson Foods and the Future of Statistical Adjudication, which will be published in the North Carolina Law Review. Here’s the abstract:
Statistical adjudication, the practice of using sampling and other statistical techniques to adjudicate large case aggregations, is highly controversial today. In all its forms, statistical adjudication decides cases on the basis of statistical extrapolation rather than case-specific facts. For example, a court adjudicating a large class action might try a random sample of cases, average the trial verdicts, and give the average to all the other cases in the aggregation. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court rejected a sampling proposal as inconsistent with the Rules Enabling Act, calling it “Trial by Formula.” In the wake of this decision, at least one commentator declared the death of statistical adjudication.
In an important decision last term, Tyson Foods, Inc. v. Bouaphakeo, the Court changed course and breathed new life into statistical adjudication. It upheld the use of sampling to establish liability and damages in a Fair Labor Standards Act case and indicated that the procedure might be available in other cases as well. The Court’s opinion is far from clear, however, and offers little guidance to lower court judges trying to determine when and how to use the procedure in future cases.
This Article explores the impact of Tyson Foods on the future of statistical adjudication. Part I defines statistical adjudication and distinguishes it from statistical evidence. Part II shows that Tyson Foods is a case of statistical adjudication, not statistical evidence. Part III takes a closer look at the Court’s opinion in an effort to tease out factors and principles to guide future use. Part IV explores reasons for the vague discomfort with the procedure, reasons that seem to be tied to nagging doubts about the legitimacy of the procedure. Critics worry that statistical adjudication is too strange a fit with adjudication, too substantive to be legitimately implemented as procedure, and too mechanical to count as a proper form of adjudicative reasoning. Part IV argues that statistical adjudication is not as strange as it might seem, that its outcome effects do not make it too substantive, and that while it substitutes a mechanical decision algorithm for the usual reasoning process, it does so in a way that can be justified as legitimate. It is time that we recognize statistical adjudication for what it is: a useful procedural tool that, when carefully designed and selectively deployed, is capable of adjudicating large case aggregations fairly and efficiently.
Thursday, October 27, 2016
Erin Delaney has posted on SSRN her article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016). Here’s the abstract:
Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of — or the evolution of popular societal consensus around — a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.
Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.
Monday, October 24, 2016
Today on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing in the Jury. Steve reviews Suja Thomas’s recent book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016).
This Article presents the first systematic study of foreign sovereign amicus briefs in the Supreme Court. Based on an analysis of the briefing, oral arguments, and opinions in every Supreme Court merits case involving a foreign sovereign amicus since 1978, this Article argues that foreign sovereigns do and should play an important role in shaping foreign relations law.
The Article begins with an empirical investigation of which sovereigns file, the types of cases in which they file, and the nature of the arguments they make. To a surprising extent, the Court cites foreign sovereign briefs, discusses them at argument, and even grants oral argument time to foreign sovereign amici — all despite the widespread perception that the Court is ambivalent or even hostile to foreign and international law.
The Article then situates the Supreme Court’s treatment of foreign sovereign amici within a larger story about how the Court approaches foreign relations questions. Although scholars have attempted to systematize and explain the deference the Court gives to the U.S. government in foreign relations cases, they have largely ignored the role that foreign sovereign amici play in the very same disputes. Accounting for the role of foreign sovereign amici challenges existing scholarly accounts of how and why the Court defers to the U.S. government on foreign relations issues.
The Article argues that the reasons underlying the Court’s deference to the U.S. government — the executive’s expertise, status as a lawmaker, and exercise of control over relevant policies — often apply to foreign sovereigns as well. This overlap in justifications for deference supports treating foreign sovereign amici similarly to the U.S. government in cases involving “international facts,” treaty interpretation, and customary international law. In cases involving foreign law, the justifications for deference suggest that foreign sovereign amici should receive more deference than the U.S. government.
In sum, attention to foreign sovereign amici sheds light on executive-to-judicial transnational networks and provides a more nuanced picture of the competing influences on the Court’s foreign relations jurisprudence.
Sunday, October 23, 2016
Thursday, October 20, 2016
Brian Fitzpatrick and Cameron Norris have posted on SSRN a draft of their article, One-Way Fee Shifting after Summary Judgment. Here’s the abstract:
New, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called "requester pays" is too extreme. But we also think the current regime — so called "producer pays" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.
Wednesday, October 19, 2016
Brooke Coleman has posted on SSRN her article, One Percent Procedure, 91 Washington Law Review 1005 (2016). 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.
Tuesday, October 18, 2016
Simona Grossi has posted on SSRN a draft of her article, A Principled Approach to Procedural Reform: Zooming In on the Claim. Here’s the abstract:
At the core of every liberal democracy is a commitment to a wide range of individual rights. The recognition and evolution of those rights is a lively topic of public debate. Procedural law, on the other hand, is well below the public radar. Yet, federal practice and procedure are silently eroding our system of democracy through a mechanical and fragmented approach to procedure that is increasingly detached from the litigation mission in a manner that elevates form over substance, prevents the creation and enforcement of rights, and ultimately denies access to justice. This article is part of a larger project intended to change the way we think about and approach procedural law and procedural reform at the federal level. My goal is to unearth the unifying principles of federal procedure and practice, and use them to design a system that promotes the coherent, fair, and efficient creation and enforcement of substantive rights. To that end, I elaborate a theory of federal procedure and practice that assigns to the claim, the essential litigation unit, a central role in litigation analysis and reform. Testing the federal rules and procedural doctrines against the claim helps us see when procedure, operating at a very high level of abstraction and formalism, suffocates substantive law and justice, thus failing to accomplish its essential mission of means in the creation and enforcement of substantive rights. Once identified the flaws in our procedural system, the project formulates reform proposals that are intended to return the rules and doctrines to the right balance between formalism and pragmatism, one essential for the rules and doctrines to accomplish their mission. Zooming in on the claim is crucial in this respect.