Thursday, April 27, 2017
Alex Platt has posted on SSRN a draft of his article, Unstacking the Deck: Administrative Summary Judgment and Political Control, which will be published in the Yale Journal of Law & Regulation. Here’s the abstract:
The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as a way for agency prosecutors to avoid “futile” hearings, and courts have upheld it based on the same technocratic approach. Yet administrative procedure is not merely an instrument to be expertly calibrated by administrators; it is a mechanism of political control. When Congress assigns enforcement of a given program to a formal adjudication regime, it is exercising its authority to “stack the deck,” giving defendants access to elaborate procedural protections and limiting or channeling the enforcement program. Administrative summary judgment “unstacks the deck” – it unwinds Congress’s procedural controls and allows an agency to recalibrate its enforcement priorities.
At the Securities and Exchange Commission, many administrative proceedings are now resolved on “summary disposition” without any in-person hearing. The recent expansion of summary dispositions has facilitated a broad shift in the agency’s enforcement priorities towards easy-to-prosecute offenses, enabling the agency to show Congress a “record number of enforcement actions” year after year. That figure has (apparently) significant political value, but does not indicate anything about the effectiveness of the SEC’s enforcement program.
Setting enforcement priorities is a critical function for agencies like the SEC that are charged with enforcing a vast and complex array of legal obligations but which have resources to pursue only a relatively small number of possible violations. Securities scholars have long debated the SEC’s enforcement priorities, but have overlooked the role administrative adjudication procedure plays in shaping those priorities – as both a vehicle for Congressional control and administrative rebellion.
Monday, April 24, 2017
Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).
Thursday, April 13, 2017
Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.
Wednesday, April 12, 2017
Teddy Rave has posted on SSRN his article, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). Here’s the abstract:
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties — the defendant and the lead lawyers for the plaintiffs — at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
Friday, April 7, 2017
Russell Gold has posted on SSRN his article, “Clientless” Lawyers, 92 Wash. L. Rev. 87 (2017). Here’s the abstract:
Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make — and indeed that legal ethics rules would expressly require clients to make in other contexts — such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.
More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.
Thursday, April 6, 2017
Wednesday, March 29, 2017
Nora Freeman Engstrom has posted on SSRN her article, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639 (2017). Here’s the abstract:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Thursday, March 23, 2017
Monday, March 20, 2017
Simona Grossi has posted on SSRN a draft of her article, Procedural Due Process. Here’s the abstract:
Any democratic judicial system must be built on the principle of due process, the fountain from which all procedural rules and doctrines flourish. Understanding the scope and contours of due process is thus crucial to the development of procedural and substantive rules that could achieve the optimal results in a democratic system. Yet the scholarly articles entirely devoted to the topic are scarce to say the least, and most of the relevant monographs have not articulated a theory of due process, but largely provide an historical overview or a survey of the rights that are commonly understood as due process rights.
A theory of due process is missing and this deficiency has, in my opinion, contributed to the lack of a true understanding and, thus, truthful, real investment of the system in the principle.
An article cannot do justice to the complexities and depth of the due process principle. But there are some ideas and insights I thought I might share here, to start defining the theory of procedural due process, and prompt deeper judicial investigation and scholarship on this topic.
Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.
Sunday, March 12, 2017
Anna Carpenter has posted on SSRN a draft of her article, Active Judging and Access to Justice, which will be published in the Notre Dame Law Review. Here’s the abstract:
Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.
Michael Morley has posted on SSRN a draft of his article, The Federal Equity Power. Here’s the abstract:
Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.
Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power.
There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.
Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.
Thursday, March 9, 2017
Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami. Suzette reviews a recent article by Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).
Tuesday, March 7, 2017
Jason Kilborn provides the following guest post on Amalia Kessler’s recent book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale Univ. Press 2017):
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Given the title, I thought the book was about why US lawyers (or our legal culture generally) are so bellicose. Instead, it's about why we gravitated toward lawyer-driven adversarial (accusatorial) procedure, as opposed to European style, judge-driven inquisitorial procedure, and how the result of our choice is now a deeply ingrained part of US legal culture. It's about the fiercely independent US rejection of the canon-civil law approach of chancery/equity (secret, written, controlled by bureaucrats, headed by one elitist chancellor) in favor of the supposedly more democratic law courts (open, oral, lawyer-driven, headed by many judges and involving juries in fact-finding). It thus nicely supplements other recent books, like Suja Thomas's on the key role of our (all but moribund) trial-and-jury process as a key aspect of our democracy (http://sujathomas.com/missing-american-jury/).
Monday, March 6, 2017
Now on the Courts Law section of JOTWELL is Alexandra Lahav’s essay, (Almost) Everything You Wanted to Know About Class Actions. Alexandra reviews John Coffee’s recent book, Entrepreneurial Litigation: Its Rise, Fall, and Future.
Friday, February 24, 2017
Maria Glover has published A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017). Here’s the abstract:
Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”
This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.
Thursday, February 23, 2017
Paul Gugliuzza and Megan La Belle have posted on SSRN a draft of their article, The Patently Unexceptional Venue Statute, which will be published in the American University Law Review. Here’s the abstract:
Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct.
This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond.
This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation.
Wednesday, February 22, 2017
Simona Grossi has posted on SSRN a draft of her article, The Claim. Here’s the abstract:
I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.
I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.
My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.
Monday, February 20, 2017
Elizabeth Burch has recently published Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Here’s the abstract:
When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.
Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety may peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that may permit lead lawyers to act, at times, like a cartel.
Thursday, February 16, 2017
Theodore Eisenberg (deceased), Geoffrey Miller, and Roy Germano have posted on SSRN their paper Attorneys' Fees in Class Actions: 2009-2013, a follow-up to earlier studies.
We study attorney fee awards in 458 class action settlements reported in the five years from 2009-2013. Despite the financial crisis and its many effects on our national life, little has changed in class action attorneys’ fees. Average percentage fees are in line with prior studies. The key determinant of the fee continues to be the size of the class recovery: the amazingly regular relationship between these variables continues in the present data. We continue to find a “scaling” effect, in the sense that fees as a percentage of the recovery decrease as the size of the recovery increases. As in the previous Eisenberg-Miller studies, we find that fees are a function of risk – larger fees in higher-risk cases – although in the most recent data the effect is only weakly statistically significant. We document an inverse relationship between the percentage fee and the lodestar multiplier: cases with lower percentage fees are associated with higher multipliers. Likewise lodestar multipliers tend to rise with the size of class recovery.