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.
Friday, February 3, 2017
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, Eight Is Enough. Howard reviews Eric Segall’s article, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court.
Tuesday, January 31, 2017
Jonathan Remy Nash (Emory) has posted Sovereign Preemption State Standing to SSRN.
When does a state have standing to challenge the executive branch’s alleged under-enforcement of federal law? The issue took on importance during the Obama administration, with “red states” suing the executive branch over numerous issues, including immigration and health care. The question of standing looks to remain critical during the Trump administration, only with the political orientation of the actors reversed.
This Article argues in favor of sovereign preemption standing, under which a state would enjoy Article III standing to sue the federal government when (i) the federal government preempts state law, yet (ii) the executive branch allegedly under-enforces the federal law that Congress enacted to fill the regulatory gap to which the preemption gave rise. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury — that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the executive branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry.
The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state-federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Alternatively, sovereign preemption state standing also can be construed somewhat more broadly so that it applies not only to the setting of executive branch under-enforcement, but to the setting of horizontal federal disagreement in general — i.e., to the setting of executive branch over-enforcement as well.
Nick Parrillo has posted on SSRN a draft of his article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power. Here’s the abstract:
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years.
These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply?
What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent.
Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.
Tuesday, January 24, 2017
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Infusing Civil Rulemaking with Economic Theory. Linda reviews Paul Stancil’s recent article, Substantive Equality and Procedural Justice, which is forthcoming in the Iowa Law Review.
Friday, January 20, 2017
Aaron Bruhl has posted on SSRN a draft of his article, One Good Plaintiff is Not Enough. Here’s the abstract:
This Article concerns an aspect of Article III standing that has figured in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to assume that all plaintiffs have standing as long as one plaintiff has it and then decide the merits either for or against all plaintiffs despite doubts as to the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”
This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if all of them present similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains why the one-plaintiff rule is harmful as a practical matter, namely because it assigns concrete benefits and detriments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could attain such widespread acceptance despite the importance usually attributed to respecting Article III’s limits on judicial power. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.
Thursday, January 19, 2017
Joanna Schwartz has posted on SSRN a draft of her article, How Qualified Immunity Fails. Here’s the abstract:
Qualified immunity is a judicially created doctrine that shields government officials from constitutional claims for money damages, even if those officials have violated plaintiffs’ constitutional rights, so long as those constitutional rights are not clearly established. Courts and commentators share the assumption that the doctrine affords a powerful protection to government officials. And the Supreme Court has repeatedly explained that qualified immunity must be as powerful as it is to protect government officials from burdens associated with participating in discovery and trial. Yet the Supreme Court has relied on no empirical evidence to support its assertions that litigation imposes these burdens on government officials, or that qualified immunity doctrine protects against them.
This Article reports the results of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation, with particular attention paid to the frequency with which qualified immunity disposes of cases before discovery and trial. Based on my review of 1183 cases filed against law enforcement defendants in five federal court districts, I find that qualified immunity infrequently functions as expected. Fewer than 1% of Section 1983 cases in my dataset were dismissed at the motion to dismiss stage and just 2% were dismissed at summary judgment on qualified immunity grounds. After describing my findings, this Article considers the implications of these findings for descriptive accounts of qualified immunity’s role in constitutional litigation, the extent to which qualified immunity doctrine meets its policy goals, and possible adjustments to the balance struck between individual and government interests in qualified immunity doctrine.
Will Baude has posted on SSRN a draft of his article, Is Qualified Immunity Unlawful? Here’s the abstract:
The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.
Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.
But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.
Wednesday, January 18, 2017
I have posted my latest article, Trade Secrets, Extraterritoriality, and Jurisdiction to SSRN.
Twenty years ago, Congress passed the Economic Espionage Act of 1996 which criminalized trade secret misappropriation and authorized broad domestic and international enforcement measures against trade secret misappropriation. At the time of its passage, the EEA was lauded by the business community, but it was heavily criticized by scholars who worried that the statute was too broad and too protectionist. In the intervening years, the business sector renewed its complaints about the insufficiency of U.S. trade secret laws, and scholars continued to express skepticism about using criminal law to enforce trade secret policy. Congress recently passed a new statute, the Defend Trade Secrets Act of 2016, which creates a federal private right of action under the EEA for trade secret misappropriation and economic espionage, and authorizes a variety of remedies including injunctions, damages, and seizure of property.
In 2003, I published a student note examining the EEA and arguing that the broad statutory language and potential for extraterritorial enforcement created problems for the United States given our commitments to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS agreement”). Given the recent legislative efforts to expand the EEA to include private enforcement, it is time to revisit and update research on the EEA. This Article examines the new problems and challenges private enforcement of the EEA might present. In particular, this Article considers whether the problems of extraterritorial criminal enforcement extend to the civil context.
This Article proceeds in three parts. Part I gives a brief overview of the DTSA and its relationship to the EEA. Part II demonstrates that expanding the EEA to include civil enforcement creates personal jurisdiction problems. Part III argues that the doctrine of forum non conveniens presents yet another barrier to DTSA proceedings in U.S. courts. The Article concludes by noting that the jurisdictional necessities of civil enforcement under the DTSA set businesses on a collision course with the direction of personal jurisdiction and forum non conveniens law for which they have largely advocated the past few decades. In other words, viewing the DTSA through a jurisdictional lens reveals some of the underlying, understated, and confused purposes of the statute.
Thursday, January 12, 2017
Curtis Bradley and Neil Siegel have published Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017). Here’s the abstract:
Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support nonlegal but obligatory norms of proper governmental behavior—something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957–1958, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows—based on internal Executive Branch documents that have not previously been discovered or discussed in the literature—how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of historical gloss and conventions for the judicial separation of powers more generally.
Wednesday, January 11, 2017
David Jaros (University of Baltimore) and Adam Zimmerman (Loyola LA) have posted Judging Aggregate Settlement to SSRN.
While courts historically have taken a hands-off approach to settlement, judges across the legal spectrum have begun to intervene actively in “aggregate settlements”—repeated settlements between the same parties or institutions that resolve large groups of claims in a lockstep manner. In large-scale litigation, for example, courts have invented, without express authority, new “quasi-class action” doctrines to review the adequacy of massive settlements brokered by similar groups of attorneys. In recent and prominent agency settlements, including ones involving the SEC and EPA, courts have scrutinized the underlying merits to ensure settlements adequately reflect the interests of victims and the public at large. Even in criminal law, which has lagged behind other legal systems in acknowledging the primacy of negotiated outcomes, judges have taken additional steps to review iterant settlement decisions routinely made by criminal defense attorneys and prosecutors.
Increasingly, courts intervene in settlements out of a fear commonly associated with class action negotiations—that the “aggregate” nature of the settlement process undermines the courts’ ability to promote legitimacy, loyalty, accuracy and the development of substantive law. Unfortunately, when courts step in to review the substance of settlements on their own, they may frustrate the parties’ interests, upset the separation of powers, or stretch the limits of their ability. The phenomenon of aggregate settlement thus challenges the judiciary’s duty to preserve the integrity of the civil, administrative, and criminal justice systems.
This Article maps the new and critical role that courts must play in policing aggregate settlements. We argue that judicial review should exist to alert and press other institutions—private associations of attorneys, government lawyers, and the coordinate branches of government—to reform bureaucratic approaches to settling cases. Such review would not mean interfering with the final outcome of any given settlement. Rather, judicial review would instead mean demanding more information about the parties’ competing interests in settlement, more participation by outside stakeholders, and more reasoned explanations for the trade-offs made by counsel on behalf of similarly situated parties. In so doing, courts can provide an important failsafe that helps protect the procedural, substantive, and rule-of-law values threatened by aggregate settlements.
Thursday, January 5, 2017
Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).
Wednesday, December 28, 2016
Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:
This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.
This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.
This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.
Tuesday, December 27, 2016
Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).
Monday, December 19, 2016
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, Discovery Costs and Default Rules. Jay reviews a recent paper by Brian Fitzpatrick and Cameron Norris, One-Way Fee Shifting After Summary Judgment.
Tuesday, December 13, 2016
Shirin Sinnar has posted on SSRN a draft of her article, The Lost Story of Iqbal, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:
The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal. It first retells the story of Iqbal himself — the Pakistani immigrant and cable repair technician whom the opinion presented only categorically as a foreigner, a terrorist suspect, and, at best, a victim of abuse. Drawing on the author’s interview of Iqbal in Lahore, Pakistan, in 2016 and other available evidence, the Article reconstructs the facts of Iqbal’s immigrant life, his arrest and detention in the wake of the September 11 attacks, and the enduring consequences of being labeled a suspected terrorist. Second, the Article recounts the role of race and religion in the post-9/11 immigrant detentions, challenging the Court’s account of the detentions as supported by an “obvious” legitimate explanation. Juxtaposing the lost story of Iqbal and the detentions against the Court’s decision ultimately sheds light on the ability of procedural decisions to propagate particular normative visions and understandings of substantive law without the full recognition of legal audiences. Nearly fifteen years after the September 11 attacks and the ensuing mass detentions, Iqbal demands attention to its substance — to the profound questions of race, law, and security that have become even more urgent in the face of new calls for the exclusion of individuals on racial and religious grounds.
Thursday, December 8, 2016
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).
Monday, November 28, 2016
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.