Civil Procedure & Federal Courts Blog

Eisenberg, Fisher, and Rosen-Zvi on Loser-Pays Norm in Israeli Courts

Theodore Eisenberg, Talia Fisher, and Issachar Rosen-Zvi have posted on SSRN their paper, When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants.

Abstract:

Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and the absence of empirical information about how either functions, an empirical study of judicial fee award practices should be of general interest. We report evidence that Israeli judges apply multiple de facto fee systems: a nearly one way fee-shifting system that dominates in tort cases, a loser pays system that operates when publicly owned corporations litigate, and a loser pays system with discretion to deny fees in other cases. Although a loser pays norm dominates in Israel, with fees awarded in 80% of cases, Israeli judges often exercised their discretion to protect losing litigants, especially individuals, by denying fees. For individual plaintiffs and defendants, the denial rate exceeded 30% for defendants who prevailed against individuals and was about one-quarter for plaintiffs who prevailed against individuals. Judges protected individual plaintiffs against fee awards more than corporations. In cases lost by individual plaintiffs, fees were denied to successful defendants 29.9% of the time compared to denials in 18.0% of cases lost by corporate plaintiffs and 16.7% of cases lost by governmental plaintiffs. In cases lost by individual defendants, fees were denied to successful plaintiffs 22.7% of the time compared to 9.8% denials in cases lost by corporate defendants and 28.6% denials in cases lost by government defendants. In addition to varying by whether plaintiffs or defendants prevailed and by party status, the fee denial pattern varied by case category and judicial district. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.

PM

Shill on Jurisdictional Competition and Foreign Judgment Enforcement

Prof. Gregory Shill (Hofstra) has posted on SSRN a draft of his article, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, which will appear in the Harvard International Law Journal. Here’s the abstract:

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be recognized and then enforced. Standards on recognition differ widely from state to state, but under current law once plaintiffs have secured a recognition judgment all American courts must enforce it irrespective of their own recognition law. Thus, plaintiffs can enforce in states that would have rejected the foreign judgment in the first place.

This brand of forum shopping, which I call “judgment arbitrage,” creates a fundamental structural problem that has thus far escaped scholarly attention: it undermines the power of individual American states to determine whether foreign-country judgments are enforced in their territory and against their citizens. It also suggests a powerful, if implied, conflict of recognition laws among sister U.S. states that precedes and often determines the outcome of what scholars currently consider the primary conflict, between American and foreign law. Finally, this system impedes the development of state law and weakens practical constraints on the application of foreign nations’ laws in the United States.

This Article constructs a novel framework for conceptualizing these problems, and addresses them by proposing a federal statute that would allow states to capture the benefits — and require them to internalize the costs — of their own recognition rules. Rather than scrap the current state-law system in favor of a single federal rule, as the American Law Institute and some leading scholars call for, or institute a national regime of centrally-designed uniform state laws, as the Uniform Law Commission and other commentators have urged, the statute proposed in this Article would provide incentives for competition among states for recognition law. The Article argues that sharpening jurisdictional competition would encourage experimentation, the development of superior law, and, eventually, greater uniformity in an area where scholars agree uniformity is desirable. The proposal may also suggest ways to manage other sister-state conflicts of law in an age when horizontal conflicts are proliferating.

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Donelson & Prentice on Pleading Rule 10b-5 Claims Under the Private Securities Litigation Reform Act

Professors Dain Donelson and Robert Prentice (University of Texas, McCombs School of Business) have published Scienter Pleading and Rule 10b-5: Empirical Analysis and Behavioral Implications, 63 Case Western L. Rev. 441 (2012). Here’s the abstract:

Pleading requirements are the keys to the courthouse. Nowhere is this more true than with rule 10b-5 class action securities fraud claims. Provisions of the Private Securities Litigation Reform Act of 1995 impose special pleading burdens upon plaintiffs regarding the scienter element and bar them from discovery when defendants file a motion to dismiss. This Article begins with a doctrinal history of the scienter element of a rule 10b-5 claim  that  indicates that many key legal questions remain unsettled and that application of legal rules to specific factual allegations regarding a particular type of defendant—external auditors—is extraordinarily muddled. To determine whether the impression arising from this extensive but nonsystematic examination of the case law is accurate, we also empirically examine rule 10b-5 claims against auditors and  confirm  that few facts are consistently viewed by the courts as indicating the presence (or absence) of scienter. This lack of clarity in the law and its application makes it difficult for either plaintiffs or defendants to evaluate the settlement value of claims. Furthermore, the law’s excessive vagueness affords judges virtually untrammeled discretion. The literature of behavioral psychology and related fields indicates that excessive discretion exacerbates problems that arise from unconscious judicial bias.

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Walsh on Crowe: Building the Federal Judiciary

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh (Richmond) entitled Building the Federal Judiciary. It reviews a recent book by Justin Crowe (Williams College, Political Science), Building the Judiciary: Law, Courts, and the Politics of Institutional Development, Princeton University Press. Kevin’s review begins:

Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

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Borgmann on Appellate Review of Social Facts

Professor Caitlin Borgmann (City University of New York) has posted on SSRN a draft of her article, Appellate Review of Social Facts in Constitutional Rights Cases, which will appear in the California Law Review. Here’s the abstract:

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.

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Meier on Summary Judgment (Again!)

Professor Luke Meier has recently posted to SSRN his paper “Probability, Confidence, and Matsushita: The Misunderstood Summary Judgment Revolution.”

The paper can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2205901

The paper argues that Matsushita has been erroneously interpreted in requiring a shift of power from jury to judge.

--PM

Lahav on Klerman on Personal Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Alexandra Lahav (Connecticut) entitled Economic Analysis of Personal Jurisdiction. It reviews an article by Daniel Klerman (Southern California), Personal Jurisdiction and Product Liability, 85 S. Cal. L. Rev. ___ (forthcoming 2013).

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Devins & Prakash: "Reverse Advisory Opinions"

Professors Neal Devins (William & Mary) and Saikrishna Prakash (Virginia) have posted on SSRN a draft of their Essay, Reverse Advisory Opinions, which will appear in the University of Chicago Law Review. Here’s the abstract:

Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to request legal opinions. The Supreme Court’s practice of calling for the views of the solicitor general is as unjustified as it has been long-lived. The lack of justification is crucial, for current practice suggests no limits. Courts might request the advice of law professors or the National Rifle Association; they might even poll former solicitors general of the United States about what the law is. We believe this power to request legal advice is alien to Article III’s adversarial system and is instead a feature of civil law systems and congressional committees, where the inquisitors have much more latitude. The only time the federal courts may request legal advice from nonparties is when a party refuses to address a legal question deemed relevant by the court and the court asks a nonparty to provide an adversarial argument.

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Sperino: "The Tort Label"

Prof. Sandra Sperino (Cincinnati) has posted on SSRN a draft of her article, The Tort Label. Here is the abstract:

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning.

The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.

To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.

The federal courts view tort law as possessing narrow conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.

The primary problem of the tort label is its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.

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Sterk on J. McIntyre v. Nicastro, Personal Jurisdiction & Choice of Law

Prof. Stewart Sterk (Cardozo) has posted on SSRN a draft of his article, Personal Jurisdiction and Choice of Law, which will appear in the Iowa Law Review. Here’s the abstract:

A New Jersey resident, injured while working in his home state, seeks relief from the United Kingdom manufacturer of a shearing machine marketed at trade shows held at various American locations. What reason is there to prevent New Jersey from providing a forum for its injured resident? In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the United States Supreme Court invoked both “individual liberty” and “sovereign authority” to justify its conclusion that New Jersey lacked personal jurisdiction over the British defendant. But the plurality’s failure to identify the liberty and sovereignty interests at stake have left personal-jurisdiction jurisprudence even more conceptually muddled and practically confused than it was before the Court’s most recent foray into the area.

When Pennoyer v. Neff controlled issues of personal jurisdiction, sovereignty’s role was clear: a state could not exercise personal jurisdiction over a defendant unless the state had physical power over that defendant. Since the Court abandoned Pennoyer and replaced it with International Shoe’s emphasis on “traditional notions of fair play and substantial justice,” the Court has struggled to explain why state lines should be relevant at all in personal-jurisdiction cases. In World-Wide Volkswagen Corp. v. Woodson, the Court offered its best explanation to date, recognizing that “the sovereign power to try causes in their courts” was an essential attribute of state sovereignty, but emphasizing that “[t]he sovereignty of each State, in turn, implied a limitation on the sovereignty of all of its sister States.” As abstract as it is, that explanation provides a touchstone for invocations of sovereignty in personal-jurisdiction cases: The inquiry must focus on the impact a forum state’s exercise of jurisdiction will have on the sovereign interests of other states or countries, not on the connection between the defendant and the forum state. If the United Kingdom were prepared to require its corporations to submit to worldwide jurisdiction as the price for obtaining corporate status, there would be no sovereignty-based reason for the Supreme Court to limit New Jersey’s power to assert jurisdiction over an entity incorporated in the United Kingdom.

Recognizing that personal jurisdiction’s concern with sovereignty should focus on whether the forum state’s assertion of jurisdiction impermissibly interferes with the interests of some other state also sheds light on the liberty interest emphasized in the J. McIntyre opinion. If limits on New Jersey’s personal jurisdiction protect the United Kingdom’s interest in regulating persons, entities, and activities within the United Kingdom’s sphere of sovereign authority, the same limits also safeguard the liberty interests of persons and entities who act in accordance with the United Kingdom’s regulatory scheme. That is, jurisdictional rules protect an entity against defending itself in a forum likely to ignore the legal norms and rules the entity might reasonably expect to govern its legal affairs.

These concerns about the sovereign interests of other jurisdictions and the expectations of parties who rely on particular rules of law dominate the discussion in a closely related doctrinal area: choice of law. Not surprisingly, choice of law is the “elephant in the room” in most personal-jurisdiction cases. The Supreme Court’s explicit acknowledgment that choice of law plays a role in jurisdictional determinations has been grudging at best. But the Court’s holdings (and the doctrinal rules it has developed) have — with narrow exceptions — been consistent with the premise that choice of law is a critical factor in jurisdictional determinations. The cases in which the Court has held that the forum lacked personal jurisdiction have almost uniformly been cases in which application of forum law posed an unjustified threat to the regulatory scheme of another jurisdiction and a concomitant danger to defendants who assumed that their actions would be governed by that regulatory scheme. Goodyear Dunlop Tires Operations, S.A. v. Brown, decided concurrently with J. McIntyre, fits that pattern; J. McIntyre does not.

Part I explores the reasons for imposing limits on personal jurisdiction and argues that both the sovereignty and liberty bases for those limits are rooted in choice-of-law concerns: balancing the forum state’s interest against the power of the defendant’s home state to regulate local activity, and the right of local actors to rely on their home state’s regulatory scheme. When application of forum law would not interfere with the power of the home state to regulate purely local activity and would not interfere with the reasonable reliance interests of the defendant, there is no persuasive reason to limit the forum’s exercise of personal jurisdiction.

Part II explains how many of the principal features of existing personal-jurisdiction doctrine — including the decline of in rem jurisdiction, the narrow limits on general jurisdiction, and the “purposeful availment” standard for specific jurisdiction — are consistent with a primary focus on choice of law.

Part III then examines the implications of J. McIntyre for personal-jurisdiction jurisprudence. The plurality opinion — if it were ever to become law — would repudiate much of the jurisdictional learning of the past forty years and would jeopardize the ability of states to protect their citizens against defective products purchased through e-commerce. The concurring opinion, however, holds out hope that J. McIntyre will prove to be a momentary aberration, and that the Court will ultimately expand the scope of personal jurisdiction to reflect the diminished incidence and significance of truly local markets.

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Ben-Shahar on the Economics of Arbitration and Access to Justice

Prof. Omri Ben-Shahar (Chicago) has posted on SSRN a draft of his article, Arbitration and Access to Justice: Economic Analysis.  Here’s the abstract:

Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive effect. Paradoxically, rules that limit the use of pre-dispute arbitrations clauses hurt, rather than protect, weaker consumers, as they mandate a regressive reallocation. I also consider the role of class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.

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(Hat Tip: Larry Solum)

Vladeck on Pendent Appellate Jurisdiction and the Collateral Order Doctrine

Prof. Steve Vladeck (American University) has posted on SSRN a draft of his essay, Pendent Appellate Bootstrapping, which will be published in the Green Bag. He also has a Prawfsblawg post on the topic. Here’s the abstract:

Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."

Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, this short essay demonstrates that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.

The practical effect of these beclouded expansions is only now becoming visible. Thus, in two recent high-profile Bivens cases, both the D.C. and Seventh Circuits (the latter sitting en banc) reversed a trial court’s recognition of a Bivens claim on interlocutory appeal of the denial of qualified immunity, even though neither court of appeals disturbed the district court’s underlying determination of non-immunity. And whatever might be said about the continuing viability of Bivens claims, lower courts have begun to piggyback other legal questions going to the merits onto interlocutory immunity appeals, as well.

As this essay concludes, in addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. Had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.

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Thomas on Solomon on the Civil Jury

Now available on the Courts Law section of JOTWELL is an essay by Suja Thomas (Illinois) entitled Considering the Civil Jury. It reviews a recent article by Jason Solomon (William & Mary), The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012). Suja's review begins:

The civil jury is in this year.  In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy.  Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.

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Freer on Class Actions at the Supreme Court

Professor Richard Freer (Emory) has posted on SSRN a draft of his article, The Supreme Court and the Class Action: Where We Are and Where We Might Be Going. Here's the abstract:

In 2010 and 2011, the Supreme Court decided five class action cases. In 2012, it has agreed to hear four more. This piece summarizes what the Court has done and where it appears to be going concerning aggregate litigation. The goal of this piece is more practical than theoretical: to place all nine cases in context and draw preliminary conclusions about the impact these cases have had and will have -- not only on class action practice, but in other areas, including the Erie Doctrine, waivers of class arbitration, anti-suit injunctions, the binding effect of judgments on class members, enforcement of Rule 10b-5, and the apparent efforts of defendants to front-load litigation by demanding greater consideration of merits-based facts (and qualification of experts) at the class certification stage.

The cases dealing with waivers of class arbitration implicate the role of the civil suit in law enforcement. If small (usually consumer) claims cannot be pursued on an aggregate basis, they may never be vindicated; individuals and lawyers will not find it economically feasible to do so. Yet the Court appears unwilling to recognize a public-policy exception to the primacy of contract. Thus, if the underlying contract waives aggregate litigation or arbitration, apparently this will not be trumped by the concern that the relevant law (often consumer protection laws) will not be enforced through civil litigation.

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Dodson on Dismissal Rates in Federal Civil Cases

Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.

Abstract:

In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.

This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.

The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.

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Polinsky & Shavell on Costly Litigation

Professors Mitchell Polinsky (Stanford) and Steven Shavell (Harvard) have posted on SSRN a draft of their article, Costly Litigation and Optimal Damages. Here’s the abstract:

A basic principle of law is that damages paid by a liable party should equal the harm caused by that party. However, this principle is not correct when account is taken of litigation costs, because they too are part of the social costs associated with an injury. In this article we examine the influence of litigation costs on the optimal level of damages, assuming that litigation costs rise with the level of damages.

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Issacharoff & Miller on Rule 12(b)(6)

Professors Samuel Issacharoff & Geoffrey Miller (NYU) have posted on SSRN a draft of their article, An Information-Forcing Approach to the Motion to Dismiss. Here’s the abstract:

This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.

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Pfander on Why Judges Leave (Reviewing Burbank, Plager & Ablavsky)

Now available on the Courts Law section of JOTWELL is an essay by Prof. Jim Pfander (Northwestern) entitled Why Judges Leave the Bench. It reviews Stephen Burbank, S. Jay Plager, and Greg Ablavsky's recent article, Leaving the Bench. Jim's essay begins:

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.

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Meier on the Summary Judgment Standard

Professor Luke Meier of Baylor University has posted on SSRN his new article, "Probability, Confidence, and the 'Reasonable Jury' Standard."

Abstract:

The modern summary judgment standard requires that a judge consider how a "reasonable jury" would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the "reasonable jury" standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's "blue bus" hypothetical. In addition, this article demonstrates how the "reasonable jury" standard makes it difficult to identify the confidence concept as a component of federal procedure.

PM

Robertson on the Right to Appeal

Cassandra Burke Robertson has posted The Right to Appeal on SSRN.

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position. 

In this article, I argue that a right to appeal protects both private litigants and the justice system as a whole. First, doctrinal consistency necessitates the explicit recognition of a constitutional right to appeal — a right that the Supreme Court’s criminal and punitive-damages doctrines have already implicitly recognized. Second, the modern procedural system has developed in a way that relies on appellate remedies as part of fundamental due process. Traditional procedural safeguards — such as the jury trial and the executive clemency process — may once have sufficiently protected due process rights. In the modern era, however, these procedures have diminished at the same time that reliance on appeals has grown; as a result, if appellate remedies are removed from the procedural framework, the system as a whole cannot provide adequate due-process protection. Finally, recognizing constitutional protection for appellate rights would also express a normative view, promoting the values of institutional legitimacy, respect for individual dignity, predictability, and accuracy. Appellate procedure has earned a place in our contemporary understanding of due process; it is time to recognize its role as a fundamental element of fair judicial practice.

 RJE