Thursday, January 17, 2019
Steve Burbank and Tobias Wolff have published Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018). Here’s the abstract:
After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of a tolling rule. The same need can arise for those who wish to opt out of a certified class action. American Pipe and its progeny provide such a tolling rule in some circumstances, but many unanswered questions remain about when the doctrine is available.
In June 2017, the Court decided CalPERS v. ANZ Securities, holding that American Pipe tolling was foreclosed to a class member who opted out of a certified class in an action brought to enforce a federal statute (the Securities Act of 1933) that contained what the Court labeled a “statute of repose.” In June 2018, the Court decided Resh v. China Agritech, which held that American Pipe tolling is not available when absent members of a putative class file another class action following the denial of certification in the first action rather than pursuing their claims individually in subsequent proceedings.
In this Article we develop a comprehensive theoretical and doctrinal framework for the American Pipe doctrine. Building on earlier work, we demonstrate that American Pipe tolling is a federal common-law rule that aims to carry into effect the provisions and policies of Federal Rule of Civil Procedure 23, the federal class action device. Contrary to the Court’s assertion in CalPERS, American Pipe is not an “equitable tolling doctrine.” Neither is it the product of a direct mandate in Rule 23, which is the source of authority, not the source of the rule. Having clarified the status of American Pipe tolling as federal common law, we explain the basis on which the doctrine operates across jurisdictions, binding subsequent actions in both federal and state court. We argue that the doctrine applies whether the initial action in federal court was based on a federal or state cause of action—a question that has produced disagreement among the lower federal courts. And we situate American Pipe within the framework of the Court’s Erie jurisprudence, explaining how the doctrine should operate when the putative class action was in federal court based on diversity jurisdiction and the courts of the state in which it was filed would apply a different rule. Finally, we discuss how CalPERS should have been decided if the Court had recognized the true nature of the American Pipe rule and if it had engaged the legislative history of the Securities Act rather than relying on labels.
Wednesday, January 16, 2019
Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Procedural Innovations to Address the Secrecy Problem in National Security Litigation. Pam reviews Shirin Sinnar’s recent article, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018).
Tuesday, January 15, 2019
Today the Supreme Court issued an 8-0 decision in New Prime Inc. v. Oliveira. Justice Gorsuch authors the opinion (Justice Kavanaugh did not participate).
The case involves § 1 of the Federal Arbitration Act, which provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” This provision
The Court addresses two questions. The first is: “When a contract delegates questions of arbitrability to an arbitrator, must a court leave disputes over the application of §1’s exception for the arbitrator to resolve?” [Op. at 1] The answer is no. “Given the statute’s terms and sequencing, we agree with the First Circuit that a court should decide for itself whether §1’s ‘contracts of employment’ exclusion applies before ordering arbitration.” [Op. at 4 (emphasis added)]
The second question is: “[D]oes the term ‘contracts of employment’ refer only to contracts between employers and employees, or does it also reach contracts with independent contractors?” [Op. at 1] The answer is that contracts with independent contractors can also be excluded from the FAA. Justice Gorsuch reasoned that “Congress used the term ‘contracts of employment’ in a broad sense to capture any contract for the performance of work by workers,” [Op. at 10 (emphasis in original)], and that the term ‘workers’ “easily embraces independent contractors.” [Op. at 10]
This part of Justice Gorsuch’s opinion emphasizes that statutory terms “generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.” [Op. at 6 (citation omitted)]. Justice Ginsburg writes a brief concurring opinion to stress that there may be some exceptions to this interpretive principle, because Congress “may design legislation to govern changing times and circumstances” [Ginsburg Op. at 1]. Her opinion notes that “sometimes, words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” [Ginsburg Op. at 2 (citation omitted)]
Friday, January 11, 2019
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Id. § 2000e-5(b), (f)(1).
The question presented is: Whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim-processing rule, as eight Circuits have held.
Tuesday, January 8, 2019
Today the Supreme Court issued a unanimous decision in Henry Schein, Inc. v. Archer & White Sales, Inc. Justice Kavanaugh’s opinion—his first on the Supreme Court—begins:
Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68−70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943−944 (1995).
Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.
Friday, January 4, 2019
Earlier this week, Chief Justice Roberts released his 2018 Year-End Report on the Federal Judiciary. It focuses on the report and recommendations issued by The Federal Judiciary Workplace Conduct Working Group earlier this year, and the steps the judiciary has taken toward implementing those recommendations.
Monday, December 24, 2018
The 2019 AALS Annual Meeting is happening in New Orleans next week. Here are a few panels that may be of interest (click the links for full details)…
Thursday, January 3, 2019
1:30 pm - 3:15 pm AALS Hot Topic Program
Partisan Conflict and the Legitimacy of the Supreme Court
3:30 pm - 5:15 pm Federal Courts
Teaching the Federal Courts Class
Friday, January 4, 2019
8:30 am - 10:15 am Conflict of Laws
The Hague Judgements Convention
9:00 am - 12:15 pm AALS Symposium
"Court Debt": Fines, Fees, and Bail, Circa 2020
10:30 am - 12:15 pm Federal Courts
Congressional Structuring of the Judicial Power
1:30 pm - 3:15 pm Litigation, Co-Sponsored by Alternative Dispute Resolution and Technology, Law and Legal Education
Artificial Intelligence and Litigation
Saturday, January 5, 2019
10:30 am - 12:15 pm AALS Program
#MeToo - The Courts, The Academy and Law Firms
3:30 pm - 5:15 pm AALS Open Source Program
Hope to see folks there!
Friday, December 21, 2018
Alex Parkinson has published Behavioral Class Action Law, 65 UCLA L. Rev. 1090 (2018). Here’s the abstract:
Behavioral law and economics has been deployed to analyze nearly every field of law. Class action practice and procedure is a notable exception. This Article is the first to supplement stagnating class action debates and the traditional law and economics account of class action law with behavioral psychology. It draws on a litany of behavioral tendencies, biases, and pathologies— ranging from prospect theory, loss aversion, anchoring, and the status quo bias to the availability heuristic, group-attribution error, reactive devaluation, and the endowment effect—and considers their application to class action practice generally and Rule 23 in particular. In addition to this descriptive survey, this Article makes three contributions to class action scholarship. First, it applies behavioral psychology to an unresolved puzzle: how to explain opt-out rights. Traditional law and economics cannot explain why Rule 23 permits absent class members to opt-out of certain class actions, which appears inefficient and dependent on irrational behavior, or why this opt-out right is exercised according to predictably irrational patterns. However, behavioral law and economics fills these analytical gaps. Second, this Article demonstrates the prescriptive power of behavioral law and economics by illustrating how absent class members can be nudged toward class settlement by self-interested choice architects. Finally, this Article crystallizes the judicial role in light of the potency of behavioral psychology, choice architecture, and nudging in class settlement notices.
Thursday, December 20, 2018
Campos on the Bolch Judicial Institute’s Guidelines and Best Practices for Implementing the 2018 Amendments to FRCP 23
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Practice Makes Perfect. Sergio reviews Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions, which was published in 2018 by the Bolch Judicial Institute at Duke Law School.
Wednesday, December 19, 2018
Diego Zambrano has published Judicial Mistakes in Discovery, 113 Nw. U. L. Rev. 197 (2018). Here’s the abstract:
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Friday, December 14, 2018
Joseph Seiner (South Carolina) has posted a new article on SSRN: The Discrimination Presumption, 94 Notre Dame L. Rev. __ (2019) (Forthcoming). This piece offers a new approach to pleading employment discrimination cases given recent social science research in the area.
Here is the abstract:
Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.
Thursday, December 13, 2018
Allan Erbsen has posted on SSRN a draft of his essay, Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction, 128 Yale L.J. F. __ (forthcoming 2019). Here’s the abstract:
This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law. The Supreme Court’s 2018 decision in South Dakota v. Wayfair held that the Commerce Clause permits enforcement of sales taxes against online retailers with no physical presence in the taxing state. In contrast, the Court’s 2011 decision in J. McIntyre Machinery v. Nicastro held that the Due Process Clause prevents states from exercising personal jurisdiction over nonresident manufacturers who did not target the forum. Wayfair and Nicastro address conceptually similar questions about extraterritorial enforcement of state law yet rely on inconsistent assumptions. A close reading of Wayfair illuminates normative and practical insights that warrant narrowing or overruling Nicastro. More generally, this Essay highlights how situating doctrinal problems in the broader context of horizontal federalism can improve constitutional analysis.
Wednesday, December 12, 2018
Ronen Perry has published Crowdfunding Civil Justice, 59 B.C. L. Rev. 1357 (2018). Here’s the abstract:
The Article provides a systematic law and economics analysis of civil litigation crowdfunding. It first distinguishes between investment-based and non-investment-based crowdfunding models. Investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of frivolous litigation. Thus, it should be minimally regulated by securing disclosure of relevant information to potential investors. Non-investment-based crowdfunding of process costs should be subject to professional vetting, which will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. Non-investment-based crowdfunding of outcome costs should be prohibited when it undermines the primary objectives of substantive law.
Tuesday, December 11, 2018
Mike Hoffheimer has published The Stealth Revolution in Personal Jurisdiction, 70 Fla. L. Rev. 499 (2018). Here’s the abstract:
Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law.
This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal jurisdiction, and fosters a narrative of lower court lawlessness that both devalues the work of the lower courts and erodes public confidence in the judiciary.
This Article urges the Court to acknowledge that it is reforming the law of personal jurisdiction, to provide reasons for its new restrictions on the power of courts that are grounded on constitutional principle and sound policy, and to construct a narrative that relates its programmatic reform of personal jurisdiction to the history and purpose of the Due Process Clause or to some other appropriate constitutional authority.
Wednesday, December 5, 2018
Elizabeth Beske has published Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808 (2018). Here’s the abstract:
Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. Harper v. Virginia Board of Taxation and Griffith v. Kentucky, both moored in Article III, require that any case’s new rule apply not only to future litigants but also to those whose cases are pending. A nonprecedential case by definition has no application beyond its litigants. This raises no problem where a case adds nothing new, as other litigants already have access to the precedents on which it relies. However, the majority of circuits allow nonprecedential opinions to break new ground, and these nonprecedential opinions frequently make law, command dissents, create or deepen circuit splits, and go up on certiorari to the Supreme Court.
Many commentators have debated the practical and legal implications of nonprecedential opinions, but this Article is the first to identify the inconsistency between groundbreaking nonprecedential opinions and settled principles of adjudicative retroactivity. This Article concludes that permitting nonprecedential opinions as an exception to adjudicative retroactivity threatens to drain Harper and Griffith of all but symbolic significance. Although a handful of circuits have guidelines for when an opinion must have precedential effect, this Article proposes use of the “new rule” construct, already familiar and well-developed in the context of habeas corpus and official immunity, as a mechanism for differentiating those opinions that may be designated nonprecedential from those that—under settled doctrine—may not.
Tuesday, December 4, 2018
Lauren Bell has published Monitoring or Meddling? Congressional Oversight of the Judicial Branch, 64 Wayne L. Rev. 23 (2018). It concludes:
This Article has taken steps to remedy the disconnect between the literature on congressional oversight of the executive branch and oversight of the judicial branch. It has demonstrated that several of the theories that explain congressional oversight in the executive branch context also explain Congress’ interactions with the judicial branch. Moreover, this article has demonstrated that while Congress may be challenged in its capacity to provide effective oversight of the executive branch, it is able to effectively curb the courts. While traditional oversight activities, such as hearings and requests for information are likely to be more limited in the judicial context, when Congress turns its sights on the courts, it brings significant constitutional, statutory, and institutional authority to bear on reviewing judicial actions and offering correction.
In sum, if congressional oversight of the executive branch is political control of the bureaucracy, then it is hard not to view the totality of Congress’ efforts at monitoring and influencing the judicial branch chronicled here as attempts at political control of the judiciary. For this reason, it is unfortunate that the literature on congressional oversight continues to ignore almost completely Congress’ role in shaping the federal courts. Bringing the courts into the oversight literature will provide additional insights into the ways in which Congress approaches its oversight responsibilities, while allowing a fuller understanding of the impact of congressional oversight on the judicial branch.
Saturday, December 1, 2018
Friday, November 30, 2018
Doron Kalir has published Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018). It begins:
On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true “clash of the titans,” this 5–4 decision featured colorful comments on both sides, claims of “absurdities,” uncited use of Alice in Wonderland vocabulary (“curiouser,” anyone?), and an especially harsh accusation by the dissent that “we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place.”
One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code section. Far from it. The sole issue in Artis was the interpretation of 28 U.S.C. § 1367(d), an obscure tolling provision dealing with the time period allowed for plaintiffs who filed their claims in federal court and were dismissed to refile their claims in state court.
Thursday, November 29, 2018
Fred Smith has published Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018). Here’s the abstract:
Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.
This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits. Under Younger v. Harris — and the doctrine of Younger abstention — federal courts may not disrupt a state criminal proceeding by means of an injunction or declaratory judgment. Federal courts’ reluctance to resolve such cases is predicated on federalism interests. Traditionally, however, federal courts have nonetheless entertained suits to stop or prevent irreparable harm, especially where an underlying state process provides an inadequate means to raise federal constitutional claims. When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave.
This Article argues for an exception to Younger abstention when litigants challenge structural or systemic constitutional violations. “Structural” means a flaw that infects a judicial process’s basic framework in incalculable ways, such as denial of counsel at a critical stage or a judge’s financial interest in the outcome. “Systemic” means a flaw that routinely impacts litigants by way of a policy, pattern or practice, or other class-wide common set of violations. Because the United States Supreme Court has already made clear that “inadequate” state proceedings should not stand in the way of federal intervention, this exception can be adopted and implemented without major changes to existing Supreme Court precedent. No one should be in jail or punished because she is poor. Federal courts should ensure that this substantive right has practical effect.