Thursday, October 20, 2016

Fitzpatrick & Norris on Discovery Costs and Post-Summary Judgment Fee-Shifting

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.





October 20, 2016 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, October 19, 2016

Coleman on One Percent Procedure

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.





October 19, 2016 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Tuesday, October 18, 2016

Grossi on Procedural Reform and Zooming in on the Claim

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.





October 18, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, October 17, 2016

Nielson & Walker on Strategic Judicial Behavior in Qualified Immunity Decisions

Aaron Nielson and Chris Walker have posted on SSRN their article, Strategic Immunity, 66 Emory L.J. 55 (2016). Here’s the abstract:

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes result. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives for the proper exercise of discretion.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public’s benefit. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge’s discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant “panel effects”: politically unified panels are more likely to exercise discretion either to find no constitutional violation, for “all Republican” panels, or to recognize new constitutional rights, for “all Democratic” panels. Yet on mixed panels there are no differences, suggesting a collegial concurrence or a majority compromise to avoid dissent. The decision to publish also appears to be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. This potential for strategic behavior — as in the administrative law context — begs for reform.

As Chris pointed out on twitter, this issue of the Emory Law Journal has a civ-pro/fed-courts vibe to it, including my article on the 2015 FRCP amendments and some interesting student comments on judicial immunity and personal jurisdiction. Check it out.




October 17, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Saturday, October 15, 2016

Resnik on Federal and State Courts in our Federal System

Judith Resnik has published her article, Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System, at 91 Notre Dame L. Rev. 1831. 


This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation.

The heritage that Meltzer celebrated and to which he contributed was the outcome of twentieth-century social movements that focused on the federal courts as hospitable venues, serving as vivid sources of rights and remedies. A competing heritage has since emerged, as the Supreme Court shaped new doctrines constricting judicial powers and rendering courts unavailable and unavailing.

Despite the Court’s reluctance to welcome claimants, Congress continues to endow the federal courts with new authority and significant funds. But what the federal government has thus far ignored are the needs of state courts, where 100 million cases are filed annually and states struggle to honor constitutional commitments to open courts and rights to counsel for criminal defendants.

Once state courts come into focus, two other and competing understanding of courts come to the fore. One merits the term “enabling courts,” as judges aim to equip litigants with lawyers and resources for conflicts related to families, housing, and health. From “Civil Gideon” movements and self-help forms to drug and reentry courts, new initiatives underscore the goals of using courts to be responsive to social needs. But another vector of court activities falls under the nomenclature of “exploitive courts,” using discriminatory fines, fees, and threats of jail for those unable to pay to turn courts into profit centers to augment localities’ budgets.

Inequality and racial tensions are the leitmotifs of this decade; it is neither surprising nor inappropriate that these issues are played out in public courts as well as in electoral politics. But these very inequalities counsel the need to develop a new intellectual heritage, premised on the interdependencies of state and federal courts, sharing the common purpose of fulfilling constitutional obligations in this democratic polity to enable access to their public services.

October 15, 2016 in Recent Scholarship | Permalink | Comments (0)

Wednesday, October 12, 2016

Coleman on Rosenbaum on RICO & Class Action Warfare

Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys. Brooke reviews Briana Rosenbaum’s forthcoming Iowa Law Review article, The RICO Trend in Class Action Warfare.





October 12, 2016 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, October 11, 2016

The End of an Era? Federal Civil Procedure After the 2015 Amendments

My article on the 2015 amendments to the FRCPs is now in print. It’s The End of an Era? Federal Civil Procedure After the 2015 Amendments, 66 Emory L.J. 1 (2016). Here’s the abstract:

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting documents, the final amendments — in light of their text, structure, and accompanying advisory committee notes — should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.

Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief’s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.





October 11, 2016 in Adam Steinman, Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (1)

Saturday, October 8, 2016

Zimmerman et al. on the Economics and Evolution of Non-Party Litigation Funding

Alan L. Zimmerman, Fiona McKenna, Daniel J. Bush, and Cheryl Kaufman have published their article, Economics and the Evolution of Non-Party Litigation Funding in America: How Court Decisions, the Civil Justice Process, and Law Firm Structures Drive the Increasing Need and Demand for Capital, 12 N.Y.U. J.L. & Bus. 635 (2016).

From the introduction:

Economic historians have said that “America is the Canaan of capitalism, its promised land” where the tendencies of western capitalism could find fullest expression. One essential requirement for the continued success of American capitalism is a civil justice system that provides a fair and trusted forum for all parties seeking timely redress of economic disputes.


Beginning in kindergarten, American children start each day with a Pledge of Allegiance, ending with the words “with liberty and justice for all.” The current economic reality is that civil justice in America has become a “pay to play” process. With few exceptions, it does not function fairly or effectively unless each side of a dispute has enough capital to pay the very substantial cost of full participation.


The United States is experiencing a high degree of wealth and resource inequality among its citizens. There can be no ‘justice for all’ unless each side of an economic dispute can aggregate the capital needed to ‘play.’ It is not surprising that those with the greatest concentration of wealth experience discomfort when natural economic forces generate funding solutions for their less affluent, potential adversaries enabling them equal access to the field of ‘play.’


This paper views civil litigation initiated by a party seeking money damages through the lens of the underlying economics that impact the civil justice system's ability to achieve fair outcomes. It examines how access to capital has impacted the functioning of civil justice in the United States.


Participation and success in any endeavor seeking profit or economic gain in the American capitalist system requires a sufficient supply of the three basic economic elements: property, labor, and capital. The evolution of each of these elements as applied to civil litigation and the parties and lawyers seeking gain or profit has brought us to the current state of justice in America. Just as horses and buggy whips have given way to engines and motors as major economic drivers, vast developments in our capitalistic society have served as catalysts for change in the U.S. common law legal system and reshaped the nature and interplay of the required resources of property, labor, and capital within that system.


The paper will demonstrate that non-party litigation funding is a natural and healthy capitalistic response to the changes that have occurred in the economy and in civil justice. We examine the historical development of the three economic elements, property, labor and capital, in the context of one economic endeavor, a lawsuit in which at least one party--and all of the lawyers--seek economic gain as the objective, and how the developments have increased the need for capital investment.



October 8, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, October 7, 2016

Marcus on Class Actions in the Twenty-First Century

Rick Marcus has posted on SSRN his article, Bending in the Breeze: American Class Actions in the Twenty-First Century, which was published in the DePaul Law Review. Here’s the abstract:

It is always better to have the breeze at your back, but that surely has not recently been the case for class action proponents. At the risk of overstating, there is a certain fin de siecle flavor to current procedural discussions, at least among academics; it seems that several foundational principles of late twentieth century procedural ordering have come under attack in the twenty-first century. Although not alone among those principles, class actions have a prominent role. Dean Robert Klonoff has recently written of "The Decline of Class Actions," and Professor Linda Mullenix has written of "Ending Class Actions as We Know Them." Professor Arthur Miller-who was present at the creation of the modern class action-has suggested that we face "the death of aggregate litigation by a thousand paper cuts." But he, at least, sees some "rays of light that indicate it will survive."' It is likely an overstatement to claim that any of these prominent academics foresees the imminent demise of American class actions. But as we shall see, lawyers sometimes view things in more apocalyptic terms. At the same time, most or all would probably agree with Judge Boyle about the increasing headwinds that plaintiffs face.

Without questioning in the least the idea that proponents of the class action have suffered some reverses recently, I intend to argue that Professor Miller's optimism about American aggregate litigation is justified. Like Confucius' green reed, the class action is likely to bend in the breeze and survive the current, cold climate. In significant part, this attitude stems from an appreciation of the exceptional character of American class actions in particular and the American bench and bar in general. As Professor Christopher Hodges of Oxford began his study of European techniques for affording relief in court to groups, lawmakers in Europe sought to avoid "a US-style court-based mechanism." And Canadian Professor Janet Walker introduced an international panel on group litigation in Moscow by noting that "everyone, at least outside the United States, seems also to agree that they do not want to adopt U.S.-style class actions in their legal systems."

Against this background, it does not seem that American aggregate litigation in general, and class actions in particular, are in danger of extinction. Indeed, one book published in 2014 on European group litigation worries in its title whether they-compared to American aggregate litigation-are "squeaking mice," and Dean Klonoff has recently explained why most nations do not have U.S.-style class actions."





October 7, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Wednesday, October 5, 2016

Shapiro on Federal Question Jurisdiction

David Shapiro has posted on SSRN his essay, An Incomplete Discussion of “Arising Under” Jurisdiction, which was published in the Notre Dame Law Review. Here’s the abstract:

This essay, a contribution to a Symposium in honor of Professor Daniel Meltzer, focuses on one aspect of federal question jurisdiction – cases in which a question of federal law is “embedded” in a state law cause of action. The essay deals primarily with these cases as they come to the Supreme Court on request for review of a state court decision, but also addresses cases that arise when a party invokes the original or removal jurisdiction of a federal district court. The questions whether and to what extent such cases fall within the constitutional and statutory authority of the federal courts are considered in the historical context of the evolution of Supreme Court decisions, and the interplay of the views over several decades of the author, of Professor Meltzer, and of seven editions of Hart & Wechsler’s “The Federal Courts and the Federal System.”




October 5, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, September 28, 2016

Vazquez and Vladeck on a Constitutional Right to Collateral Post-Conviction Review

Carlos Vazquez and Steve Vladeck have posted on SSRN a draft of their article, The Constitutional Right to Collateral Post-Conviction Review, which will be published in the Virginia Law Review. Here’s the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.





September 28, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Friday, September 23, 2016

Now on JOTWELL: Erbsen on Gilles on Arbitration & the End of Law

Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Common Law in the Age of Arbitration. Allan reviews Myriam Gilles’ recent article, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).




September 23, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, September 21, 2016

Ever Wonder Which SCOTUS Cases Have Been Cited the Most?

We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.

So which Supreme Court decisions have been cited the most? The top-ranked cases, it turns out, are right in your 1L civil procedure syllabus. My article that came out this spring (The Rise and Fall of Plausibility Pleading?) includes some data on this from the Shepard’s citation service. In terms of citations by federal courts, the Top-5 are all civil procedure cases: the 1986 summary judgment trilogy (#1, #2, #5) plus Twombly (#3) and Iqbal (#4). Here’s the Top-20:



Federal Court Citing References


Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)



Celotex Corp. v. Catrett, 477 U.S. 317 (1986)



Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)



Ashcroft v. Iqbal, 556 U.S. 662 (2009)



Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)



Strickland v. Washington, 466 U.S. 668 (1984)



Thomas v. Arn, 474 U.S. 140 (1985)



Conley v. Gibson, 355 U.S. 41 (1957)



Slack v. McDaniel, 529 U.S. 473 (2000)



Haines v. Kerner, 404 U.S. 519 (1972)



McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)



Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)



Neitzke v. Williams, 490 U.S. 319 (1989)



Richardson v. Perales, 402 U.S. 389 (1971)



Estelle v. Gamble, 429 U.S. 97 (1976)



Williams v. Taylor, 529 U.S. 362 (2000)



Farmer v. Brennan, 511 U.S. 825 (1994)



Miller-El v. Cockrell, 537 U.S. 322 (2003)



Erickson v. Pardus, 551 U.S. 89 (2007)



Harlow v. Fitzgerald, 457 U.S. 800 (1982)


You can find the full Top-100 in Appendix A of the article (p.59-62 of the pdf file).





September 21, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (3)

Tuesday, September 13, 2016

Gardner on Parochial Procedure

Maggie Gardner has posted on SSRN a draft of her article, Parochial Procedure, which will be published in the Stanford Law Review. Here’s the abstract:

The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.

This Article challenges that assumption. It argues instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines: it reflects not so much the personal views of individual judges, but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. The Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale — but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. 

To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of the Article: that the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.







September 13, 2016 in Recent Scholarship | Permalink | Comments (0)

Friday, September 9, 2016

Latest Essays on the Courts Law Section of JOTWELL

For those unfamiliar with JOTWELL, it is “a space where legal academics can go to identify, celebrate, and discuss the best new scholarship relevant to the law.” Five years ago, JOTWELL started a Courts Law section, which features scholarship on civil procedure, federal courts, and more.

Here are some of the Courts Law essays from the last few months:

April 14, 2016: Alexandra Lahav, Rethinking Civil Settlement (reviewing J.J. Prescott & Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016))

May 2, 2016: Kevin Walsh, Process Failure on the Road to Obergefell (reviewing Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016)

May 18, 2016: Adam Steinman, Fit to Be Tied (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016)).

June 1, 2016: Howard Wasserman, The Irrepressible Myth of SCOTUS (reviewing Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016))

June 29, 2016: Suzette Malveaux, Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality (reviewing David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016))

July 25, 2016: Sergio Campos, Classing Up the Agency (reviewing Administrative Conference of the United States, Aggregate Agency Adjudication, Final Report (June 9, 2016), and Administrative Conference of the United States, Administrative Conference Recommendation 2016-2, Aggregation of Similar Claims in Agency Adjudication (June 10, 2016))

August 17, 2016: Jessica Steinberg, How and Why Representation Matters (reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016))

September 9, 2016: Beth Thornburg, The Vanishing Poor (reviewing Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531 (2016))






September 9, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Strong on Diversity Jurisdiction & Commercial Trusts After Americold

S.I. Strong has posted on SSRN a draft of her article, Congress and Commercial Trusts: Dealing With Diversity Jurisdiction Post-Americold, which will be published in the Florida Law Review. Here’s the abstract:

Commercial trusts are one of the United States’ most important types of business organizations, holding trillions of dollars of assets and operating nationally and internationally as a “mirror image” of the corporation. However, commercial trusts remain underappreciated and undertheorized in comparison to corporations, often as a result of the mistaken perception that commercial trusts are analogous to traditional intergenerational trusts or that corporations reflect the primary or paradigmatic form of business association.

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties’ ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state court, despite their complexity, their impact on matters of national public policy and their effect on the domestic and global economies. 

Americold will also result in differential treatment of commercial trusts and corporations for purposes of federal jurisdiction, even though courts and commentators have long recognized the functional equivalence of the two types of business associations. Furthermore, as this research shows, there is no theoretical justification for this type of unequal treatment. 

This Article therefore suggests, as a normative proposition, that Congress override Americold and provide commercial trusts with access to federal courts in a manner similar to that enjoyed by corporations. This recommendation is the result of a rigorous interdisciplinary analysis of both the jurisprudential and practical problems created by Americold as a matter of trust law, procedural law and the law of incorporated and unincorporated business associations. The Article identifies two possible Congressional responses to Americold, one involving reliance on minimal diversity, as in cases falling under 28 U.S.C. §§1332(d) and 1369, and the other involving a statutory definition of the citizenship of commercial trusts similar to that used for corporations under 28 U.S.C. §1332(c). In so doing, this Article hopes to place commercial trusts and corporations on an equal footing and avoid the numerous negative externalities generated by the Supreme Court’s decision in Americold.




September 9, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 8, 2016

Sachs on Pennoyer, Personal Jurisdiction & General Law

Steve Sachs has posted on SSRN a draft of his article, Pennoyer Was Right: Jurisdiction and General Law, which will be published in the Texas Law Review. Here’s the abstract:

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law--that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn't be recognized elsewhere, in other states or in federal courts--any more than if they'd tried to redraw their borders.

As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. Courts applying the Due Process Clause should avoid pitched battles between "sovereignty" and "liberty," looking instead to current conventions of general and international law. International law may not be much, but it's something: the conventional settlement of the problems of political authority that personal jurisdiction so obviously raises.

Pennoyer's reasoning can be right without International Shoe's outcome being wrong. International law and American practice might be different now than in 1878, or even in 1945. But if not, or if the rules need improvement anyway, Congress has power to improve them--providing federal rules to govern a federal system.





September 8, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, September 7, 2016

Vazquez on the Presumption Against Extraterritoriality

Carlos Vazquez has posted on SSRN Out-Beale-Ing Beale, which was initially published in the American Society of International Law’s AJIL Unbound. Here’s the abstract:

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism — a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco, the Court has strengthened and expanded the presumption. With its decision in RJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale.





September 7, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, September 6, 2016

Call for Nominations: AALS Federal Courts Section’s Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

Here is the announcement:

The AALS Section on Federal Courts is pleased to announce the fifth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2017 AALS Annual Meeting in San Francisco, CA. 

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School ( Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.






September 6, 2016 in Conferences/Symposia, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Thomas on Parens Patriae Actions

Margaret Thomas has posted on SSRN a draft of her article, Parens Patriae and the States' Historic Police Powers, which will be published in the SMU Law Review. Here’s the abstract:

This is a draft of a forthcoming work in progress. Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases. 

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain the source and scope of the state’s power to bring mass tort suits for injuries to the state’s populace, sometimes reaching seemingly contradictory results.

Although the use of parens patriae power in mass tort litigation has been both praised and criticized by complex litigation scholars, commentators have largely overlooked the historical and constitutional functional role of parens patriae litigation. This Article fills that gap by examining the states’ parens patriae power from the Framing to the modern era excavate the doctrine’s historical roots and purpose in our constitutional structure. It debunks the false history used by modern courts to justify the doctrine’s existence, suggesting courts have relied on a faulty foundation to expand the doctrine. In so doing, this Article makes space for a new foundation for parens patriae litigation rooted in the historic police powers of the states. 

The Article argues that the historic police powers of the states are inextricable from parens patriae power. Modern mass tort litigation brought by states is thus deeply connected to federalism in a way that traditional class actions are not.




September 6, 2016 in Recent Scholarship | Permalink | Comments (0)