Wednesday, September 18, 2019
Kathleen Noonan, Jonathan Lipson & Bill Simon have published Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation, 94 Ind. L.J. 545 (2019). Here’s the abstract:
Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.
This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.
Monday, September 16, 2019
As covered earlier, Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary of Charles Alan Wright & Arthur Miller’s Federal Practice & Procedure treatise.
The first three episodes have now been posted:
- Episode 1: Building the Wright & Miller Treatise (Arthur Miller & Jean Maess)
- Episode 2: The Evolution & Future of Class Actions (Arthur Miller & Mary Kay Kane)
- Episode 3: The Evolution & Future of Personal Jurisdiction & Pleadings (Arthur Miller, Ben Spencer & Adam Steinman)
Friday, September 13, 2019
Today, the Second Circuit issued its decision in Citizens for Responsibility and Ethics in Washington v. Trump, a lawsuit against President Trump alleging violations of the Emoluments Clauses of the U.S. Constitution. Judge Leval’s majority opinion begins:
Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant Opportunities Center United (“ROC”), a non‐partisan, member‐based organization of restaurants and restaurant workers—appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.) dismissing their complaint against Defendant Donald J. Trump, the President of the United States, for lack of subject matter jurisdiction. The complaint seeks declaratory and injunctive relief for the President’s alleged violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution. The President moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court granted the motion, concluding that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and their suit is barred by the political question doctrine. For the reasons below, we vacate the judgment and remand for further proceedings.
Judge Walker authored a dissenting opinion.
Thursday, September 12, 2019
The Supreme Court’s order stays the district court’s preliminary injunction against the Trump administration’s recent restrictions on asylum eligibility. The order states:
The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.
Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. She concludes:
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
Tuesday, September 10, 2019
Brian Soucek & Remington Lamons have published Heightened Pleading Standards for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875 (2019). Here’s the abstract:
In over a thousand cases, federal district courts have considered whether the heightened pleading standards imposed on plaintiffs in Twombly and Iqbal also apply to the affirmative defenses raised in defendant’s answers. Courts are split, and alongside the usual textual and policy arguments they offer, a less expected consideration is often raised: the fact that a majority of other courts have decided the same way. Court-counting precedent, as we call this kind of reasoning, requires justification, not least because—as we find here—judges get their count wrong a full third of the time.
This Article—based on a study of 1,141 federal opinions decided in the ten years after Twombly—does two things. It provides the first comprehensive answer to an important doctrinal question: what pleading standard do federal courts apply to defendants—and how has that standard varied over time and across the country? Second, the Article reveals that judges deciding this issue have engaged in court-counting a surprising 27% of the time. Given the previously unacknowledged importance of court-counting precedent in the lower federal courts, this Article asks whether and when it is warranted.
Thursday, September 5, 2019
Wednesday, September 4, 2019
Just in time for the new semester, Michael Green (William & Mary) has posted The Erie Doctrine: A Flowchart to SSRN.
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.
Today on the Courts Law section of JOTWELL is Marin Levy’s essay, Confronting Online Advocacy. Marin reviews Jeff Fisher & Alli Larsen’s recent article, Virtual Briefing at the Supreme Court, 109 Cornell L. Rev. (forthcoming 2019).
Tuesday, September 3, 2019
Symposium: “Class Actions, Mass Torts, and MDLs: The Next 50 Years” (Lewis & Clark Law School, November 2019)
The Pound Civil Justice Institute and Lewis & Clark Law School are co-sponsoring a symposium entitled Class Actions, Mass Torts, and MDLs: The Next 50 Years.
It will take place at Lewis & Clark Law School in Portland, Oregon on November 1 & 2, 2019.
You can register to attend the symposium here. It’s free for judges, law clerks, academics, law students, and public officials.
Thursday, August 29, 2019
Rosalind Dixon and Vicki Jackson have published Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283 (2019). Here’s the abstract:
Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model’s attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts—for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions’ appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”—through some meaningful degree of domestic support for the role of such judges and through the foreign judges’ own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”
Wednesday, August 28, 2019
Monday, August 26, 2019
Caleb Nelson has published "Standing" and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703 (2019). Here’s the abstract:
Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.
Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.
Friday, August 23, 2019
Burbank & Farhang on the Effects of Judicial Partisanship and Identity on Class Certification Decisions
Steve Burbank & Sean Farhang have posted on SSRN a draft of their article, Politics, Identity, and Class Certification on the U.S. Courts of Appeals. Here’s the abstract:
This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with pro-certification outcomes. Contrary to conventional wisdom in the scholarship on diversity on the bench, such diversity may be consequential to lawmaking beyond policy areas conventionally thought to be of particular concern to women and racial minorities.
Class action doctrine is a form of trans-substantive procedural law that traverses many policy areas. The effects of gender and racial diversity on the bench, through making more precertification law, radiate widely across the legal landscape, influencing implementation of consumer, securities, labor and employment, antitrust, prisoner’s rights, public benefits, and many other areas of law. The results highlight how the consequences of diversity extend beyond conceptions of “women’s issues” or “minority issues.” The results also suggest the importance of exploring the effects of diversity on trans-substantive procedural law more generally.
Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of males in the majority (mirroring what we find with respect to African American judges in class certification decisions). These results allowed for optimism that the panel structure — which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority — actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism.
Our gender results are quite different and more normatively troubling. We observe that women have more pro-certification preferences based on outcomes when they are in the majority. However, panels with one female are not more likely to yield pro-certification outcomes. Female majority panels occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships.
Our suggestions regarding mechanisms that may help to explain these results are speculative and tentative. Recent scholarship on the gender gap in political discussions and decision-making illuminates some disquieting possibilities. If the dynamics identified by this research are at play, one possibility is that a female judge in the minority who vigorously advocates for a preferred outcome is less successful because, as a panel minority in a substantive domain that, unlike anti-discrimination law, does not elicit gender-based deference, she is regarded as less authoritative and influential. Another is that the reinforcement of a female majority increases her propensity to advocate preferences that differ systematically from those of her male colleagues in areas without obvious gender salience.
Thursday, August 22, 2019
Amy Schmitz has published Expanding Access to Remedies through E-Court Initiatives, 67 Buff. L. Rev. 89 (2019). Here’s the abstract:
Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public courts have continued to insist on traditional face-to-face procedures. Nonetheless, e-courts and public ODR pilots are developing throughout the world in particular contexts such as small claims and property tax disputes, and are demonstrating how technology can be used to further efficiency and expand access to the courts. Accordingly, this Article explores these e-court initiatives with a critical eye for ensuring fairness, due process, and transparency, as well as efficiency, in public dispute resolution.
Wednesday, August 21, 2019
Nicholas Parrillo has published Negotiating the Federal Government's Compliance with Court Orders: An Initial Exploration, 97 N.C. L. Rev. 899 (2019). Here’s the abstract:
Judicial review of federal agencies rests on the premise that if a court gives an order to an agency, the agency will obey. Yet the federal government’s compliance with court orders is far from automatic, especially with orders telling an agency to act affirmatively, which may strain limited agency resources, interfere with the agency’s other legally required tasks, or force the agency to act on deficient information. An agency may invoke these difficulties to convince a judge that it should be cut more slack—that is, given more latitude (especially more time) to comply. Judges often find the agency’s difficulties to be quite real and hold back from demanding strict and rapid compliance. Thus, whether an agency must actually do what a court has ordered, and on what terms, entails a delicate negotiation between agency, judge, and plaintiff. These compliance negotiations, despite their great practical importance, are little analyzed or understood in the academic literature, for it is difficult to learn about them through traditional sources like appellate case law. This Essay, drawing upon a large cache of dockets from district court cases in which compliance troubles arose, provides an initial exploration of this unexplored subject. This Essay finds that the central problem in these cases is the judge’s access (or lack of access) to information about why the agency is falling short and whether it could do more. On this theme, this Essay discusses (1) the kind of information that an agency can provide about its own internal management so as to convince the judge that it is trying hard enough to comply; (2) the imperfect and even crude methods that judges use to discern whether an agency is trying hard enough; and (3) the ways in which judges can employ information-gathering techniques, such as requiring testimony by high agency officials, as quasi sanctions to force the agency to pay more attention to what the court has ordered.
Monday, August 19, 2019
Jiangfeng Li has published Climate Change Litigation: A Promising Pathway to Climate Justice in China?, 37 Va. Env. L.J. 132 (2019). Here’s the conclusion:
Climate change litigation has yet to take root in China. However, as this article argues, China can develop climate change litigation to effectively address the serious problem of climate change. Tackling climate change requires a multidimensional governance regime that includes both top-down regulation from government agencies and bottom-up regulation from public participation in judicial or non-judicial activity.
Litigation can be a driving force for an effective response to climate change through the process of the courts applying and interpreting statutes, prods and pleas, and the flow-on regulatory effects of the litigation process. While exploring the regulatory role climate change litigation can play, this article has offered a theoretical prognosis of potential pathways for the emergence of climate change litigation in China. It also discussed the economic, social, historical, and cultural factors currently impeding the development of climate change litigation in China. However, considering China’s domestic concerns about the risks and impacts of climate change and China’s evolving legal framework and social sentiments regarding climate change and environmental litigation, climate change litigation has an opportunity to develop in China.
In light of these factors, this article proposes that China should enact a pro-litigation climate change statute, extend government enforcement litigation to climate change, and enhance public participation and education with respect to climate change regulation. Though there is still considerable uncertainty regarding the future prospects of climate change litigation in China, this article holds an optimistic view that China will gradually become receptive to climate change litigation.
Friday, August 16, 2019
Ninth Circuit partially stays nationwide injunction against Trump administration's asylum restrictions
Today the Ninth Circuit issued a 2-1 decision in East Bay Sanctuary Covenant v. Barr. The court partially grants and partially denies the government’s motion to stay a nationwide injunction issued by the district court against the Trump administration’s recent restrictions on asylum eligibility.
Because the government had not made a “strong showing” that it was “likely to succeed on the merits,” the court denies the motion for a stay “insofar as the injunction applies within the Ninth Circuit.”
However, the court grants the motion for a stay “insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands.” On that point, the court states: “While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”
The judges on the motions panel are Judge Wallace Tashima, Judge Milan Smith, and Judge Mark Bennett. Judge Tashima dissents in part—he would have denied the motion to stay in its entirety.
James Durling has published The District of Columbia and Article III, 107 Geo. L.J. 1205 (2019). Here’s the abstract:
Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the District’s non-Article III court system. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III.
This Article challenges that consensus. It shows that, as a historical matter, Article III’s judicial protections were long believed to apply to the District. And it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the capital. In short, this Article demonstrates that the current D.C. court system likely violates Article III.
This conclusion should be significant in its own right, since the right to an Article III judge has long been viewed as an essential constitutional safeguard. Indeed, the modern history of the D.C. court system reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the capital. But the historical research presented in this Article also has broader implications outside the seat of government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.
Thursday, August 15, 2019
The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:
The Pound Institute is pleased to offer again this year our recently-established award designed to recognize current research and writing on civil justice issues, and to encourage such research in the future. The Civil Justice Scholarship Award will be presented every year (as possible) at Pound’s winter Fellows receptions. The nomination deadline is Monday, September 16, 2019; the award will be presented on Sunday, February 9, 2020 in New Orleans, Louisiana.
Wednesday, August 14, 2019
Richard Fallon has published Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933 (2019). Here’s the abstract:
The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among leading scholarly critics—to see interconnected problems in a sufficiently broad frame.
This Article refocuses analysis along four interconnected dimensions. First, it examines relevant constitutional history, centrally including that of the maxim “for every right, a remedy.” That maxim has exerted significant generative force, but it has also been widely misunderstood. Second, the Article reviews and critiques recent Supreme Court decisions involving constitutional tort claims, many of which reflect fallacious assumptions. Third, the Article addresses the question, What role would damages and injunctive remedies for constitutional violations play in a justly and prudently designed legal system unfettered by historical accidents and path dependence? Commentators almost invariably assume that any gap between constitutional rights and individually effective, make-whole remedies is inherently regrettable. This Article refutes that premise. Although an ideal regime would substitute entity liability for officer liability and afford broad opportunities for victims of constitutional violations to vindicate their rights, it would not always authorize recovery of money damages.
Finally, the Article considers reforms that the Supreme Court could effectuate in the absence of action by Congress. Among other proposals, it calls for expansion of municipal liability in suits under 42 U.S.C. § 1983 and for reinvigoration of Bivens actions, but it defends the main outlines of qualified immunity doctrine against a spate of recent critics.