Tuesday, June 23, 2015

Moore on the Pending Amendments to the FRCP

Forthcoming in the University of Cincinnati Law Review is my article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees.


In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, the pending amendments to the Federal Rules of Civil Procedure hurt David and help Goliath more than any previous round of amendments. The amendments represent corporate defendants' victory in the thirty-year war to limit the scope of discovery by enshrining "proportionality" as part of the definition of, rather than a limitation on, the scope of discovery. The amendments will also make it more difficult for plaintiffs to obtain an adverse inference jury instruction or other sanctions for a defendant’s intentional loss of electronic evidence. For no good reason, the amendments will reduce the length of time within which plaintiffs must effectuate service of process, thereby gifting defendants with a corresponding reduction in the statute of limitations. In addition, the amendments wipe out thirty-six official forms, on the thin excuse that the Advisory Committee wants to "get out of the forms business"; in fact, many interpret the move as a tacit agreement with the heightened pleading standard imposed on plaintiffs by the Supreme Court in Twombly and Iqbal.

The amendments' mostly anti-plaintiff effect is evidenced by a stark split in the public reaction, with plaintiffs’ lawyers almost unanimously against most of the amendments and defendants’ lawyers almost unanimously in favor. But the Advisory Committee was astoundingly indifferent to the polarized public reaction to the proposed amendments. One Advisory Committee member dismissed the stories told at the public hearings by plaintiffs' lawyers about their need for discovery as "Queen-For-A-Day issues," a reference to a 50-year-old daytime television show in which women tearfully told their real-life sob stories to vie for prizes.

Remarkably, in evaluating the need for these amendments, the Committee did not rely on very much case law, any government caseload statistics, or any of the ninety-four district court reports on “cost and delay” mandated by the Civil Justice Reform Act of 1990. Instead, the Committee commissioned a mound of so-called “empirical studies” which consisted mostly of flawed opinion surveys of self-selected attorneys. The one methodologically sound study, conducted by the Federal Judicial Center, found that discovery worked well and at modest cost in most federal cases. The Committee either ignored or mischaracterized the FJC’s study.

Given the makeup of the Advisory Committee and the Standing Committee, none of this is surprising. The members of both committees are all appointed by Chief Justice John Roberts, and except for a few tokens, they are ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, and/or experientially predisposed to think like corporate defense lawyers. There is no explicit constitutional, statutory, or rules authority for the Chief Justice’s unbridled appointment power. The Article concludes by forecasting the passage of a default “requester pays discovery costs” rule that is sought by defense interests, unless the mechanism for appointment of federal rules committee members is changed.

June 23, 2015 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

The Fusion of Law and Equity in the Field Code

Forthcoming in the Journal of Legal History is an article by Princeton Ph.D. candidate Kellen Funk entitled Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76.


The Field Code of Civil Procedure — enacted in New York in 1848 and adopted by a majority of American jurisdictions thereafter — helped develop the modern American trial and influenced law reform in England. Leading accounts of the Code, however, ignore nineteenth-century New York practice which spurred its development, particularly the problems of fusing the separate systems of common law and equity. This Article recovers that context and shows that despite scholarly claims to the contrary, the Code’s drafters mainly sought to extend New York’s equitable procedures to all civil cases. They expected, however, that equitable remedies and procedures could be divorced from the structures of chancery. In the Code, a paradigm of substantive rights and procedural remedies replaced the old division between law and equity. David Dudley Field’s influential theory of fusion thus sought to expand the practice of equity, but without the courts of equity.

June 23, 2015 in Recent Scholarship | Permalink | Comments (0)

Tuesday, June 9, 2015

Thornburg on Schwartz on Litigation and Organizational Introspection

Now available on the Courts Law section of JOTWELL is an essay by Beth Thornburg entitled Discovery and Self-Improvement. Beth reviews Joanna Schwartz’s recent article, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055 (2015).



June 9, 2015 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Saturday, June 6, 2015

Moore on the Civil Caseload of the Federal District Courts, Revised and Published

Over a year ago, I reported the posting of a draft of my article, The Civil Caseload of the Federal District Courts.  It has now been revised and published in The University of Illinois Law Review, Vol. 2015, No. 3.  The paper is also posted on SSRN.


This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in the overall volume and duration of federal civil litigation since 1986, suggests a proper methodology for measurement, and shows that the rate of increase of civil filings is less than the growth in the country’s population and the increase in judicial resources in civil cases, noting that any increase must be attributable to the criminal docket. Next, this Article studies the rates at which cases are terminated by various methods, noting today’s primary method is before pretrial with court action due to dispositive motions and judicial management. Third, this Article tracks and explains changes in the “Big Six” categories of civil litigation. Finally, this Article emphasizes the need to look at the government’s caseload statistics to note that the federal civil caseload has been relatively stable for twenty-five years.

June 6, 2015 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Thursday, April 30, 2015

Lee et al. on Multidistrict Centralization

Emery G. Lee III, Catherine R. Borden, Margaret S. Williams, and Kevin M. Scott have published in Volume 12, Issue 2 of the Journal of Empirical Legal Studies their article, Multidistrict Centralization: An Empirical Examination. 


Following the judiciary's experience with aggregate litigation in the 1960s, Congress established a procedure for the transfer of related cases to a single district court for coordinated pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting point to become a central part of aggregate litigation in the federal courts today. Despite its importance, however, there is little empirical research on the MDL process. This article seeks to fill this gap in the empirical literature by addressing a few central questions about the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database, we examine how that body decided motions to centralize multidistrict litigation. We find, most importantly, that the Panel became more likely to order centralization of proceedings over time, after controlling for other factors. That trend is not, however, apparent in the most recent years' data. We also find, all else equal, that the Panel is more likely to centralize a proceeding including class allegations, and more likely to centralize proceedings raising certain kinds of claims.

April 30, 2015 in MDLs, Recent Scholarship | Permalink | Comments (0)

Sunday, April 19, 2015

Lavie on Jurisdictional Reversal Rates

Shay Lavie has published Are Judges Tied to the Past? Evidence from Jurisdiction Cases in the Hofstra Law Review. Here’s the abstract:

Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case if the trial judge invested a large amount of resources in coming to a decision.

To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this Article finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdictional determination. This correlation is statistically significant and non-trivial in size.

This Article then discusses the normative implications of this phenomenon. The major implication is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.



April 19, 2015 in Recent Scholarship | Permalink | Comments (0)

Tuesday, April 14, 2015

Campos on Davis on Standing and State Action

Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).



April 14, 2015 in Federal Courts, Recent Scholarship, Standing, Weblogs | Permalink | Comments (0)

Thursday, April 2, 2015

Mullenix on Robreno on Litigation's Black Hole

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).



April 2, 2015 in Mass Torts, MDLs, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, March 31, 2015

Atlantic Marine, Forum-Selection Clauses & Erie

I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District CourtAtlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.

The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:

The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago. 

This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.

My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.

[Cross-posted at PrawfsBlawg]


March 31, 2015 in Adam Steinman, Conferences/Symposia, Federal Courts, Recent Decisions, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 26, 2015

Lens on Stays Pending Appeal

Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract: 

In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.





March 26, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Friday, March 20, 2015

Macfarlane on A New Approach to Local Rules

Katherine Macfarlane (Louisiana State University) has published in the Stanford Journal of Civil Rights and Civil Liberties (Vol. 11, 2015) an article entitled A New Approach to Local Rules.


The Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed.

Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.

March 20, 2015 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, March 17, 2015

Fitzpatrick on Class Actions

Brian Fitzpatrick (Vanderbilt) has posted two new articles to SSRN on class actions.

The End of Class Actions: In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court’s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers — and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether — I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders.

An Empirical Look at Compensation in Consumer Class Actions:  Consumer class actions are under broad attack for providing little in compensation to class members. One response to this charge is the argument that one of us has made elsewhere: consumer class actions should not be measured by their compensatory value but by their deterrence value. But here we take up this critique of consumer class actions on its own terms: can they serve a meaningful compensatory role? Scholars have taken up this question before, but they have been stymied by the lack of available data. In this article, we present original data on the distribution of class action settlements in fifteen related small-stakes consumer class action lawsuits against some of the largest banks in the United States. We obviously can make no claim that these settlements are representative of most consumer class actions. Nonetheless, we believe our findings support the notion that, under certain circumstances, consumer class actions can indeed serve a meaningful compensatory role: when they eschew claim forms in favor of automatic distributions and when they rely on direct deposits or standard-sized checks rather than the cheaper, postcard-sized variety to make those distributions.


March 17, 2015 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tidmarsh on Zimmerman on Presidential Settlements

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh entitled The Settler-in-Chief. Jay reviews Adam Zimmerman’s recent article, Presidential Settlements, 163 U. Pa. L. Rev. (forthcoming 2015).





March 17, 2015 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, March 10, 2015

Hines and Hines on Punitive Damages

Laura J. Hines (University of Kansas School of Law) and N. William Hines (University of Iowa College of Law) have posted on SSRN their article, Constitutional Constraints on Punitive Damages: Clarity, Consistency, and the Outlier Dilemma, 66 Hastings L.Rev. No. 2, 2015, U Iowa Legal Studies Research Paper No. 15-04.


It is now almost 20 years since the Supreme Court added a constitutional dimension to U.S. punitive damages law. In 1996, in BMW v. Gore the Court created three “Guideposts” to assist lower courts in implementing the newly required due process review of all punitive damages awards to check for unconstitutional excessiveness. The authors were curious to learn how these “Guideposts” were working out in practice with state and federal courts conducting this mandated excessiveness review. To help satisfy this curiosity the authors collected and carefully studied all of the 527 state and federal punitive damages judicial opinions published between 2003 and 2013. This paper reports the results of this project.


March 10, 2015 in Recent Scholarship | Permalink | Comments (0)

Thursday, February 26, 2015

Erbsen on Klerman & Reilly on Forum Selling

Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen entitled Judicial Competition for Case Filings in Civil Litigation. Allan reviews a recent article by Daniel Klerman & Greg Reilly, Forum Selling, the current draft of which you can find on SSRN.



February 26, 2015 in Federal Courts, Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)

Monday, February 23, 2015

Dodge on International Comity

Bill Dodge has posted on SSRN a draft of his article, International Comity in American Law, which will be published in the Columbia Law Review. Here’s the abstract:

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. I show that international comity doctrines are frequently expressed as rules rather than standards, and that courts are usually in a better position to apply them than the executive branch.




February 23, 2015 in Federal Courts, International Courts, International/Comparative Law, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, February 20, 2015

Thomas & Price on the Federal Rulemaking Process and Atypical Cases

Suja Thomas and Dawson Price have posted on SSRN a draft of their article, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, which will be published in the Nevada Law Journal. Here’s the abstract:

Commentators have criticized the rulemaking process for decades. Legal scholarship has focused primarily on challenging its constitutionality, questioning whether different actors make better rulemakers, and arguing that some entities have too much power and others have too little. Other commentators have focused on the tools that should be employed by rulemakers when evaluating proposals, focusing on the importance of empirical studies to support rule changes and the role of bias in the formulation of certain rules. In this symposium article, we add to this scholarship by arguing that advisory committees should refrain from proposing and adopting rule amendments that are motivated by atypical cases. Such rules will also affect typical cases, creating bad law for typical cases because the rules were not formulated for such cases. The article describes the thesis of a previous article on how atypical cases make bad law and applies the framework to a current amendment to change the scope of discovery, showing atypical cases make bad rules.



February 20, 2015 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, February 18, 2015

Frost on State Courts and Lower Federal Court Precedent

Amanda Frost has posted on SSRN her recently published article, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015). This has been an important issue, of course, in the recent litigation over Alabama’s same-sex marriage ban. Last week Alabama Supreme Court Justice Bolin cited the article in an opinion concurring in the refusal to hear the Mobile probate judge’s action seeking clarification of Chief Justice Moore’s earlier order instructing probate judges not to issue same-sex marriage licenses.

Here’s the abstract:

Continue reading

February 18, 2015 in Federal Courts, Recent Scholarship, State Courts | Permalink | Comments (0)

Wednesday, February 11, 2015

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).



February 11, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Friday, January 30, 2015

Coleman on "Civil-izing Federalism"

Brooke Coleman, Seattle University School of Law, has posted on SSRN her article, "Civil-izing Federalism," published in Tulane Law Review.


When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts.

This Article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the Article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This Article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system.


January 30, 2015 in Recent Scholarship | Permalink | Comments (0)