Friday, January 30, 2015
Brooke Coleman, Seattle University School of Law, has posted on SSRN her article, "Civil-izing Federalism," published in Tulane Law Review.
When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts.
This Article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the Article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This Article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system.
Thursday, January 29, 2015
As the Supreme Court ponders the proposed FRCP discovery amendments (if approved and not vetoed by Congress, they’ll be coming soon to a federal court near you this December), a few recent postings to SSRN are worthy of note…
Steve Burbank has posted Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?, which will be published in the Review of Litigation. Here’s the abstract:
In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that appear quantifiable over those that do not (“the evaluability hypothesis”). I argue that the social benefits of discovery are not mere abstractions or the stuff of formal models. They are the intended fruits of conscious legislative policy. If proportionality is not to become a deregulatory tool in cases in which federal regulatory policy is implicated, judges must resist the temptation to give short shrift to those elements of the analysis that, because they are out of sight, are also out of mind, or are difficult to quantify -- in particular, social benefits.
And here is the abstract for the aforementioned article by Jonah Gelbach & Bruce Kobayashi, The Law and Economics of Proportionality in Discovery:
This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard requires both difficult-to-answer positive questions and unavoidably normative judgments.
Monday, January 26, 2015
Now available on the Courts Law section of JOTWELL is an essay by Nancy Leong entitled The Federalism Argument for Judicial Diversity. Nancy reviews a recent article by Sharon Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, which was published in the Missouri Law Review.
Tuesday, December 16, 2014
Now available on the Journal of Legal Analysis website is David Rosenberg and Kathryn Spier’s article, Incentives to Invest in Litigation and the Superiority of the Class Action. Here’s the abstract:
We formally demonstrate the general case for class action in a rent-seeking contest model, explaining why separate action adjudication is biased in the defendant’s favor and collective adjudication is bias free. Separate action bias arises from the defendant’s investment advantage in capitalizing on centralized control over the aggregate (classwide) stake in the common question defense, while the plaintiff, with only an individual recovery at stake, spends much less. Class action eliminates bias by enabling both parties to make their best case through centralized optimal classwide investments. Our social benefit–cost analysis shows that class action surpasses alternative methods for achieving bias-free adjudication.
And here’s a link to the PDF file.
H/T: Larry Solum (who justifiably says to download it while it’s hot).
Thursday, December 11, 2014
Mulligan on Preis on the Relationship Between Federal Causes of Action, Rights, Remedies, and Jurisdiction
Now available on the Courts Law section of JOTWELL is an essay by Lou Mulligan entitled Federal Causes of Action and Everything that Follows.
Lou reviews a recent article by Jack Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, which is forthcoming in the Florida Law Review.
Monday, December 1, 2014
Friday, November 14, 2014
Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).
Tuesday, November 4, 2014
Michael J. Gerhardt and Michael Ashley Stein have posted on SSRN their article, The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861, forthcoming in Iowa Law Review.
Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.
Monday, November 3, 2014
Over on the Courts Law section of JOTWELL is an essay by Steve Vladeck entitled Appealing to Injustice. Steve reviews Bill Richman and Bill Reynolds' recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford Univ. Press 2013).
Wednesday, October 15, 2014
Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.
Monday, October 13, 2014
It reviews a recent article by Martin Redish and Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism, which will appear in the William & Mary Law Review.
Wednesday, September 17, 2014
Rich Freer (Emory) has posted on SSRN a draft of his article, Four Specific Problems with the New General Jurisdiction, which will be published in the Nevada Law Journal. Here’s the abstract:
General in personam jurisdiction allows a court to enter judgment against a defendant regarding a claim that did not arise in the forum. Traditionally, based upon International Shoe (1945), courts have exercised general jurisdiction over corporations based upon their "continuous and systematic" activities in the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), the Supreme Court has restricted general jurisdiction by making it available only where the defendant is "at home" (a notion apparently never adopted by any state court as a proxy for general jurisdiction).
Goodyear and Daimler were easy cases. The lower courts' exercise of general jurisdiction in each was risible. Instead of simply reversing the efforts, the Court decided several issues it did not need to decide and upset accepted understanding of activities-based general jurisdiction. Because the Court has never explained why we have general jurisdiction, it failed to explain why the new restriction is needed or appropriate.
This article focuses on four specific problems created by the new jurisprudence: (1) the Court unnecessarily prohibits general jurisdiction based upon sales into a forum, which will hamper growth of jurisdictional doctrine in Internet cases; (2) by ignoring corporate activities, the Court ignores the sorts of corporate contact that would be analogous to human domicile, which, the Court says, is the paradigm of "at home"; (3) by rendering activities-based general jurisdiction practically impossible and (4) by inexplicably jettisoning the "fairness factors" of International Shoe in general jurisdiction cases, the Court exacerbates its parsimonious view of specific jurisdiction by denying judicial access to American plaintiffs injured by foreign corporations.
Though some restriction of general jurisdiction may have been appropriate, it should have been measured and well-tailored to the underlying purpose of general jurisdiction. The Court's recent effort is not.
Wednesday, September 10, 2014
For a less sanguine view of the FRCP Forms' usefulness than that contained in my last two posts (here and here), see the recent article posted on SSRN by Jason A. Cantone and Joe S. Cecil (both of the Federal Judicial Center) and Dhairya Jani, entitled "Whither Notice Pleading?: Pleading Practice in the Days Before Twombly."
Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Twombly v. Bell Atlantic or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal. Scholars have noted occasional departures from the notice pleading standards in more complex civil cases, but notice pleading has been thought to be the prevalent practice in simple negligence cases. This article examines two sets of complaints filed in federal district courts before Twombly in 2006 in cases alleging injuries from simple automobile accidents. We find that the practice of notice pleading, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim. If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading in other more complex federal civil cases. In this regard, our findings also raise doubts about the utility of Form 11. While others have attributed the demise of notice pleading to concerns about abuse of discovery, the absence of notice pleading in these simple cases with little contentious discovery requires additional explanation. In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a heightened standard than notice pleading, the trend is clear: lower courts had already started to abandon the Conley notice pleading standard and pleading additional facts beyond the requirements of a notice pleading standard predated Twombly or Iqbal.
The authors state in their opening footnote: "The views expressed herein are those of the authors and not necessarily those of the Federal Judicial Center. This manuscript was initially prepared for presentation at the Conference on Empirical Legal Studies in October 2013."
Tuesday, September 9, 2014
Speaking of the possibly soon-to-be-extinct official forms following the Federal Rules of Civil Procedure, Professor A. Benjamin Spencer has posted on SSRN his article, "The Forms Have (Had?) a Function," forthcoming in Nevada Law Journal.
What then could be the continuing point of having the forms at all? Indeed, that is the question the Advisory Committee on Civil Rules (“Advisory Committee”) has asked and answered quite recently: It has concluded that the Official Forms no longer serve any useful purpose and may therefore be discarded into the waste bin of history. Seemingly without much further thought, the Standing Committee promptly concurred, putting the forms on an all-but-certain course toward oblivion.
Might it be true that the forms have outlived their usefulness? And if no longer of any use, were the forms ever of any real utility? On the occasion of the pending abrogation of the Official Forms, this article takes the opportunity to review the history and use of the forms, finding that they had more value than the current rulemakers cared to acknowledge: The principal function of the forms was to reify the liberal vision of the Federal Rules and to guard against deviations therefrom. Unfortunately, as that liberal vision has given way to a more restrictive view in what Stephen Subrin refers to as the “fourth era” of civil procedure, the unyielding simplicity and permissiveness of the forms have become too much for the otherwise changing system to bear. Below, then, is a eulogy of the forms.
Sunday, August 17, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Future Claimants and the Quest for Global Peace, which will appear in the Emory Law Journal. Here’s the abstract:
In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution.
In lieu of class actions and non-class aggregate settlements, this Article proposes a hybrid public-private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest. Under this proposal, defendants would secure judicial approval of a fair and reasonable class action settlement of the current claims and then, through an extra-judicial process, make fair offers on comparable terms to future claimants as their claims mature, adjusted to take into account the time value of money and intervening changes in legal doctrine and medical advances. Since the class action settlement would not purport to bind the future claimants, their constitutional rights would be protected. And even though the future claimants would not be bound by the class action judgment nor obligated to accept the fair offers on comparable terms, they would have an incentive to accept them, rather than sue in tort, because they would be assured fair compensation without incurring the costs of litigation.
Saturday, August 16, 2014
Stephen Burbank and Sean Farhang have posted on SSRN their article Federal Court Rulemaking and Litigation Reform: An Institutional Approach (forthcoming in Nevada Law Journal).
Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
Wednesday, August 6, 2014
Now, I know you were just sayng to yourself, "Why hasn't another article about the empirical study of Twombly and Iqbal come out recently? I'm having withdrawal symptoms." Rejoice -- here it is.
Professor Jonah Gelbach of the University of Pennsylvania Law School has published in the most recent issue of the Stanford Journal of Complex Litigation (and earlier posted on SSRN) his article Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?
Empirical questions in civil procedure are too important to be answered as if motivated people weren’t involved in the legal system. Parties don’t conduct their primary behavior that way, lawyers don’t plead or brief that way, and judges don’t decide cases that way. We ought not to study litigation that way, either. This paper is a step toward a better alternative.
Empirical researchers must take seriously the fact that litigation involves human beings, who are motivated and have agency. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action.
I then show how these concerns permeate a prominent empirical issue in contemporary civil procedure debates: the changes in pleading policy wrought by Bell Atlantic, Corp. v. Twombly and Ashcroft v. Iqbal. Revisiting my own earlier work, I embed the question of how changes in the pleading standard will affect case outcomes in a broad behavioral framework that takes parties’ agency seriously. In the process, I address recent critiques, both of the very idea of using behavioral frameworks to understand civil litigation policy changes, and of my use of real-world litigation data collected by the Federal Judicial Center. These criticisms implicate all aspects of the process of empirical research: the notion of using a behavioral framework at all, the type of data needed, and the question of how best to estimate effects that the behavioral framework indicates are important, given the data. As I show, these criticisms are straightforwardly (if verbosely) refuted on the merits.
The alternative to taking seriously the behavioral context created by the civil justice system — what has occurred so far in too much of the debate over Twombly and Iqbal — is, as one critic of early 20th-century empirical research by legal scholars once put it, “a mindless amassing of statistics without reference to any guiding theory whatsoever.” To do better, we will need to take behavior seriously in studying civil litigation.
Monday, June 23, 2014
Paula Schaefer of the University of Tennessee College of Law has posted on SSRN her article, A Primer on Professionalism for Doctrinal Professors, forthcoming in Tennessee Law Review.
Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.
This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.
Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.
Friday, June 6, 2014
Charles "Rocky" Rhodes (South Texas College of Law) and Cassandra Burke Robertson (Case Western) have posted Toward a New Equilibrium in Personal Jurisdiction to SSRN.
In early 2014, the Supreme Court decided two new personal jurisdiction cases that will have a deep and wide-ranging impact on civil litigation in the coming decades: Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014). Bauman eliminates the traditional “continuous and systematic” contacts test for general jurisdiction, and Walden significantly retracts the ability of courts to exercise personal jurisdiction over out-of-state defendants whose actions have in-state effects. Taken together, both cases will make it significantly more difficult for plaintiffs to exercise control over where lawsuits are filed. In some cases — such as large-scale class actions — the new decisions may make it impossible to identify a single forum where multiple defendants can be sued together, and will therefore shift the balance of litigation power from plaintiffs to defendants.
This Article examines the effect that these decisions will have on future litigation and suggests solutions to the problems that will arise in the wake of these decisions. It analyzes how the Court’s new jurisprudence has shifted the balance of power in the jurisdictional framework, and it explores areas of future litigation. We predict four areas in which disputes are likely to become more salient: first, the “connectedness” requirement of specific jurisdiction; second, the availability of personal jurisdiction over pendent claims that form part of a single case or controversy; third, the future availability of personal jurisdiction over a defendant whose out-of-state conduct has caused effects within the forum state; and fourth, the availability of “consent jurisdiction” based on the appointment of a registered agent for service of process. Even before the Court’s 2014 cases, circuit splits had arisen over the propriety of jurisdiction in each of these four areas. Now that the Court has limited other grounds for personal jurisdiction, we predict those pre-existing splits will become more critical to resolve and will take on a central role in future litigation.
Our Article suggests solutions to the problems that will inevitably arise in the wake of these decisions, and it proposes a method of recalibrating specific jurisdiction to account for the demise of general contacts jurisdiction and the limitation on effects-test jurisdiction. It recognizes that International Shoe described two categories of specific jurisdiction — not just one — and it builds on this two-tier framework to reach a new equilibrium. When the defendant’s forum activities fall within Shoe’s “continuous and systematic” category, the balance of individual and state interests should tilt toward authorizing jurisdiction as long as some loose connection exists between the forum and the actions that give rise to the litigation. Thus, in cases that would have been eligible for general jurisdiction in the past, the forum relatedness requirement should be relaxed. In contrast, for adjudicatory jurisdiction in the “single or occasional” acts scenario, the state must have a tighter link to its sovereign regulatory interests. This rebalanced jurisdictional framework would therefore take into account the defendants’ liberty interests as protected by Bauman and Walden without sacrificing the states’ sovereign interest in protecting their citizens.
Tuesday, May 27, 2014
Corina D. Gerety and Brittany K.T. Kauffman, of The Institute for the Advancement of the American Legal System at the University of Denver, have published a Summary of Empirical Research on the Civil Justice Process: 2008-2013.
An explanation of its Scope provides, "This report provides a synthesis of the relevant empirical research on the civil justice process released from 2008 to 2013. In addition to IAALS research, it contains studies conducted by a variety of organizations and individuals, including the Federal Judicial Center, the National Center for State Courts, the RAND Corporation, and others. We, the authors, refer to 39 studies in total, representing a relatively even mix of case file/docket studies and surveys/interviews."