Monday, May 21, 2018
Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).
Friday, May 18, 2018
Brooke Coleman has posted on SSRN a draft of her essay, #SoWhiteMale - Federal Civil Rulemaking, which is forthcoming in the Northwestern University Law Review. Here’s the abstract:
116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are not apolitical actors. This essay argues that the homogeneous composition of the rulemaking committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the rulemaking committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this essay argues that the rulemaking committee members, the Judiciary, and the Bar should demand that the civil rulemaking committee cease being #SoWhiteMale.
Monday, May 7, 2018
Tuesday, May 1, 2018
Fordham Law Review Colloquium Issue: Access to Justice and the Legal Profession in an Era of Contracting Civil Liability
Monday, April 23, 2018
Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.
Monday, April 16, 2018
Friday, April 13, 2018
Andrew Bradt and Zach Clopton have published their essay, MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation, 112 Nw. U. L. Rev. 905 (2018). Here’s the abstract:
Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.
In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally.
Wednesday, April 11, 2018
Leah Litman has posted on SSRN a draft of her article, Remedial Convergence and Collapse, which is forthcoming in the California Law Review. Here’s the abstract:
This Article describes and interrogates a phenomena of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.
Tuesday, April 10, 2018
Bryan Lammon has posted on SSRN a draft of his article, Finality, Appealability, and the Scope of Interlocutory Review, which will be published in the Washington Law Review. Here’s the abstract:
Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be final. Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”
This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those appeals. Though related, these contexts are distinct and involve unique issues and interests. Successful reform must fill each of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.
Monday, April 9, 2018
Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, Take Down the List. Suja reviews an article by Miguel de Figueiredo, Alexandra Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List.
Tuesday, April 3, 2018
Steve Sachs has posted on SSRN his essay, Finding Law, which is forthcoming in the California Law Review. Here’s the abstract:
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.
This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English -- with a certain kind of reliability, but with no power to revise at will.
The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead. But uncertain cases force judges to make "decisions," not to make "law." Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force -- as law of the circuit, law of the case, and so on -- without altering the underlying law on which they're based.
This Essay claims only that it's plausible for a legal system to have its judges find law. It doesn't try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous ones in Erie, rest on the false premise that judge-made law is inevitable -- that judges simply can't do otherwise. In fact, judges "can" do otherwise: they can act as the law's servants rather than its masters. The fact that they can forces us to confront, rather than avoid, the question of whether they should. Finding law is no fallacy or illusion; the brooding omnipresence broods on.
Thursday, March 29, 2018
Maggie Gardner has posted on SSRN a draft of her article, Abstention at the Border, which will be published in the Virginia Law Review. Here’s the abstract:
The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.
This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.
In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.
Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.
Wednesday, March 28, 2018
Yesterday the Supreme Court heard oral argument in United States v. Hughes, a case involving how to identify the holding of a Supreme Court decision with no majority opinion. This issue traditionally (or at least for the last 40 years) has been analyzed using the rule from Marks v. United States, which states that the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The particular fragmented decision at issue in Hughes is Freeman v. United States, in which the Court split 4-1-4 regarding when certain defendants are eligible to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines.
Here is the transcript from yesterday’s argument. I was particularly interested in this observation by Justice Kagan [on pp.22-23 of the transcript], which occurs during a broader exchange in which Petitioner’s counsel is arguing against an approach to Marks that factors in the reasoning of dissenting Justices:
JUSTICE KAGAN: Well, Mr. Shumsky, I think -- I think your approach relies on dissents sometimes too, because take one of these logical subset cases. You have a concurrence that is a logical subset of the plurality. And you say, well, the concurrence controls. And that's true even as to times where the concurrence splits off with the plurality and joins with the dissent. So you're counting dissents too, I think.
Justice Kagan’s point highlights a concern I raise in my recent essay, Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018). Some circuit judges interpreting Freeman have engaged in precisely this kind of reasoning regarding logical subsets, and Justice Kagan is exactly right that such an approach is really one that counts dissenting votes. Accordingly, in my view, to embrace this approach would be a departure from the prevailing understanding of Marks, and it would raise the same concerns that others have identified with allowing dissenting Justices to determine the binding content of Supreme Court decisions.
Monday, March 26, 2018
The final version of my essay Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018), is out. Here’s the abstract:
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).
Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to apply Marks coherently to non-majority opinions that endorse biconditional rules.
The Supreme Court hears oral argument in Hughes tomorrow (3/27).
Friday, March 23, 2018
Chrystin Ondersma has published Consumer Financial Protection and Human Rights, 50 Cornell Int’l L.J. 543 (2017). Here’s the abstract:
This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human rights principles, including property rights, rights to be free from discrimination, and due process rights. This Article then evaluates the CFPB’s rule from a human rights standpoint, and explores the CFPB’s role in mitigating human rights concerns triggered by arbitration clauses in consumer credit contracts.
Bryan Lammon has posted on SSRN a draft of his article, Cumulative Finality, which will be published in the Georgia Law Review. Here’s the abstract:
A proper notice of appeal is a necessary first step in most federal appeals. But federal litigants sometimes file their notice of appeal early, before district court proceedings have ended. When those proceedings finally end and no new notice is filed, the law of cumulative finality determines what effect-if any-the premature notice has. Sometimes the notice is effective and the appeal proceeds as normal. Sometimes it's not, and litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks from a distance. Up close, the courts of appeals are hopelessly divided on matters of cumulative finality. They disagree what law governs cumulative finality issues-whether they're governed solely by Rule of Appellate Procedure 4(a)(2) or also by a common-law cumulative finality doctrine that preceded the rule-and under what conditions a premature notice of appeal is saved. Three distinct approaches to cumulative finality have emerged, resulting in a deep circuit split. To make matters worse, decisions within several of the circuits have applied different approaches, resulting in intra-circuit divides.
This Article offers a fix. Neither the text of the Rules of Appellate Procedure nor their history provide a clear cumulative finality rule. But looking to the practicalities of the issue suggests allowing a subsequent judgment to save any prematurely filed notice of appeal. Doing so imposes few costs while preserving litigants' right to appeal.
The current cumulative finality mess illuminates a larger issue with the appellate jurisdiction literature and its attendant reform efforts. The literature has long maligned the unnecessary complexity and uncertainty of the entire federal appellate jurisdiction regime and advocated reform. But most of that literature focuses on only one part of that regime-appeals before a final judgment. Equally important are issues with determining when district court proceedings have ended and parties thus have a right to appeal. Cumulative finality is only one piece in this other aspect of appellate jurisdiction. There are more. Successful reform might require establishing a new, clearer point at which parties have a right to appeal. So this other aspect of appellate jurisdiction needs similar attention if reform is to succeed.
Thursday, March 22, 2018
Abbe Gluck, Ashley Hall, and Gregory Curfman have posted on SSRN a draft of their article, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, which will be published in the Journal of Law, Medicine & Ethics. Here’s the abstract:
The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. The plaintiffs -- who range from states, to counties, to Indian tribes, and individuals -- have cast an exceedingly broad net for defendants. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain -- which they were -- two decades ago.
This is not the first major national public health litigation effort -- tobacco, fast food, and guns offer earlier blueprints -- but it has some unique features. First, unlike the litigation it most resembles -- tobacco -- the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.
Second, more than 400 of the opioid cases have now been consolidated before a single federal judge in a so-called "multidistrict litigation." That judge has chided the federal and state governments for punting the problem to the courts; he has made clear he thinks everyone is to blame; and has vowed to get a settlement, with systemic change as part of it, by the end of 2018 -- a breathtaking pace for resolution that makes his courtroom the game changer.
None of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic. This article details that story.
Wednesday, March 21, 2018
Richard Fallon has published A Theory of Judicial Candor, 117 Colum. L. Rev. 2265 (2017). Here’s the abstract:
This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals and that explains the linkages between the two.
This Essay’s potentially larger contribution lies in its provision of a template for thinking about judicial candor. Different people begin with different understandings or intuitive conceptions. To arbitrate among rival perspectives, this Essay posits that discussion needs to begin with familiar patterns of linguistic usage, but insists that analysis cannot stop there. Against the background of linguistic and theoretical disagreement, intellectual progress requires examination of why we have reason to care about judicial candor in the various senses in which that term can be used. At the last stage, the selection of a conception of judicial candor must turn on normative considerations. Consistent with that credo, this Essay not only explains, but also justifies, its conclusions about what judicial candor minimally requires and about the further ideals that it embodies, even if fallible and time-pressed human judges understandably fall short of ideal candor in many cases.