Tuesday, May 21, 2019

SCOTUS Discusses Mootness in Yesterday’s Mission Product Holdings Decision

The main issue in yesterday’s Supreme Court decision in Mission Product Holdings, Inc. v. Tempnology, LLC involved the provision of the bankruptcy code regarding a debtor’s rejection of an executory contract. But there was an interesting exchange regarding mootness.

From Justice Kagan’s majority opinion:

Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172.

Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot.

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May 21, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, May 20, 2019

SCOTUS Cert Grant in Ritzen Group

Today the Supreme Court granted certiorari in Ritzen Group, Inc. v. Jackson Masonry, LLC, which involves the federal district courts’ appellate jurisdiction over certain bankruptcy court orders The question presented is: “Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

May 20, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Decision in Merck Sharp & Dohme Corp. v. Albrecht: Judges, Juries & Preemption

Today the Supreme Court handed down its decision in Merck Sharp & Dohme Corp. v. Albrecht. Justice Breyer authored the majority opinion, which was joined by Justices Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch. It begins:

When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers.

For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U. S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning.

Justice Thomas joins the majority opinion but also writes a separate concurring opinion arguing that the preemption defense should fail as a matter of law. (The majority remands the case for the lower courts to address whether the plaintiff’s state-law tort claim is preempted in this case).

Justice Alito writes a concurring opinion, joined by Chief Justice Roberts and Justice Kavanaugh. Justice Alito agrees that this is a question of law to be decided by courts rather than juries, but he is “concerned that [the majority’s] discussion of the law and the facts may be misleading on remand.”

 

 

 

May 20, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, May 17, 2019

Huang on Personal Jurisdiction and Internet Servers

Jie (Jeanne) Huang has published Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?, 36 Wis. Int’l L.J. 87 (2018). Here’s the abstract:

Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the U.S., Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.

 

 

May 17, 2019 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Thursday, May 16, 2019

Levy on the use of visiting judges on the federal courts of appeals

Marin Levy has published Visiting Judges, 107 Cal. L. Rev. 67 (2019). Here’s the abstract:

Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting by designation”—how it came to be, how it functions today, and what it reveals about the judiciary more broadly.

This Article offers an overdue account of visiting judges. It begins by providing an origin story, showing how the current practice stems from two radically different traditions. The first saw judges as fixed geographically, and allowed for visitors only as a stopgap measure when individual judges fell ill or courts fell into arrears with their cases. The second assumed greater fluidity within the courts, requiring Supreme Court Justices to ride circuit—to visit different regions and act as trial and appellate judges—for the first half of the Court’s history. These two traditions together provide the critical context for modern-day visiting.

The Article then presents a thick descriptive analysis of contemporary practice. Relying on both qualitative and quantitative data, it brings to light the numerous differences in how the courts of appeals use outside judges today. While some courts regularly rely on visitors for workload relief, others bring in visiting judges to instruct them on the inner workings of the circuit, and another eschews having visitors altogether in part because the practice was once thought to be used for political ends.

These findings raise vital questions about inter- and intra-circuit consistency, the dissemination of culture and institutional knowledge within the courts, and the substitutability of federal judges. The Article concludes by taking up these questions, reflecting on the implications of visiting judges for the federal courts as a whole.

 

 

 

May 16, 2019 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, May 15, 2019

Pardo on the Paradoxes of Legal Proof

Mike Pardo has published The Paradoxes of Legal Proof: A Critical Guide, 99 B.U. L. Rev. 233 (2019). Here’s the abstract:

For several decades, a variety of paradoxes have fascinated and frustrated legal scholars and courts discussing evidence, procedure, and legal proof. These paradoxes concern issues such as statistical evidence, burdens and standards of proof, and rules for jury verdicts. As with other types of paradoxes, the paradoxes of legal proof raise fundamental issues and assumptions. In the legal context, the issues and assumptions are not merely of theoretical interest; they also have significant practical implications at trial and, indeed, throughout the processes of civil and criminal litigation. At the same time, there remains very little agreement about any of the paradoxes, and the issues they raise remain highly contested.

This Article explores the different types of legal-proof paradoxes and the connections between them. In analyzing the structure of the paradoxes, the Article makes three contributions. First, it explains the practical significance of the paradoxes and why they raise fundamental issues for evidence law and civil and criminal procedure. Second, it reveals the necessary connections between the different types of paradoxes and the ways in which one type of paradox has implications for the others. These unexplored connections help to explain why individual paradoxes have resisted consensus and continue to prompt discussion and disagreement. The paradoxes are too often treated as isolated problems to be “solved” without appreciating how the underlying issues relate to those raised by the other paradoxes. Third, the analysis clarifies the primary source of confusion for each type of paradox: namely, the popular but mistaken assumption that standards of proof are probabilistic thresholds. Abandoning this spurious assumption provides a number of salutary theoretical and practical consequences, including greater clarity of the legal issues underlying the paradoxes, a better explanation of legal doctrine, and an improved understanding of the manifold litigation issues dependent on the legal-proof process.

 

 

 

May 15, 2019 in Recent Scholarship | Permalink | Comments (0)

Tuesday, May 14, 2019

SCOTUS Decision in Franchise Tax Board v. Hyatt: Nevada v. Hall is Overruled

Yesterday the Supreme Court issued a 5-4 decision in Franchise Tax Board of California v. Hyatt, covered earlier here. Justice Thomas’s majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh, begins:

This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U. S. 410 (1979).

Justice Breyer authored the dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan.

 

May 14, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, May 9, 2019

Podcast: the beginning of Wright & Miller

Fifty years ago, Charles Alan Wright and Arthur Miller first published the Federal Practice & Procedure treatise. Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary.

The first episode, which is now posted, features Arthur Miller discussing the initial development of the treatise.

 

 

May 9, 2019 in Books, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, May 7, 2019

Mulligan on Spencer on Personal Jurisdiction in Federal Court

Today on the Courts Law section of JOTWELL is Lou Mulligan’s essay, Is Personal Jurisdiction Constitutionally Self-Enacting? Lou reviews Ben Spencer’s recent article, The Territorial Reach of Federal Courts, which is forthcoming in the Florida Law Review.

 

 

May 7, 2019 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, May 3, 2019

Michalski on Suing Robots

Roger Michalski has published How to Sue a Robot, 2018 Utah L. Rev. 1021. Here’s the abstract:

We are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural purposes. They were similarly tethered to human owners. Over time, courts and legislators abandoned the model of treating corporations solely as property and increasingly treated them as an independent artificial person for litigation purposes.

Robots might also make a transition along those lines. If they do, which legal model should we adopt for robots? Are they more like an employee, a franchisee, a slave, a subsidiary, a child, an animal, a subcontractor, an agent, or something else altogether? Given the inherent path-dependence of procedural law, picking the right model will have important consequences and will be difficult to reverse.

This Article lays the groundwork for this fundamental decision. It explains the urgency and importance of this decision and presents three analytical frameworks (ontological, deontological, and functional) for how we can approach the question of robots in civil litigation. Often unnoticed and unarticulated, these analytical frameworks structure important doctrinal and normative positions. The Article then applies these analytical frameworks to evaluate numerous concrete contestant models for treating robots as litigation entities. The resulting taxonomy exposes the weaknesses of analogizing robots to established models—none fits, and all would have negative practical consequences. Instead of utilizing an existing model, this Article argues that we must treat robots as a new litigation category that borrows insights selectively and partially from a range of the existing models. For example, we must craft a new in robotam personal jurisdiction doctrine to supplement the old in personam jurisdiction doctrine. Doing otherwise would expose procedure to doctrinal incoherence, legislation to policy mayhem, and parties injured by robots to unnecessary costs and insurmountable procedural hurdles.

 

 

 

May 3, 2019 in Recent Scholarship | Permalink | Comments (0)

Tuesday, April 30, 2019

Jurisdictional or Nonjurisdictional: SCOTUS Cert Petition in Graviss

Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.

The petition for certiorari presents the following questions:

1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.

2. Whether the Government forfeited its timeliness defense.

As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.

As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.

Stay tuned, everyone!

 

 

 

April 30, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, April 26, 2019

Brand on China's Recognition of Foreign Judgments

Ronald Brand has published Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative, 37 J.L. & Com. 29 (2018). Here’s the abstract:

In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

 

 

 

 

April 26, 2019 in International/Comparative Law, Recent Decisions, Recent Scholarship | Permalink | Comments (0)

Wednesday, April 24, 2019

SCOTUS decision in Lamps Plus v. Varela: interpreting ambiguous arbitration agreements to allow classwide arbitration

Today the Supreme Court issued a 5-4 decision in Lamps Plus, Inc. v. Varela. The majority opinion, authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, addresses whether the Federal Arbitration Act (FAA) bars an order requiring class arbitration when an arbitration agreement is “ambiguous” about the availability of class arbitration. According to the majority, it does.

The Court first rules that § 16(a)(3) of the FAA permits appellate review when a party seeks an order compelling individual arbitration but the district court issues an order compelling arbitration on a classwide basis. It then decides that “[c]ourts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.” [Op. 12] The Court does not, however, address whether the availability of class arbitration is necessarily a question for the judge—rather than the arbitrator—to decide. Footnote 4 emphasizes that “the parties agreed that a court, not an arbitrator, should resolve the question about class arbitration.”

Justice Thomas joins the majority opinion but authors a brief concurring opinion. There were four dissenting opinions: one by Justice Ginsburg, which was joined by Justices Breyer and Sotomayor; one by Justice Breyer; one by Justice Sotomayor; and one by Justice Kagan, which was joined by Justices Ginsburg and Breyer and partially joined by Justice Sotomayor.

Download Lamps Plus v Varela

 

 

 

 

 

 

April 24, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 23, 2019

Coleman on Law Clerks for Workplace Accountability’s Public Comment on Proposed Changes to the Judicial Conduct Code & Rules

Monday, April 22, 2019

Carroll on Rule 23(b)(2) Class Actions

Maureen Carroll has published Class Actions, Indivisibility, and Rule 23(b)(2), 99 B.U. L. Rev. 59 (2019). Here’s the abstract:

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the plaintiffs seek.

Some defendants have encouraged federal courts to adopt an extremely restrictive version of indivisibility, which I term “endpoint indivisibility,” as a standard for applying Rule 23(b)(2). This Article argues that an endpoint indivisibility requirement would be fundamentally inconsistent with the historical models for Rule 23(b)(2). Moreover, such a requirement would have devastating effects on civil rights litigation. An alternative standard, which I term “root-cause indivisibility,” offers a better logical and historical fit.

 

April 22, 2019 in Class Actions, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Friday, April 19, 2019

Douglas & Solimine on Three-Judge District Courts

Josh Douglas & Mike Solimine have published Precedent, Three-Judge District Courts, and the Law of Democracy, 107 Geo. L.J. 413 (2019). Here’s the abstract:

As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court?

This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive.

Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.

 

April 19, 2019 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, April 17, 2019

Steinberg on Civil Problem-Solving Courts

Jessica Steinberg has published A Theory of Civil Problem-Solving Courts, 93 N.Y.U. L. Rev. 1579 (2018). Here’s the abstract:

This Article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” jail-based sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated private law cases: rental housing and consumer debt.

Three structural conditions in the civil courts—systemic lack of counsel, high-volume dockets, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.

The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.

 

 

April 17, 2019 in Recent Scholarship | Permalink | Comments (0)

Tuesday, April 9, 2019

Thomas on Fountain & Woolard on counseling juveniles about plea bargains

Today on the Courts Law section of JOTWELL is Suja Thomas’s essay, Plea Bargaining with Juveniles. Suja reviews a recent article by Erika Fountain & Jennifer Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol’y & L. 192 (2017).

 

 

April 9, 2019 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, April 5, 2019

Robertson on Safeguarding Judicial Impartiality

Cassandra Robertson has published Judicial Impartiality in a Partisan Era, 70 Fla. L. Rev. 739 (2018). Here’s the abstract:

Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. As a result, the public increasingly scrutinizes judges and judicial candidates for signs of political agreement, distrusting those perceived to support the opposing political party.

Judges themselves are not immune to these political forces. In spite of a strong judicial identity that demands impartiality and judicial conduct rules that require judges to avoid even the appearance of bias, judges have the same unconscious biases and preconceptions as anyone else. Moreover, judges must generally have strong political affiliations to reach the bench at all, regardless of whether they are elected or appointed. Drawing the line between mere political affiliation and an inappropriate appearance of partisan bias can therefore be difficult.

This Article analyzes the mechanisms available to safeguard judicial impartiality. Although recusal motions are the most common weapon against partisan bias, this Article argues that recusal motions cannot effectively guard against the appearance of bias arising from a judge’s political views. When recusal rules rely on an undefined “appearance” standard, they are susceptible to an interpretive bias that undermines their purpose. Nonetheless, the Article concludes that the appearance of partisan bias in the judicial branch is not so different from other types of unconscious bias. As a result, ordinary procedural tools—including the right to a jury trial and our system of appellate review—may provide a stronger safeguard against judicial bias than recusal motions.

 

 

 

April 5, 2019 in Recent Scholarship | Permalink | Comments (0)

Thursday, April 4, 2019

Leslie on Conspiracies to Arbitrate

Christopher Leslie has published Conspiracy to Arbitrate, 96 N.C. L. Rev. 381 (2018). Here’s the abstract:

Beginning in the 1980s, the Supreme Court has ushered in a new Age of Arbitration in which firms can use arbitration clauses to include otherwise unenforceable terms in their contracts. This has allowed defendants to shorten statutes of limitations, to limit damages, and to prevent injunctive remedies altogether. Given the pro-business nature of arbitration clauses, mandatory arbitration clauses have become standard in some industries. Some industries may transition to market-wide mandatory arbitration, in part, through conspiracies to arbitrate. A conspiracy to arbitrate exists when the competing firms in a market illegally agree that they will all impose mandatory arbitration on their consumers.

This Article highlights the dangers of conspiracies to impose arbitration, their illegality, and their utility in concealing and protecting price-fixing conspiracies. Despite the fact that conspiracies to arbitrate violate antitrust law, courts have misapplied arbitration law in ways that make such conspiracies profitable and perhaps inevitable in some markets. Relying on the false premise that Congress created a federal policy favoring arbitration, federal courts have employed seemingly neutral doctrines in ways that actively implement conspiracies to arbitrate. For example, courts have compelled antitrust plaintiffs to arbitrate their claims that defendants have conspired to impose arbitration, which means courts are enforcing—instead of condemning—the very agreement among competitors that they are supposed to adjudicate. Courts have also misapplied equitable doctrines and have given retroactive effect to arbitration clauses. These judicial decisions protect both conspiracies to arbitrate and price-fixing cartels.

The Article then presents a case study of recent litigation involving an alleged conspiracy among banks that issue credit cards to impose arbitration clauses on their customers. Following a bench trial, the federal trial judge held—and the Second Circuit affirmed—that the plaintiffs failed to prove an agreement among the defendants to impose arbitration clauses. In reaching this conclusion, the court committed a litany of mistakes and ultimately failed to recognize that it did, in fact, actually find an illegal conspiracy to arbitrate. These errors flowed from the court’s incorrect belief that Congress intended courts to favor arbitration over litigation.

The Article concludes by proposing changes to the way that courts evaluate conspiracy-to-arbitrate claims. Federal courts are essentially complicit in antitrust violations when they compel compliance with arbitration clauses that are the product of alleged illegal conspiracies. The Supreme Court’s rush to encourage and enforce arbitration clauses should not blind lower courts to the possibility that conspiracies to arbitrate are preventing the free market from operating properly to protect consumer interests.

 

 

April 4, 2019 in Recent Scholarship | Permalink | Comments (0)