Thursday, November 14, 2013

Clermont and Eisenberg on Plaintiphobia

Kevin Clermont and Theodore Eisenberg (Cornell) have posted Plaintiphobia in the Supreme Court to SSRN.

Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations of pretrial disposition during the last three decades, had a markedly anti-plaintiff impact. 


November 14, 2013 in Recent Scholarship | Permalink | Comments (0)

Dodson and Starger Map SCOTUS Pleading Cases

Scott Dodson and Colin Starger have posted a one-page chart of Supreme Court pleading decisions.  FRCP 8 Pleading: Supreme Court Doctrine 1957-2011.


Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important pleadings decisions the Supreme Court has ever issued. Yet the voluminous commentary on these decisions has tended to gloss over the complicated genealogy of the Court's pleadings decisions from Conley v. Gibson to today. In particular, a number of under-appreciated cases, including Associated General, Papasan, and Broudo, laid foundation for the breakout Twombly decision. Commentary has further tended to elide subsequent cases, which appear to move away from Twombly and Iqbal, at least in result.

We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.

November 14, 2013 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, November 13, 2013

New Short Articles from ABA Mass Torts Litigation Committee

The Fall 2013 newsletter from the ABA Mass Torts Litigation Committee has several blurbs of possible interest to Civil Procedure professors (the summaries below are in the newsletter's words), including:

Costa Concordia Actions: Florida Courts' Differing Views on Venue 

By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman

Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.

SCOTUS Aims to Resolve Circuit Split in CAFA Parens Patriae Actions 

Undoubtedly, the outcome of this case will impact the "jurisdictional gamesmanship" involved with the litigation of mass-torts actions.



November 13, 2013 in Class Actions, Mass Torts, Recent Scholarship, State Courts | Permalink | Comments (0)

Sunday, November 3, 2013

Benham on the First Amendment in Protective-Order Litigation

Dustin Benham has posted on SSRN his article Dirty Secrets: The First Amendment in Protective-Order Litigation, forthcoming in Cardozo Law Review.


Courts are split on whether the First Amendment limits judges' power to issue protective orders in the pretrial discovery context. Recent events highlight the importance of the issue. During the summer of 2013, a longstanding protective order in a priest-sex-abuse case was finally vacated. The discovery information made public included details about the offenders and information linking a high-ranking church official to efforts to shield church assets from victims’ abuse claims.

Other examples of important information kept from the public abound – pretrial discovery related to dangerous products, industry contamination of a city’s water supply, and domestic spying by the United States government have all been shielded at one time or another by protective orders. This Article contends that the First Amendment should provide significantly more protection for litigant speech in this context.


November 3, 2013 in Discovery, Recent Scholarship | Permalink | Comments (0)

Thursday, October 17, 2013

Shelfer on Supreme Court Special Juries

Lochlan Shelfer has posted on SSRN his note, Special Juries in the Supreme Court, 123 Yale L.J. 208 (2013). Here’s the abstract:

This Note presents the first detailed analysis of the Supreme Court’s only published jury trial, Georgia v. Brailsford (1794). It examines the case’s hitherto unstudied oral arguments and list of potential jurors, and argues that the "special jury" the Court employed was a Mansfieldian special jury of merchants. Brailsford has fascinated scholars both for the intriguing prospect of the Supreme Court presiding over a jury trial, and for the case’s provocative language on the power of juries to find the law. But for all of this interest, the case remains ill-understood. This Note’s conclusion that the Supreme Court used a special jury of merchants offers insights into both of these puzzles.


October 17, 2013 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 16, 2013

Reinert on Meritless Litigation

Alex Reinert (Cardozo) has posted Screening Out Innovation: The Merits of Meritless Litigation to SSRN.

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed to deserving plaintiffs.

Frivolous and merit-less litigation are not the same, however. Frivolous claims are easier to identify at the outset of litigation because they rest on unrecognizable legal theories or fantastical factual allegations. More importantly, merit-less litigation has a distinct and identifiable value that is obscured by conflating merit-less claims with frivolous ones. Unlike frivolous litigation, merit-less litigation can bring to light facts that may lead to systematic reform (even where no legal cause of action lies), lead to legal innovation by announcing new interpretations of common law and statutory and constitutional texts, and pave the way for future changes in the law. Recognizing the value of merit-less litigation and distinguishing merit-less from frivolous cases therefore raises questions about the recent barriers that have been imposed to civil litigation. Taking the value of merit-less litigation into account is essential if we are to strike the correct balance between the costs and benefits of keeping courthouse doors open.


October 16, 2013 in Recent Scholarship | Permalink | Comments (0)

Tuesday, October 8, 2013

Pfander on Ewald: Article III and the Committee of Detail

Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander (Northwestern) entitled James Wilson, the Committee of Detail, and the Federal Judiciary. It reviews a recent article by William Ewald (U. Penn.), The Committee of Detail, 28 Const. Comment. 197 (2012).


October 8, 2013 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, October 3, 2013

Vanderbilt Law Review Roundtable on DaimlerCrysler v. Bauman

The Vanderbilt Law Review recently published its semiannual Roundtable in which includes essays on DaimlerChrysler v. Bauman, set to be argued in the Supreme Court on October 15. Professors Linda Silberman, Burt Neuborne, Donald Childress III, Howard Erichson, and Suzanna Sherry contributed essays on this case and the issue of general jurisdiction. 
The Vanderbilt Law Review website states the following: 
Our current Roundtable considers DaimlerChrysler AG v. Bauman, which is to be argued at the Supreme Court in the October 2013 term. In Bauman, the Court will consider whether a U.S. District Court may exercise general personal jurisdiction over DaimlerChrysler AG, a foreign company, based on the alleged acts of its Argentine subsidiary. None of the alleged actions occurred in California, but Respondents argue that the the contacts of DaimlerChrysler’s California subsidiary should be imputed to the parent company and thus that California may exercise general jurisdiction. The authors have much material to work with on this issue, but how the Court frames the case and answers its important questions is far from clear. The last time the Court took up issues of general jurisdiction was in Goodyear Dunlop Tires, S.A. v. Brown, but the Court left open many questions pertaining to general jurisdiction that it might clarify in Bauman. The Court might also speak to the scope of the Alien Tort Statute in the wake of Kiobel v. Royal Dutch Petroleum.

October 3, 2013 in Conferences/Symposia, Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 2, 2013

Spencer on Pleading and Access to Civil Justice

Now in print is an essay by Prof. Benjamin Spencer (Washington & Lee) entitled Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710 (2013). Here’s the abstract:

Continue reading

October 2, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, September 18, 2013

Kritzer, Liu, and Vidmar on Non-Economic Damages in Civil Jury Awards

Herbert M. Kritzer, Guangya Liu, and Neil Vidmar have posted on SSRN their article An Exploration of Non-Economic Damages In Civil Jury Awards.  This article is forthcoming in William & Mary Law Review.


Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of economic damages increased. We found less consistency in our simple regression models where we predicted the log of noneconomic damages from the log of economic damages. In all of those models, the slopes of the fitted line were positive, but the slopes and the measures of fit (r2) varied from dataset to dataset, and among type of case within those datasets with multiple case types. Also, where we had the same type of case across datasets, we found variation in the fit and slope. With two of the datasets we were able to extend our regression models with regard to medical malpractice cases. Using the RAND jury study from 1995-99 we were able to separate out California’s medical malpractice cases which were governed by the MICRA cap on noneconomic damages from the cases coming from five other states included in the study. We found that MICRA dampened the relationship between economic and non-economic damages. Using the data we coded from on Cook County, Illinois jury verdicts, we were able to expand our regression model to include the NAIC severity index plus the gender and age of the plaintiff. We found no evidence that the two demographic variables systematically influenced the amount of non-economic damages, but the severity of injury did make a difference. Most importantly, we found that the severity of the injury conditioned the relationship between economic and non-economic damages.

September 18, 2013 in Recent Scholarship | Permalink | Comments (0)

Monday, September 9, 2013

Sheehan et al.: A Comparative Perspective on "Haves" and "One-Shotters"

Reginald Sheehan, Stacia Haynie, Kirk A. Randazzo, and Donald R. Songer have posted on SSRN their article, "Winners and Losers in Appellate Court Outcomes: A Comparative Perspective."


The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.

September 9, 2013 in Recent Scholarship | Permalink | Comments (0)

Friday, September 6, 2013

Maybe We Should Try to Be More Interesting? Just a Thought

The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013).  The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students. 

My own classroom policy seems somehow misguided in light of this conclusion.  I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses.   My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out.  After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to. 

By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.




September 6, 2013 in Recent Scholarship, Web/Tech | Permalink | Comments (1)

Monday, September 2, 2013

UCLA Law Review Symposium Issue in Honor of Stephen Yeazell - Twenty-First Century Litigation: Pathologies and Possibilities

The UCLA Law Review's Volume 60 symposium issue is now available. You can find links to the symposium contributions here. The current posts on UCLA Law Review’s Discourse continue the theme. 

September 2, 2013 in Conferences/Symposia, Recent Scholarship | Permalink | Comments (0)

Monday, August 26, 2013

Vladeck on Military Courts and the All Writs Act

Stephen Vladeck (American University) has posted Military Courts and the All Writs Act to SSRN.

When it comes to the role of the federal courts in the federal system, few statutes play as significant a role — or are as routinely misunderstood — as the All Writs Act. It is the All Writs Act that rounds Article III’s sharp jurisdictional edges by investing courts of such limited subject-matter jurisdiction with a species of common-law authority; as Justice Stevens has explained, “The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress, and the statute provides these courts with the procedural tools — the various historic common-law writs — necessary for them to exercise their limited jurisdiction.”

Although the All Writs Act applies on its terms to “all courts established by Act of Congress,” two recent opinions in high-profile military justice cases have rejected the power of military courts to issue relief that is routinely available from civilian courts under the All Writs Act. In the Bradley Manning court-martial proceedings, for example, the highest court in the military justice system — the Court of Appeals for the Armed Forces (CAAF) — held that it lacked the authority under the All Writs Act to issue extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny. Similar reasoning was also offered by one of the judges of the Court of Military Commission Review (CMCR), in explaining why the CMCR lacked jurisdiction to provide analogous relief in the context of the military commission trial of the 9/11 defendants.

It is easy enough to identify the analytical errors common to these two opinions, but in addition to doing so, this short essay argues that there is more behind such analysis than a mere misreading of precedent. Ultimately, both CAAF’s decision in the Manning case and Judge Silliman’s concurrence in the CMCR’s 9/11 proceedings have at their core a misplaced and outdated understanding of both the military justice system’s exceptionalism and its relationship to the civilian courts. As I conclude, the understanding common to these two opinions has the ironic — and surely unintended — effect of weakening arguments for a separate system of military justice insofar as such crabbed understandings of the All Writs Act only bolster the need for increased Article III oversight of the military justice system through actions for collateral review.



August 26, 2013 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Thursday, August 22, 2013

Trammell on Jurisdictional Sequencing

Alan Trammell (Brooklyn Law School) has posted Jurisdictional Sequencing to SSRN.

This Article offers a critical re-assessment of subject matter jurisdiction, arguably the most fundamental constraint on federal courts. The project examines the nature and purposes of subject matter jurisdiction through the lens of jurisdictional sequencing, a practice that allows a federal court to decide certain issues — and even dismiss cases — before it has verified subject matter jurisdiction.

Despite many scholars’ antipathy toward jurisdictional sequencing, it is a legitimate practice that reveals a nuanced understanding of jurisdiction’s unique structural role in protecting federalism and separation of powers. Specifically, elected institutions have principal responsibility for crafting conduct rules that regulate people’s primary activities. Federal courts may interpret and apply conduct rules — and thus in a meaningful sense “make law” — only when they have verified their subject matter jurisdiction. By contrast, federal adjudication does not implicate the structural concerns at the heart of subject matter jurisdiction when courts dismiss cases based on other rules (what I term allocative rules). Re-imagining the precise role of subject matter jurisdiction reveals how federal courts can decide cases more efficiently and also respect essential constraints on the allocation of powers.


August 22, 2013 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, August 20, 2013

Green on the Twin Aims of Erie

Michael Steven Green (William & Mary) has posted The Twin Aims of Erie to SSRN.

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid "forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. Through the twin aims, state law is incorporated into federal procedural common law in order to serve federal interests.

This reading does not merely have important consequences for diversity cases. It also has an impact on the role of the twin aims outside diversity. If the twin aims have their source in the purposes standing behind the congressional grant of jurisdiction, rather than respect for state interests, the fact that a federal court entertains a state law action is neither a necessary nor a sufficient reason for the twin aims to apply. The twin aims might apply to federal courts when entertaining federal causes of action. Conversely, they might not apply to a federal court when entertaining state law actions under jurisdictional statutes other than diversity.

I therefore examine four jurisdictional scenarios in order to assess the role of the twin aims in each: a federal court entertaining a federal cause of action, a state court entertaining a federal cause of action (sometimes called reverse-Erie), and a federal court entertaining a state law action under supplemental jurisdiction and under bankruptcy. In the course of my argument, I suggest a resolution to the current circuit split about whether a federal court sitting in bankruptcy should use forum state choice-of-law rules. I also argue that the Supreme Court has wrongly assumed that the twin aims apply in a reverse-Erie context. As a result, it has improperly limited state courts’ powers when entertaining federal civil rights actions — most recently in Haywood v. Drown, 556 U.S. 729 (2009).

This Article offers an original justification of the twin aims in diversity cases, and the first comprehensive explanation of their role in a variety of other jurisdictional contexts.



August 20, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, August 1, 2013

Viscusi and McMichaels on Punitive Damages

W. Kip Viscusi and Benjamin McMichaels, both of Vanderbilt University, have posted on SSRN their paper, "Shifting the Fat-Tailed Distribution of Blockbuster Punitive Damage Awards."


The distribution of blockbuster punitive damages awards has fat tails similar to the distributions of losses from natural disasters. Extremely large awards occur more often and are more difficult to predict than if blockbuster awards were distributed normally. The size and predictability of awards are important factors in the U.S. Supreme Court’s decisions on punitive damages. This article examines the effect of the Court’s decision in State Farm v. Campbell on blockbuster punitive damages awards. State Farm shifts the fat tail of the distribution of blockbuster awards down (or “thins” the tail), which is consistent with a restraining effect on award size. State Farm reduces the size of blockbuster awards in general, but this reduction is most salient in the upper half of the distribution of awards. State Farm also has a negative influence on the probability of exceeding a single digit ratio between punitive and compensatory damages. This article also examines the largest awards and considers why defendants may not pay large punitive damages awards.


August 1, 2013 in Recent Scholarship | Permalink | Comments (0)

Monday, July 29, 2013

Paik, Black, and Hyman on Decline of Medical Malpractice Litigation

Myungho Paik, Bernard S. Black, and David A. Hyman have posted on SSRN their recent article, "The Receding Tide of Medical Malpractice Litigation Part 2: Effect of Damage Caps," which is forthcoming in the Journal of Empirical Legal Studies.


We study the effect of damage caps adopted in the 1990s and 2000s on medical malpractice claim rates and payouts. Prior studies found some evidence that caps reduce payout/claim, but mixed and weak evidence on whether caps reduce paid claim rates and payout per physician. However, most prior studies do not allow for the gradual phase-in of damage caps, which usually apply only to lawsuits filed after the reform’s effective date, or only to injuries after the effective date. Once we allow for phase-in, we find strong evidence that damage caps reduce both claim rates and payout per claim, with a large combined impact on payout per physician. The drop in claim rates is concentrated in claims with larger payouts – the ones that would be most affected by a damages cap. Stricter caps have larger effects. Some prior studies also find a large impact of tort reforms other than damage caps. Once we allow for phase-in, we find that these other reforms have no significant impact on either claim rates or payout per claim.

A companion article, The Receding Medical Malpractice Part 1: National Trends, is available at


July 29, 2013 in Recent Scholarship | Permalink | Comments (0)

Saturday, July 27, 2013

Engstrom on Twiqbal and the Empirical Study of Civil Procedure

David Freeman Engstrom of Stanford Law School has posted on SSRN his essay, "The Twiqbal Puzzle and Empirical Study of Civil Procedure."


This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.


July 27, 2013 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Friday, July 19, 2013

Cohen on Civil Cases in State Intermediate Appellate Courts

Thomas H. Cohen, of the Administrative Office of the U.S. Courts, has posted on SSRN "Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes."


In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.


July 19, 2013 in Recent Scholarship, State Courts | Permalink | Comments (0)