Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Friday, September 7, 2018
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Politically Powerful and Judicial Review. Fred reviews Aaron Tang’s recent article, Rethinking Political Power in Judicial Review, which is forthcoming in the California Law Review.
Thursday, September 6, 2018
Shirin Sinnar has published Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018). Here’s the abstract:
In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain trans-substantive procedures, and distorted perceptions across the civil–criminal procedure divide.
Tuesday, September 4, 2018
Aggregation — the ability to join parties or claims in a federal civil lawsuit — has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction — especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb — threatens the salutary benefits of aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. I offer a solution for preserving aggregation’s advantages in the face of the personal-jurisdiction trend: authorize a broader personal-jurisdiction scope in federal court for certain multiparty and multiclaim cases that would benefit from aggregation. I defend such a regime as constitutional and consistent with the norms of both personal jurisdiction and aggregation.
Ben Grunwald was published Strategic Publication, 92 Tul. L. Rev. 745 (2018). Here’s the abstract:
Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.
This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.
Wednesday, August 29, 2018
The Notre Dame Law Review recently published a symposium issue entitled Federal Courts, Practice & Procedure: The Future of Qualified Immunity, which includes pieces by Sam Bray, Joanna Schwartz, Aaron Nielson & Chris Walker, Karen Blum, Alan Chen, Jack Preis, Scott Michelman, David Shapiro & Charles Hogle, Alex Reinert, and Fred Smith.
Monday, August 27, 2018
Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
Friday, August 24, 2018
Cathie Struve has published The Federal Rules of Inmate Appeals, 50 Ariz. St. L.J. 247 (2018). Here’s the abstract:
The Federal Rules of Appellate Procedure turn fifty in 2018. During the rules' half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past fifty years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals. In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities—and underscores the salience of local court practices and institutional partnerships.
Tuesday, August 14, 2018
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Why Military Justice Doesn’t Get Enough Academic Attention. Steve reviews Rodrigo Caruço’s recent article, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016).
Tuesday, August 7, 2018
Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:
By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.
Monday, August 6, 2018
Andy Hessick has published Consenting to Adjudication Outside the Article III Courts, 71 Vand. L. Rev. 715 (2018). Here’s the abstract:
Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.
Tuesday, July 31, 2018
Suzette Malveaux has published The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 U. Kan. L. Rev. 325 (2017). Here’s the abstract:
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.
First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.
Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.
Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.
Monday, July 30, 2018
Jonah Gelbach & Dave Marcus have published Rethinking Judicial Review of High Volume Agency Adjudication, 96 Tex. L. Rev. 1097 (2018). Here’s the abstract:
Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief—the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.
We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.” These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.
This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument builds on a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly and a court system attempting to help this agency improve.
Wednesday, July 25, 2018
Monday, July 23, 2018
Rye Murphy has published Competing Ideologies at the Formation of the Federal Class Action Rule: Legal Process Versus Legal Liberalism, 10 Drexel L. Rev. 389 (2018). Here’s the abstract:
In 1966, the Supreme Court promulgated a new procedural rule for class actions in federal court. Amended Rule 23 was a considerably different mechanism than its predecessor. It was more inviting of class action litigation but also incorporated new mechanisms for protecting class members. This was not an unreasonable trade-off, and one can imagine a group of rule-makers—elite academics, federal judges, prestigious attorneys—peaceably striving to write a rule that could balance individual class members’ interests with the interests of the class as a whole. But this is not what happened. The Rule 23 of today is an accord between two rival sects of mid-century legal thinking. The Legal Process tradition considered federal courts one of many institutions in society for mediating conflict, though the one uniquely capable of employing neutral reasoning to do so. Harvard Law School professors Benjamin Kaplan and Albert Sacks argued that a flexible, robust class action rule was needed to solve the complex, large-scale problems American society was increasingly facing. Attorney John P. Frank, a litigator and civil libertarian, fought vigorously against anything but the narrowest rule. Legal liberalism, Frank’s camp, tended to view federal courts in their capacity to enforce substantive principles, and Frank argued that the Constitution and American legal tradition forbade a rule that might deprive an individual of the opportunity to litigate her own interests. It was a duty of the rule-maker, for Frank, not to enact a rule that would violate what he identified as a principle of individualized adjudication. The balance the current rule strikes, including the opt-out mechanism, is a product of their compromise.
Friday, July 20, 2018
Michael Kagan, Rebecca Gill & Fatma Marouf have published Invisible Adjudication in the U.S. Courts of Appeals, 106 Geo. L.J. 683 (2018). Here’s the abstract:
Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many—and in a few circuits, most—decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system.
Thursday, July 19, 2018
Matthew Shapiro has published Delegating Procedure, 118 Colum. L. Rev. 983 (2018). Here’s the abstract:
The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.
This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.
Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.
Thursday, July 12, 2018
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, A Step Toward a Proper Understanding of Constitutional Litigation. Howard reviews Jonathan Mitchell’s recent article, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018).
Thursday, June 21, 2018
Sarah Swan has published Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018). Here’s the abstract:
When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities.
Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.
Sunday, June 17, 2018