Wednesday, April 23, 2014
Alan Trammell (Brooklyn Law School) has posted Transactionalism Costs to SSRN.
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them.
First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion and estoppel doctrines on the back end of litigation). But frequently it is neither.
I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion and estoppel will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy — the power to shape preclusion and estoppel doctrines. Finally, it will offer certainty and predictability that parties never have had before — knowing exactly how broadly preclusion and estoppel will apply.
Tuesday, April 15, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Cy Pres in Class Action Settlements, which will be published in the Southern California Law Review. Here’s the abstract:
Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”
Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because its fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.
To minimize over-reliance on cy pres distributions and to tailor them to serve the best interests of the class, the Article makes four pragmatic recommendations. First, to align the interests of class counsel and the class, courts should presumptively reduce attorneys’ fees in cases in which cy pres distributions are made. Second, to ensure that class members and courts have the information they need to assess the fairness of a settlement that contemplates a cy pres distribution, class counsel should be required to make a series of disclosures when it presents the settlement for judicial approval. Third, to inject an element of adversarial conflict into the fairness hearing and to ensure that the court receives the information needed to scrutinize the proposed cy pres distribution, the court should appoint a devil’s advocate to oppose it. Finally, the court should be required to make written findings in connection with its review of any class action settlement that contemplates a cy pres distribution.
Jay Tidmarsh (Notre Dame) has posted Resurrecting Trial by Statistics to SSRN.
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.
After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a court conducts trials in a random sample of cases and averages the results, as in trial by statistics. It then presumptively applies the average award to all other cases, but, unlike trial by statistics, any party can reject the presumptive award in favor of individual trial. The Article describes the circumstances in which parties have an incentive to contest the presumption, and explores a series of real-world issues raised by this approach, including problems of outlier verdicts, strategic behavior by parties, and the parties’ risk preferences. It proposes ways to minimize these issues, including a requirement that the party who reject a presumptive judgment must pay both sides’ costs and attorneys’ fees at trial.
The Article concludes by showing that this approach is consonant with important procedural values such as efficiency, the accurate enforcement of individual rights, dignity, and autonomy.
Wednesday, April 9, 2014
Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:
The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.
Tuesday, April 8, 2014
Joe Seiner (South Carolina) has posted on SSRN a draft of his article The Issue Class, which will be published in the Boston College Law Review. Here’s the abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?
Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.
This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.
Thursday, March 27, 2014
I have recently posted on SSRN a draft of my paper, The Civil Caseload of the Federal District Courts, which is forthcoming in the University of Illinois Law Review. The paper examines many of the statistics available from the Administrative Office of the United States Courts, and at the time of finishing the draft, the latest available annual statistics were from fiscal year 2012.
Naturally, within a week of my submitting the draft, the AO came out with the FY2013 statistics. I will be revising this draft to incorporate the latest figures, but for now, I would like to share the draft with the community. I welcome any comments, and feel free to email me (firstname.lastname@example.org) rather than commenting here on the blog.
In the fractious debate about the civil justice system, the dominant narrative of the Civil Rules Advisory Committee is that federal civil litigation takes too long and costs too much and that pretrial discovery is largely to blame. After repeatedly narrowing the federal discovery rules over the last thirty years, the Advisory Committee has recently proposed yet another round of rules amendments designed to limit discovery. These proposals have generated an unprecedented amount of passionate (and largely negative) public comment.
Strangely, to justify its position that civil litigation is subject to unacceptable delays, the Advisory Committee has not used the government's own caseload statistics – even those statistics that were instituted in 1990 for the very purpose of measuring "delay." Nor has the Advisory Committee examined caseload statistics to see whether the proportions of different types of civil cases have changed over time, or how those changes might be relevant to its proposed restrictions on discovery.
This article fills in those gaps. Examining the voluminous publicly-available statistics on the federal courts, I offer a radical interpretation: since 1986, instead of an "explosion" of the civil docket, the opposite has occurred: if not quite an implosion, at least stagnation. For example, the number of new civil cases filed since 1986 has increased a mere 1%, and the number of weighted civil filings per authorized district court judge has actually declined 1% since 1986. It is the criminal docket that has overwhelmed the civil docket, but it is civil litigation that has been the target of endless "reform" efforts.
Moreover, five of the six largest categories of federal civil case types today are those that are typically brought by the "have-nots" of society: individuals pressing tort, prisoner, civil rights, labor, and Social Security claims. Contract cases, the only large category primarily brought by organizations, have fallen to only 9% of civil case filings. Of all litigants in the top three categories of cases, civil rights litigants have the most to fear from the proposed discovery amendments: most federal tort litigation is already under coordinated pretrial discovery in conjunction with multidistrict litigation, and there is little discovery in prisoner litigation. Policy discussions about civil litigation should explicitly consider how proposals would impact the majority of individuals seeking relief in the federal courts.
Adam Zimmerman (Loyola Los Angeles) has posted Presidential Settlements to SSRN.
Large groups repeatedly turn to the White House to collectively resolve complex disputes, much like a class action. Such presidential settlements go back at least as far as the early republic, as well as the Progressive Era, when Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even, football. More modern variants include mass compensation schemes like the Holocaust Victim Settlement, Pan Am Flight 103 Settlement, and the BP Oil Spill Settlement brokered by Presidents Clinton, Bush and Obama. In each case, the President helped resolve a sprawling class action-like dispute among warring parties, while also advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.
But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, he resolves them like other forms of complex litigation, but without the judicial review, transparency, and participation thought necessary to resolve potential conflicts of interests among the victims. The Presidents’ other duties as the Chief Executive also aggravate conflicts with groups who may rely entirely on such settlements for relief.
This Article recommends that the President adopt complex litigation principles to reduce conflicts of interests, to increase transparency, and to improve public participation in White House driven settlements. Envisioning the President as the “Settler-In-Chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlement practice consistent with the Separation of Powers.
Tuesday, March 25, 2014
Expanding their earlier map of SCOTUS pleading cases, Scott Dodson and Colin Starger have now produced a seven-minute video visually demonstrating the relationship between the cases. You can watch this interesting endeavor here.
A more traditional form of the paper will appear this spring in the Federal Courts Law Review.
Saturday, March 22, 2014
Michael Morely (Harvard Law School) has posted Avoiding Adversarial Litigation to SSRN.
There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole, or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, stipulations of law, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the same underlying structural similarity, however, courts should apply a single, consistent, unified standard to all of them.
Article III’s prohibition on hypothetical suits places outer bounds on the range of false factual and legal premises on which a court may base a judgment. Courts should go beyond this constitutional minimum, however, and apply an accuracy-centric approach in deciding whether to issue requested relief when litigants inadvertently or deliberately, expressly or implicitly, seek to have the court avoid considering the merits of a claim, issue, or argument in a case. If the court — based on its background knowledge of the law, experience with similar cases, or independent legal research — harbors doubts about the validity of a litigant’s legal premises or contentions, or believes the parties have overlooked a potentially valid claim, issue, or argument, it should decline to grant the requested relief and direct the litigants to brief the matter.
Adopting an accuracy-centric approach helps courts perform not only their law-declaring function of expounding the law and generating accurate precedents, but their dispute-resolution function, as well. Litigants, the public, and courts themselves have a strong interest in having courts resolve cases, and issues in cases, in accordance with the substance of applicable law, even when they are acting primarily in a dispute-resolution capacity.
Friday, March 21, 2014
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Recognizing the Value of Failure in Civil Litigation. It reviews a recent article by Alex Reinert (Cardozo), Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. (forthcoming).
Monday, February 17, 2014
It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson.
Friday, February 14, 2014
The NBA starts its all-star break today. The U.S. Supreme Court is on break as well, and it too is right at the midpoint of the season. The Term has already been quite active on the civil procedure and federal courts front, with decisions on personal jurisdiction, Younger abstention, transfer of venue, the Class Action Fairness Act, and appellate jurisdiction. And there’s more on the horizon:
- Walden v. Fiore (venue and personal jurisdiction);
- Halliburton v. Erica P. John Fund (class actions);
- Wood v. Moss (on qualified immunity and, perhaps, pleading standards more generally);
- Highmark v. Allcare and Octane Fitness v. Icon Health (two cases on awarding attorneys’ fees in patent cases);
- Petrella v. MGM (laches in civil copyright claims)
- Executive Benefits Insurance Agency v. Arkison (Article III and bankruptcy proceedings);
- UBS Financial Services v. Union de Empleados de Muelles (Rule 23.1’s pre-suit demand requirement)
Why do we pay so much attention to these cases? For most court-watchers, it’s not because there is a strong interest in whether a Massachusetts gravel supply company underpaid its benefit fund obligations. Rather, it’s because of what the Supreme Court’s decisions mean going forward. Because of stare decisis, judicial decisions can prospectively bind future courts just as an Act of Congress or a Federal Rule of Civil Procedure can. In many areas of procedure, Supreme Court decisions may be the most significant lawmaking acts we’re going to see.
With that in mind, I thought I would share a link to my recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Virginia L. Rev. 1737 (2013). The article was driven in part by the struggle to figure out the precedential effect of controversial Supreme Court decisions like Wal-Mart and Iqbal. But I try to tackle more generally the question of what parts of a judicial decision should actually create binding law, and in what way. Here’s the abstract:
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions — Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal — turn this conventional wisdom on its head. In both cases, what the Court said about the governing rules was not inherently controversial, and would leave courts with considerable flexibility going forward. But what the Court did in applying those rules — the ultimate results in Wal-Mart and Iqbal — could be very destabilizing if stare decisis mandates consistency with those results in future cases.
This article assesses competing approaches to stare decisis, and argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case. While the end result may be instructive, enlightening, or valuable for any number of reasons, it should not create binding obligations on future courts as a matter of stare decisis. A rules-only approach is an unconventional position (even those who favor rule-based stare decisis typically presume that consistency with results is also required). But it strikes the optimal balance. To infer binding obligations from results alone creates a risk that — as with Wal-Mart and Iqbal — future courts will be forced to intuit more radical legal changes than the precedent-setting court actually embraced. Put simply, a judicial decision should create binding law only to the extent that it says what the law is. Unless and until new legal rules are declared (whether by the judiciary in later cases or by legislation), courts should be free to operate within the existing legal framework, without being required to reconcile their decisions with the mere results of earlier ones.
Thanks again to the editors at the Virginia Law Review, who did a fantastic job on the article, and to the many colleagues who gave me such terrific feedback and suggestions.
Thursday, February 13, 2014
Victor D. Quintanilla has published Critical Race Empiricism: A New Means to Measure Civil Procedure, 3 U.C. Irvine L. Rev. 187 (2013).
From the Introduction:
In this Article, I first discuss why social psychology offers a fertile source for both theory and methods to explore CRT. Drawing on social-psychological theory and methods, I then conduct an empirical legal study of judicial decision making under the U.S. Supreme Court's new, highly subjective pleading standard. Although one of my previous projects yielded similar findings, I have updated my empirical legal analysis in three ways. First, I have extended the time horizon from eighteen months to twenty-four months, increasing the sample size of cases I analyze, and thereby increasing the power of my study. Second, I now compare and contrast how White and Black judges apply both the old and new pleading standards. This comparison offers a baseline to evaluate whether the new pleading standard produces differences in how White and Black judges decide motions to dismiss Black plaintiffs' claims of race discrimination. Third, to assess whether the race of federal judges predicts how they apply the new pleading standard, I conducted multiple and sequential regressions, which pitted judges' race against their political ideology.
This enhanced empirical legal study supports the conclusion that the new pleading standard serves as a context for aversive racism, implicit bias, and lay theories of racism to operate against stereotyped-group members who assert claims of discrimination. Under notice pleading, White and Black judges decided discrimination claims similarly; yet under plausibility pleading, White and Black judges decided these claims differently. White judges were much more likely to dismiss the claims of stereotyped-group members, even after controlling for political ideology. This strongly suggests that, because plausibility pleading requires judges to draw on their “judicial experience and common sense,” federal judges are drawing on their lay theories of discrimination, their priors, their schemas, and their stereotypes when judging the plausibility of discrimination claims. These findings also suggest that implicit bias is operating against Black plaintiffs. This empirical study is but one of many means to harness empirical methods to explore CRT. The study, moreover, illustrates how infusing CRT with empirical legal methods illuminates implicit bias in legal decision making and the process by which race and law interact.
Thursday, February 6, 2014
Prof. Ernest Young (Duke) has posted on SSRN his article, A General Defense of Erie Railroad Co. v. Tompkins, 10 J. Econ. L. & Pol’y 17 (2013). Here’s the abstract:
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision of all time” (Suzanna Sherry). Other scholars, such as Caleb Nelson and Michael Green, have been less damning in their conclusions but nonetheless raised serious questions about Erie’s reasoning. Out in the real world, Erie’s restrictive vision of federal lawmaking has been undermined and circumvented by unfettered executive lawmaking and expansive theories of federal common law.
This article undertakes to rescue Erie from its critics. Rather than reinventing the case’s rationale, I argue that Justice Brandeis’s reasoning was fundamentally sound. Although the case Erie overruled — Swift v. Tyson — was surely correct when decided, Justice Brandeis rightly read the Rules of Decision Act to foreclose the broad practice of “general federal common law” that had arisen by the end of the nineteenth century. And Brandeis was right to worry about divergence between the law applied in state and federal courts sitting within the same jurisdiction. Most important, Erie announced a constitutional principle of judicial federalism — that federal courts may not make law on their own, even in areas where Congress could legislate. This principle forms the intellectual core of modern federalism doctrine, which is primarily concerned with procedural and political limits on national lawmaking.
More ambitiously, I hope that by shoring up Erie’s intellectual foundations this essay may lend support to the vision of limited federal lawmaking that Erie embodied — that is, one in which the federal separation of powers reinforces federalism by limiting the occasions on which federal lawmaking may displace state law. That vision is of more than theoretical import. Its implications may govern practical controversies ranging from the domestic force of customary international law to the preemptive effect of federal regulatory policies on state tort law. Likewise, in an era of resurgent dynamism at the state level, Erie’s respect for the preservation of state prerogatives in the absence of a federal legislative consensus takes on renewed importance.
Saturday, February 1, 2014
Suja Thomas' recent article, How Atypical, Hard Cases Make Bad Law (See, e.g., the Lack of Judicial Restraint in Wal-Mart, Twombly, and Ricci), was posted on SSRN some months ago, but has just been published at 48 Wake Forest L. Rev. 989.
Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.
Friday, January 31, 2014
Andrew Hull, law clerk to the Chief Administrative Law Judge of the Drug Enforcement Administration, has posted on SSRN his article, Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition.
Despite blatant jury misconduct that can result in an improper guilty-verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place. Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.
Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury. Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition. As will be discussed further, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the jury’s subjective deliberative process of reaching a verdict.
Part I of this paper describes the history of Rule 606(b) and its underlying policies. Part II discusses the origin of this rule — a case decided by the renowned Lord Mansfield — and questions its legitimacy as a bedrock principle in the common law tradition. Part III analyzes the policy of finality at the expense of overlooking certain juror misconduct in light of historical writings surrounding trial by jury. Finally, Part IV provides a suitable amendment to Rule 606(b) that embraces both a holistic understanding of a just trial by jury while also respecting the inviolate nature of the process of jury deliberation.
Monday, January 6, 2014
Brooke Coleman has posted an essay on SSRN, "Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms." Professor Coleman is testifying this week in Phoenix at the Civil Rules hearing, and the essay reflects the comments she intends to make.
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof — after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.
Wednesday, December 18, 2013
William H. J. Hubbard (University of Chicago) has posted A Theory of Pleading, Litigation, and Settlement to SSRN.
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important cases on pleading in fifty years. A large literature argues that these cases have raised pleading standards, empowered federal judges as the gatekeepers to federal court, and undermined the “liberal ethos” of the Federal Rules of Civil Procedure. This understanding of pleading doctrine has in turn led to predictions of dramatic effects on dismissal rates, particularly for claims, such as employment discrimination claims, where plaintiffs often lack knowledge of the defendant’s intent at the outset of the case. The accumulating empirical evidence, however, confounds these predictions. Why have the most significant pleading cases in 50 years had virtually no statistically significant effects? Why, in an era of heightened pleading, do defendants file motions to dismiss in only 6 percent of cases? Why have employment discrimination cases been largely unaffected by Twombly and Iqbal? To explain these puzzles, I develop a new theory of pleading, in which pleading practices are not driven by pleading rules and doctrine, but by litigation strategy, and in particular the use of detailed pleadings to precipitate early settlement. I argue that even in a world with no motions to dismiss, we should expect detailed, plausible pleadings to be the norm. I conclude by arguing that Twombly and Iqbal advance rather than weaken the “liberal ethos” of the Federal Rules. Viewed in this light, Twombly and Iqbal point us to a crucial margin on which they may — or may not — have had a hard-to-detect but potentially important effect: with respect to a small, but disproportionately expensive, set of cases.
Monday, December 9, 2013
Professors Charlie Sullivan and Tim Glynn (Seton Hall) have uncovered what appears to be a draft Supreme Court opinion in Pasquinade v. Quillet Enterprises, Inc. Or not. Here’s the abstract:
The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States. Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.
In light of its unverified origins, the Pasquinade opinion should not be cited as authority. Nevertheless, it contains a few points of interest, and, who knows, could represent a kind of trial run by the Justice who supposedly authored it, complete with reaction to anticipated dissent. We express no opinion on the matter and merely offer Pasquinade “for what it’s worth.”
Saturday, November 23, 2013
Scott Dodson (UC - Hastings) has posted Party Control of Judicial Authority to SSRN.
American civil litigation operates under a presumption of party control. Parties get to frame the lawsuit structure, factual predicates, and legal arguments, while the court intervenes to decide any motions the parties choose to make. Dedication to the principle of party control has expanded, spawning ubiquitous ex ante waivers and agreements that purport to bind the court, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind the trend is that parties do in fact exercise significant control over judicial authority. This Article challenges that assumption by introducing a theory of party/judge independence. Under this theory, parties have no control over judicial authority except where specifically granted such control by law. This theory of party/judge independence spawns a correlative theory of party/law independence, which posits that parties cannot change the law governing the court. Together, these theories of party/judge and party/law independence mean that the law — not party agreement — binds the court; and even when parties can lawfully make litigation choices, those choices generally do not bind the court. Independence suggests that the trend toward litigation customization is on shakier footing than previously acknowledged, while reorienting some key elements of the normative debate surrounding customization. Independence also exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. Together, the theories of party/judge and party/law independence shift the way the federal litigation system views the relationship among parties, courts, and the law.