Tuesday, August 23, 2016
Michael Sant'Ambrogio and Adam Zimmerman have posted on SSRN a draft of their article, Inside the Agency Class Action, which will be published in the Yale Law Journal. Here’s the abstract:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies—including agency policymakers, staff and adjudicators—we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.
Monday, August 22, 2016
Jonah Gelbach & Dave Marcus have posted on SSRN A Study of Social Security Disability Litigation in the Federal Courts, Final Report to the Administrative Conference of the United States. Here’s the abstract:
A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent.
The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation.
Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly.
Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.
Friday, August 12, 2016
The contributions to the Emory Law Journal’s 2015 Pound Symposium are posted here. They include essays by Stephen Daniels & Joanne Martin, Rich Freer, Myriam Gilles, Bob Klonoff, Alexandra Lahav, Cathy Sharkey, and Georgene Vairo.
Wednesday, August 10, 2016
Two articles published in the latest issue of the Journal of Empirical Legal Studies:
Michael Heise & Martin T. Wells, Revisiting Eisenberg and Plaintiff Success: State Court Civil Trial and Appellate Outcomes
Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg's analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff's success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff's decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff's decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that likely account for the observed differences that distinguish our results from Eisenberg's. First, legal cases that persist to an appellate outcome are a filtered subset of underlying trials and legal disputes and various selection effects inform much of this case filtering. Second, where Eisenberg analyzed the relation between pretrial motions and trial outcomes in federal courts, we assess possible relations between trial and appellate court outcomes in state courts. The pretrial and trial context and the trial and appeals context likely differ in ways that disturb plaintiff success. Third, while Eisenberg studied federal cases between 1978–1985 we study state cases between 2001–2009. In addition to differences between federal and state civil cases, the composition of cases that selected into formal litigation may have evolved over time.
Talia Fisher, Tamar Kritcheli-Katz, Issi Rosen-Zvi, & Theodore Eisenberg, He Paid, She Paid: Exploiting Israeli Courts' Rulings on Litigation Costs to Explore Gender Biases
This study documents gender disparities in litigation-cost rulings in Israel. It expands on the existing literature on judicial bias in at least two important ways: by controlling for the merits of the cases and by focusing on civil litigation. The first improvement is methodological. The unique Israeli regime of litigation costs allows us to control for the merit of the cases, as well as for other typically unobservable variables, and thus to isolate and observe judicial bias. The second improvement on the existing literature on judicial bias involves focusing on outcome disparities in the civil (rather than criminal) justice system. Although numerous studies explore gender-based disparities in the criminal justice sphere, only a very small number of studies explore such disparities in the civil arena. We found clear disparities in the allocation of litigation costs between men and women. Male plaintiffs who lost were ordered to pay the winners' legal fees more often than were losing women as sole plaintiffs or as part of all-women plaintiff groups. Likewise, the fees women plaintiffs who lost a case were obliged to pay were less than those required of losing men, and women defendants who won cases received higher fee awards than similarly situated men.
Friday, July 29, 2016
Lou Mulligan and Glen Staszewski have posted on SSRN a draft of their article, Civil Rules Interpretive Theory. Here’s the abstract:
We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
Friday, July 15, 2016
Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?
This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.
Thursday, July 14, 2016
Professor Suja Thomas (Illinois) has just published her book, The Missing American Jury (Cambridge U. Press). Here is a summary of the book:
Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government. Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide andargues jury decision-making should be preferred over determinations by other governmental bodies.
Wednesday, July 13, 2016
Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:
For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.
The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?
This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.
Tuesday, July 12, 2016
Jessica Erickson has posted on SSRN a draft of her article, Heightened Procedure, which will be published in the Iowa Law Review. Here’s the abstract:
When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for uniform procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure” — additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the prevalence of heightened procedure, there has been no comprehensive examination of its role across the legal system, leaving lawmakers with little understanding of what specific heightened procedures do and what specific areas of the law need. This Article aims to provide that framework, explaining how lawmakers can match the causes of meritless litigation with the appropriate heightened procedural tools. In the end, meritless litigation is not one-size-fits-all, and its procedural solutions should not be either.
Professor Richard Freer has just published in Emory Law Journal, 65 Emory L.J. 1491, his recent article, Exodus from and Transformation of American Civil Litigation.
But, at least as envisioned historically, court litigation plays a far broader role than arbitration. It is a transparent public process, governed by the rule of law. It generates the common law that governs most aspects of our daily lives. It is pivotal in social ordering. Arbitration, in contrast, goes on behind closed doors, is not cabined by the rule of law, and does not result in reasoned opinions. Arbitration resolves the dispute at hand and does little else. Accordingly, some have argued that the view that arbitration and court litigation are equivalents cheapens the values embodied in court litigation.
That argument is strong, but would be stronger if today’s version of court litigation resembled the historical model. It does not. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. Indeed, some judges conclude that going to trial reflects a systemic “failure.”
The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.
Wednesday, June 22, 2016
Judge Philip M. Pro (United States District Court for the District of Nevada) has posted on SSRN his article United States Magistrate Judges: Present but Unaccounted For, forthcoming in the Nevada Law Journal.
The relationship between United States district judges and United States magistrate judges is unique within the American judiciary. United States magistrate judges are the first judges encountered in most federal civil or criminal cases and play an increasingly important role in the adjudication of virtually every case in United States district court. Yet, while the behavior of Article III judges has been the subject of active academic scrutiny, the behavior of magistrate judges, who are appointed to renewable eight-year terms by their Article III district judge colleagues, has largely been ignored. This paper reports the results of interviews of thirty-four magistrate judges and district judges, and through their experiences, explores whether their judicial decision-making relationship, a motivation for re-appointment, or elevation to Article III status influences their judicial behavior and that of their district judge colleagues. The answers to these questions are nuanced and dependent on variables not previously considered, and are best understood in the context of the remarkable evolution of the Magistrate Judges System, which has existed for less than fifty years.
Tuesday, June 21, 2016
Cody Jacobs (Freedman Fellow, Temple University Beasley School of Law) has published in New Mexico Law Review his article, If Corporations Are People, Why Can't They Play Tag?
The Supreme Court’s decision in Burnham v. Superior Court — despite producing a splintered vote with no opinion garnering a majority of the Court — made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient or “tag” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and used to be the primary method for determining whether an out of state defendant could be haled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions offairness.
This article argues that both the originalist and fairness-based tests proposed by the principal opinions in Burnham support allowing the assertion of tag jurisdiction over corporations and other entity defendants through in-state service on their officers. This article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The article also demonstrates that the fairness considerations that led four Members of the Court to endorse tag jurisdiction in Burnham apply with even greater force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons.
Professor Kevin M. Clermont (Cornell) has posted to SSRN his article, Limiting the Last-in-Time Judgment Rule.
A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, here and also abroad, where the first-in-time rule reigns. The Article resurfaces to rearrange the puzzle pieces into a simple reformulation—an elaboration but not an amendment—of the American law on inconsistent judgments.
Monday, June 20, 2016
Brooke Coleman has posted on SSRN a draft of her article One Percent Procedure, which is forthcoming in the Washington Law Review. 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.
Friday, June 10, 2016
Here are seven papers posted on SSRN in the last month relating to civil procedure issues:
James C. Spindler (University of Texas School of Law; McCombs School of Business, University of Texas at Austin)
Recent scholarship overwhelmingly contends that the fraud on the market securities class action has neither deterrent nor compensatory effect and should be cut back or even abandoned entirely. This scholarship largely focuses on two critiques: circularity, which holds that shareholder class action claimants are suing themselves, making compensation impossible; and diversification, which holds that fraud constitutes a diversifiable risk, such that diversified shareholders both gain and lose from fraud in equal measure and hence are not negatively impacted. These critiques are arguably the most important and widely-used theoretical development of the last two decades in securities law, and enjoy a broad consensus.
Unfortunately, these critiques are wrong. After tracing the evolution of these critiques, this paper demonstrates economically that, despite widespread acceptance, none of the principal claims of these critiques are correct. In particular: fraud on the market does indeed compensate defrauded purchasers despite circularity (under certain conditions, perfectly); and diversified investors do have expected losses from fraud and have incentives to undertake deadweight precaution costs. Further, the fraud on the market remedy deters both precaution costs and, under certain conditions, fraud itself. The critiques are fundamentally flawed, the academic consensus on fraud on the market is incorrect, and the panoply of reform proposals based on these critiques is without foundation. These critiques have fueled a trend of cutbacks and ongoing existential challenges to fraud on the market (as in Halliburton) that, in light of these results, should be rethought.
Wednesday, March 30, 2016
Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).
Tuesday, March 29, 2016
My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.
Friday, March 18, 2016
Bryan Lammon (Toledo) has posted Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Discretion in Appellate Jurisdiction to SSRN.
In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.
The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.
Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.
Tuesday, February 23, 2016
Scott Dodson (Hastings) has posted An Opt-In Option for Class Actions