Friday, August 21, 2015
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.
Thursday, August 13, 2015
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.
Tuesday, August 11, 2015
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.
Monday, July 27, 2015
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).
Thursday, July 16, 2015
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.
Wednesday, July 15, 2015
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.
Tuesday, July 14, 2015
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.
Monday, June 29, 2015
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.
Tuesday, June 23, 2015
Forthcoming in the University of Cincinnati Law Review is my article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees.
In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, the pending amendments to the Federal Rules of Civil Procedure hurt David and help Goliath more than any previous round of amendments. The amendments represent corporate defendants' victory in the thirty-year war to limit the scope of discovery by enshrining "proportionality" as part of the definition of, rather than a limitation on, the scope of discovery. The amendments will also make it more difficult for plaintiffs to obtain an adverse inference jury instruction or other sanctions for a defendant’s intentional loss of electronic evidence. For no good reason, the amendments will reduce the length of time within which plaintiffs must effectuate service of process, thereby gifting defendants with a corresponding reduction in the statute of limitations. In addition, the amendments wipe out thirty-six official forms, on the thin excuse that the Advisory Committee wants to "get out of the forms business"; in fact, many interpret the move as a tacit agreement with the heightened pleading standard imposed on plaintiffs by the Supreme Court in Twombly and Iqbal.
The amendments' mostly anti-plaintiff effect is evidenced by a stark split in the public reaction, with plaintiffs’ lawyers almost unanimously against most of the amendments and defendants’ lawyers almost unanimously in favor. But the Advisory Committee was astoundingly indifferent to the polarized public reaction to the proposed amendments. One Advisory Committee member dismissed the stories told at the public hearings by plaintiffs' lawyers about their need for discovery as "Queen-For-A-Day issues," a reference to a 50-year-old daytime television show in which women tearfully told their real-life sob stories to vie for prizes.
Remarkably, in evaluating the need for these amendments, the Committee did not rely on very much case law, any government caseload statistics, or any of the ninety-four district court reports on “cost and delay” mandated by the Civil Justice Reform Act of 1990. Instead, the Committee commissioned a mound of so-called “empirical studies” which consisted mostly of flawed opinion surveys of self-selected attorneys. The one methodologically sound study, conducted by the Federal Judicial Center, found that discovery worked well and at modest cost in most federal cases. The Committee either ignored or mischaracterized the FJC’s study.
Given the makeup of the Advisory Committee and the Standing Committee, none of this is surprising. The members of both committees are all appointed by Chief Justice John Roberts, and except for a few tokens, they are ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, and/or experientially predisposed to think like corporate defense lawyers. There is no explicit constitutional, statutory, or rules authority for the Chief Justice’s unbridled appointment power. The Article concludes by forecasting the passage of a default “requester pays discovery costs” rule that is sought by defense interests, unless the mechanism for appointment of federal rules committee members is changed.
Forthcoming in the Journal of Legal History is an article by Princeton Ph.D. candidate Kellen Funk entitled Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76.
The Field Code of Civil Procedure — enacted in New York in 1848 and adopted by a majority of American jurisdictions thereafter — helped develop the modern American trial and influenced law reform in England. Leading accounts of the Code, however, ignore nineteenth-century New York practice which spurred its development, particularly the problems of fusing the separate systems of common law and equity. This Article recovers that context and shows that despite scholarly claims to the contrary, the Code’s drafters mainly sought to extend New York’s equitable procedures to all civil cases. They expected, however, that equitable remedies and procedures could be divorced from the structures of chancery. In the Code, a paradigm of substantive rights and procedural remedies replaced the old division between law and equity. David Dudley Field’s influential theory of fusion thus sought to expand the practice of equity, but without the courts of equity.
Tuesday, June 9, 2015
Now available on the Courts Law section of JOTWELL is an essay by Beth Thornburg entitled Discovery and Self-Improvement. Beth reviews Joanna Schwartz’s recent article, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055 (2015).
Saturday, June 6, 2015
Over a year ago, I reported the posting of a draft of my article, The Civil Caseload of the Federal District Courts. It has now been revised and published in The University of Illinois Law Review, Vol. 2015, No. 3. The paper is also posted on SSRN.
This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in the overall volume and duration of federal civil litigation since 1986, suggests a proper methodology for measurement, and shows that the rate of increase of civil filings is less than the growth in the country’s population and the increase in judicial resources in civil cases, noting that any increase must be attributable to the criminal docket. Next, this Article studies the rates at which cases are terminated by various methods, noting today’s primary method is before pretrial with court action due to dispositive motions and judicial management. Third, this Article tracks and explains changes in the “Big Six” categories of civil litigation. Finally, this Article emphasizes the need to look at the government’s caseload statistics to note that the federal civil caseload has been relatively stable for twenty-five years.
Thursday, April 30, 2015
Emery G. Lee III, Catherine R. Borden, Margaret S. Williams, and Kevin M. Scott have published in Volume 12, Issue 2 of the Journal of Empirical Legal Studies their article, Multidistrict Centralization: An Empirical Examination.
Following the judiciary's experience with aggregate litigation in the 1960s, Congress established a procedure for the transfer of related cases to a single district court for coordinated pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting point to become a central part of aggregate litigation in the federal courts today. Despite its importance, however, there is little empirical research on the MDL process. This article seeks to fill this gap in the empirical literature by addressing a few central questions about the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database, we examine how that body decided motions to centralize multidistrict litigation. We find, most importantly, that the Panel became more likely to order centralization of proceedings over time, after controlling for other factors. That trend is not, however, apparent in the most recent years' data. We also find, all else equal, that the Panel is more likely to centralize a proceeding including class allegations, and more likely to centralize proceedings raising certain kinds of claims.
Sunday, April 19, 2015
Shay Lavie has published Are Judges Tied to the Past? Evidence from Jurisdiction Cases in the Hofstra Law Review. Here’s the abstract:
Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case if the trial judge invested a large amount of resources in coming to a decision.
To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this Article finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdictional determination. This correlation is statistically significant and non-trivial in size.
This Article then discusses the normative implications of this phenomenon. The major implication is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.
Tuesday, April 14, 2015
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).
Thursday, April 2, 2015
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).
Tuesday, March 31, 2015
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.
This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.
My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.
[Cross-posted at PrawfsBlawg]
Thursday, March 26, 2015
Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract:
In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.
Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.
Friday, March 20, 2015
Katherine Macfarlane (Louisiana State University) has published in the Stanford Journal of Civil Rights and Civil Liberties (Vol. 11, 2015) an article entitled A New Approach to Local Rules.
The Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed.
Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.
Tuesday, March 17, 2015
Brian Fitzpatrick (Vanderbilt) has posted two new articles to SSRN on class actions.
The End of Class Actions: In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court’s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers — and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether — I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders.
An Empirical Look at Compensation in Consumer Class Actions: Consumer class actions are under broad attack for providing little in compensation to class members. One response to this charge is the argument that one of us has made elsewhere: consumer class actions should not be measured by their compensatory value but by their deterrence value. But here we take up this critique of consumer class actions on its own terms: can they serve a meaningful compensatory role? Scholars have taken up this question before, but they have been stymied by the lack of available data. In this article, we present original data on the distribution of class action settlements in fifteen related small-stakes consumer class action lawsuits against some of the largest banks in the United States. We obviously can make no claim that these settlements are representative of most consumer class actions. Nonetheless, we believe our findings support the notion that, under certain circumstances, consumer class actions can indeed serve a meaningful compensatory role: when they eschew claim forms in favor of automatic distributions and when they rely on direct deposits or standard-sized checks rather than the cheaper, postcard-sized variety to make those distributions.