Wednesday, October 31, 2007
We introduced our anonymous 1L, Crash McAvoy, here. We've heard about Crash's first-week experience, his fear of a fundamental misunderstanding, and how Joseph Glannon is heroic. This week Crash provides perspective on other aspects of the 1L experience:
Just when I thought I might be starting to get a handle on law school-- a much needed fall break had allowed me to strike a balance between preparing for class, participating in extra-curricular activities, and maintaining some semblance of a social life-- a couple new factors were added to the mix. My professors have recently started making constant references to approaching exams, and the law school administration has been flooding me and my classmates with information about the summer job search. So much for my attempt to “just focus on learning the law.”
I suppose that, because exams are only two months away, it makes sense that my professors have finally stopped acting like they are never going to happen. It is the point in the semester where it seems necessary to start looking back and seeing things as a developing whole. Even thinking about exam preparation makes me a little nervous, but as I understand the material better on a day-to-day basis, I begin to think that maybe I am ready to start working on application and integration. This same cautious optimism, however, does not extend to the other new item on the to-do list: the summer job search. I do not feel at all ready to start planning, months before my first legal evaluation of any kind, for my debut into the legal profession.
The first time I truly felt the difference between getting a liberal arts education and attending professional school was the day I opened my email inbox and saw nearly the entire first page was full of messages from career services. Initially, I could not believe they would send so many emails in such a short time, but now I can't help but think that it was appropriate. The flood of career information seemed overwhelming and poorly timed; after a week of attempting to navigate the process, I can say that is exactly how the one L job search feels.
Part of the difficulty is that I, like most of my peers, feel stretched for time and pulled in too many different directions; the fact that my first practice exams were distributed the same week that job search panels began significantly compounded the difficulty of trying to figure out what the best use of my time is. I realize, ultimately, I am attending law school to get a job, so I definitely don't want to short-change the search. However, in the long run, my grades will presumably play a large role in determining what my job options are. Without having recieved a single grade in law school so far, I have no sense of whether the amount and way I am studying is preparing me to succeed. It seems nearly impossible to make any estimate about the marginal benefits of using my time in a particular way; the lack of information I have this first semester has left me feeling completely unable to maximize the utility of my time. The more things I have to schedule in, the more frustrating that becomes.
The other difficulty I am experiencing is how disconnected my law school experience thus far seems from this upcoming job search. I feel this disconnect on a number of different levels. The first is that I am no closer than when I started to being able to answer the first question every non law student I meet asks: "what kind of law do you want to practice?" Other than the fact that on the worst days of Civ Pro I feel sure I want to do transactional law, it seems my first semester of professional school has done very little to prepare me to make an informed choice about taking the first step of my professional career. While I am sure I now probably have more knowledge about the philosophical underpinnings of procedural due process than the average American, I am not sure I understand much better what it means to be a lawyer. Even Civil Procedure, which I expected to be the most practical part of my first semester education, has provided me with only a minimal sense of what a trial lawyer-- let alone a typical lawyer—does.
I'm certainly not criticizing the classes I’ve taken or the method of instruction; I have enjoyed them, learned a lot, and I am far from qualified to comment on how they will serve me in the future. However, it does seems somehow ironic that I am being pulled away in the middle of a semester full of theorizing to attend to the supremely practical matter of ensuring employment. I think that holding off this flood of information about the job search process, at least until I have had an opportunity to apply the knowledge I've gained to an exam question, would make the apparent disconnect easier to deal with. Also helpful, and perhaps more realistic, would be hearing from a professor how what has interested us about a particular class might point in one career direction or another.
The ad-hoc strategy I have developed for now is to think of the career search as a factor completely unrelated to my classes; I’m just studying for my classes as I have been and looking for jobs that somehow seem interesting to me independent of anything I have learned in law school. Still, I hope that, at some point, my professional education and my chosen profession won't seem like such distinct entities. ~Crash
Tuesday, October 30, 2007
The University of Missouri-Kansas City School of Law is looking to fill an endowed professorship--the Douglas Stripp Distinguished Professor of Law in Advocacy. David Achtenberg, chair of the search committee, says the position would be a nice fit for a CivPro Prof. Here is the official UMKC Advertisement.--Counseller
Monday, October 29, 2007
Courts and commentators have not uniformly interpreted the scope of the Anti-Injunction Act's relitigation exception. This exception allows federal courts to enjoin state court proceedings to "protect or effectuate" a previous judgment of the federal court. The Supreme Court seemed to make clear, in the Chick Kam Choo case, that, while the relitigation exception has its roots in res judicata and collateral estoppel, the scope of the exception is not so broad as to be coextensive with both claim and issue preclusion. While there is some language in Chick Kam Choo that could, if viewed in isolation, support such a broad construction, I have always taught in my Federal Courts class that the err of the broad interpretation is just that -- that it views the language in isolation. Judge McConnell is spot on in his analysis, which thoughtfully considers the impact of a previous Supreme Court case, Atlantic Coast Line, and the policies underlying preclusion and the AIA. Several excerpts from Judge McConnell's opinion appear below (and are edited without notation for readability):
Since Chick Kam Choo, this Court has dealt with the AIA's relitigation exception three times, but we have never squarely addressed its scope. We do so now and, like the vast majority of circuits that have explicitly or implicitly considered this issue, conclude that Chick Kam Choo leaves little room for doubt: the AIA's third exception does not authorize a federal court to protect the full res judicata effect of its decisions. Instead, it authorizes injunctions against state adjudication of issues that "actually have been decided by the federal court." Chick Kam Choo, 486 U.S. at 148.
The Ninth Circuit appears to be the only circuit that has rejected the majority reading of Chick Kam Choo and continues to apply the broader conception of the relitigation exception. Some commentators have also taken issue with the majority view. Admittedly, the Chick Kam Choo opinion contains language pointing both ways. The Court broadly stated that the relitigation exception is rooted "in the well-recognized concepts of res judicata and collateral estoppel." 486 U.S. at 147. Given that res judicata extends beyond claims actually decided and includes those that could have been raised,this statement might be seen to conflict with the opinion's later statement that the exception applies only to "claims or issues ... actually ... decided by the federal court." Chick Kam Choo, 486 U.S. at 148. As the Ninth Circuit explained:
To read Choo as the other Circuits have ... would in essence be to read res judicata entirely out of section 2283. Any issue which was "actually litigated" by the parties in a prior proceeding will be barred by collateral estoppel ("issue preclusion"), without any need to rely on res judicata ("claim preclusion").
Be that as it may, we think Chick Kam Choo's specific explication of the scope of the relitigation exception, along with the case's actual outcome (and that of Atlantic Coast Lines ), leads to the conclusion that the relitigation exception does not encompass all aspects of claim preclusion. Whether or not this is the best interpretation of the statute, and whether or not this limitation undermines the rights that are supposed to attach to a federal judgment. Chick Kam Choo says what it says, and we must follow it.
In any event, we believe this interpretation is consistent with the dual purposes of the AIA: to respect comity while also "ensur[ing] the effectiveness and supremacy of federal law." Chick Kam Choo, 486 U.S. at 146. When a federal court affirmatively decides an issue, that decision is entitled to respect and finality. But when a federal court has not passed on a specific claim, the main concern raised by subsequent state litigation is harassment of the opposing party. That concern is not to be taken lightly, but it is the province of res judicata, a defense that a party is free to raise in the subsequent state-court suit--and that the state courts "are presumed competent to resolve," Chick Kam Choo, 468 U.S. at 150.
You can find the full opinion here. --RR
Thursday, October 25, 2007
For anyone interested in having a copy of the pleadings in this case, you may download them with the links below.--Counseller
Wednesday, October 24, 2007
In Exxon v. Allapatah, the Supreme Court held that, so long as there is no defect in the citizenship of the parties, a federal court can exercise supplemental jurisdiction over a claim for less than the jurisdictional amount by a plaintiff joined under rule 20. Exxon was a 1367(a) case, which did not fit the diversity carveout of 1367(b) because that carveout does not cover claims by plaintiffs joined under Rule 20 (and because it was a single-defendant case). But what if the second claimants were seeking to intervene instead of being named as plaintiffs in the original complaint? That situation is covered by the carveout, as made clear by Allapatah, the text of the statute, and the Northern District of Oklahoma in a recent decision you can find here. --RR
We posted here about Gil Seinfeld's article The Puzzle of Complete Preemption and interviewed him about it here. Paul E. McGreal responds to Seinfeld's position (and that of Trevor Morrison in Complete Preemption and the Separation of Powers) in his brand new paper In Defense of Complete Preemption, published in the University of Pennsylvania Law Review. The abstract follows.--Counseller
Recent writings by Professors Gil Seinfeld and Trevor Morrison criticize the Supreme Court's complete preemption doctrine as misguided and unconstitutional, respectively. Professor Seinfeld suggests reforming the doctrine around field preemption, and Professor Morrison rejects complete preemption as inconsistent with separation of powers. This response defends the Supreme Court's doctrine as it currently stands: A state law claim arises under federal law (and so may be removed to federal court) when a federal statute both preempts the claim and supplies an exclusive federal remedy. This doctrine is a sensible application of the well-pleaded complaint rule that prevents improper circumvention of federal question jurisdiction.
Tuesday, October 23, 2007
You might want to take a look at Air Measurement Tech, Inc. v. Akin Gump from the Federal Circuit. In a case of first impression, the court determined that a legal malpractice claim based on alleged errors of patent prosecution and litigation constituted a "civil action arising under any Act of Congress relating to patents" under 28 U.S.C. section 1338(a) because the plaintiffs right to relief necessarily depended upon a substantial question of federal patent law where the plaintiff had to prove patent infringement in order to satisfy the "case within a case" element of a Texas legal malpractice claim.--Counseller
Monday, October 22, 2007
We posted here and here about surveys that paint a less than rosy picture of life as an attorney. No doubt a "work/life" imbalance is at the core of much of the dissatisfaction expressed in the surveys. As you know, associate salaries are on the rise again, but not all associates are happy about it. Some first-year associates in New York now bring down $250,000 annually, and starting associate salaries at the larger law firms in cities like Chicago and Houston have jumped to $160,000 or even $170,000. It's easy to understand why partners think of the associate pay hike as a necessary evil at best, but even some associates aren't happy with the pay increases because they know that with an increase in pay comes an increase in billable hour requirements.
In this piece, the ABA Journal reports that a handful of law firms are creating two tiers of associates in response to associates' differing views on the issue of increase pay for increased work. In one tier are those associates willing to work more for the increased pay and in the other are those who would sacrifice the pay increase for a lower billable hour requirement. Many associates will be electing to work less and earn less if the ABA Journal's February 2007 survey, "The Time-Money Trade-Off," is accurate. According to the survey, 84.2% of the nearly 2400 associates surveyed said they would be willing to earn less if it meant they could also bill less.--Counseller
Friday, October 19, 2007
Thursday, October 18, 2007
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This week's interview is with Robin Effron, a Bigelow Teaching Fellow and Lecturer at the University of Chicago School of Law, about her article forthcoming from the Southern California Law Review titled Event Jurisdiction and Protective Coordination: Lessons From The September 11th Litigation. Many thanks to Robin for a great interview.--Counseller
This is my first full CivPro class since the SCOTUS handed down Bell Atlantic v. Twombly. Here are some of the articles I'm reading to help get my brain wrapped around this issue. Maybe they'll help you too.--Counseller
Plausibility Pleading by A. Benjamin Spencer
UPDATE: Suja Thomas also has an article on the subject forthcoming from the Minnesota Law Review--Why the Motion to Dismiss is Now Unconstitutional. Thanks to Scott Dodson for his friendly reminder about Suja's article in the comments section. If you know of other articles on this topic, please mention them in the comments. Of course, you can also learn a great deal from Scott's posts on this blog on the subject here and from his essay Pleading Standards After Bell Atlantic v. Twombly.--Counseller
Tuesday, October 16, 2007
Last week, my professor started class by announcing that, if anyone was wondering, it was normal to be tired—probably more tired than we had ever been in our entire lives. My class laughed at this unorthodox opening, but he went on. He said we were at the point of the first year where the novelty of studying the law has begun to fade, the reading has piled up, and we probably felt the need to start putting things together. We were bound to be feeling a little anxious and, because of the lack of evaluation, maybe even a little insecure.
He was right. As I sit down to write this blog, my mind is being pulled in so many different directions by the material that I am struggling to come up with a single coherent insight about my Civ Pro experience. I started a couple of different entries, but, after a couple of sentences, found my finger on the backspace key and myself staring at a blank page and a blinking cursor. Everything I type seems true at first, but, as I read back over it, I begin to doubt its accuracy. I find myself with less I can confidently say about Civil Procedure than when I began the class two months ago. The theme of the past week seems to be that doubt has set in. I can only hope that doubt is a natural product of the process of really grappling with the material.
I tried to write a response to my professor’s warning that the students who should be worried about their study habits are the ones who are not confused at this point. At first, I was going to say I found that thought reassuring. Then, I began to wonder on what level I should be confused; I think I understand some things fairly well, does that mean I may be missing something in those areas? What about the fact that sometimes I think I understand things until I am asked to apply them a couple weeks down the line in a new context? Does that imply an understanding that is too shallow in the first place, or are those moments of confusion what my professor was referring to? When I really think about it, I become confused about whether I am properly confused. This is likely a sign I am missing undergraduate culture and the constant opportunities to demonstrate my knowledge it provided.
The lack of intermittent evaluation in law school seems to me to have a particularly acute effect on my anxiety toward Civ Pro. The combination of memorization, understanding and application that will appear on the final exam in a few shorts months is particularly mysterious to me. Because of this, class is starting to transform from a purely experiential learning process, to a place where I mentally try to answer the every question being asked and then evaluate my performance. I wonder if I should fight this tendency; I think I may absorb more if I just focused on the flow of class. But, as I said, doubt has set in and I find myself instinctively scrambling for any way to alleviate the doubt.
Why is this feeling especially acute in Civ Pro? Partly, I think, because the Civ Pro still feels more foreign and less familiar than what we are learning in my common law classes; partly because the material is so dense and so time-consuming that I have simply left myself less time for synthesis.
Next week brings a most welcome fall break. In addition to getting some rest, I hope to spend some time working on synthesizing and outlining the Civ Pro material I have learned so far. I don’t think my expectations are unrealistic; I don’t hope to feel like I have everything mastered by the end of the week. What I do hope, however, is to get a handle on my confusion. Maybe next time I post, even if I can’t produce a great insight, I will be grounded enough in my own confusion to express a coherent concern. --Crash
Monday, October 15, 2007
The ABA Journal reports that Civ Pro Helps Joel Steinberg overturn a $5 M Award. The article begins: "The law of collateral estoppel has resulted in a partial victory in New York’s highest court for disbarred lawyer Joel Steinberg, convicted of manslaughter for killing his adopted daughter." Law.com describes the procedural history more here and quotes the critical passages from the opinion:
In order to invoke collateral estoppel there "must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling," the Court wrote, citing Buechel v. Bain 97 NY2d 295 (2001).
The jury in Steinberg's criminal trial was not required to determine whether Lisa had been abused in the months leading up to the night of her death and it cannot be said that the issue was "necessarily decided," as Justice Nardelli ruled when awarding summary judgment on the causes of action based on past abuse, the court ruled.
Friday, October 12, 2007
And so it begins, the inevitable questions about why policy matters. In my class we have completed PJ, SMJ, Venue, Erie and an introduction to pleadings. In my wrap-up earlier this week setting the stage for our section on Pleading I must have mentioned "policy" considerations a few too many times for the comfort of my student's ---some of whom are still in search of "the right answer." Of course if one is searching for "the right answer" law school isn't exactly the place to be, but students who have nonetheless decided to stick it out in search of that "right answer" will find policy arguments extremely troubling--- in fact they may even disregard such fluffy ambiguities in favor of clear cut rules. Our challenge is to steer them away from that inclination without giving away too much.
Reference to policy is necessarily incorporated into a student's analytical framework, and as professors we do them a disservice by giving short shrift to policy concerns especially because our students are already disinclined to spend much time thinking about policy --- at least in an ordered fashion. They may understand that policy matters, but they don't know how to integrate policy in an organized analytical fashion. When analyzing the "procedural-substantive" dichotomy for example, students may recognize that they must make some inquiry into policy concerns because judges necessarily will, but they are not sure how to frame or place such arguments. We know that it is important though, consider what Justice Rutledge tells us dissenting in Ragan v. Merchants Transfer & Warehouse Co.
"The real question [facing a judge] is not whether [a procedural-substantive division] shall be made, but how it shall be made, whether mechanically by reference to whether the state courts' doors are open or closed, or by a consideration of the policies which close them and their relation to accommodating the policy of the Erie rule with Congress' power to govern the incidents of litigation in diversity suits."
In fact while we as Professors may find and our students certainly will find solitude in technical legal rules, rules which would foreclose the subjective trip through "policy land." Those trips through policy land though, are a necessary outgrowth of our judicial system, federalism, and the analytical framework established by Erie. We know this much from Justice Frankfurter's opinion in Guaranty Trust Co. of New York v. York.
Erie R.R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts...The nub of the policy that underlies Erie R.R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in federal court instead of in State court a block away, should not lead to a substantially different result....[Erie] has been applied with an eye alert to essentials in avoiding disregard of State law in diversity cases in the federal courts. A policy so important to our federalism must be kept free from entanglements with analytical or terminological niceties.
We as professors "get" that policy is important, it gives nuance to seemingly rigid rules and provides students an opportunity to fully develop their analysis and to engage in broad versus narrow interpretation. The fact that we get it though, may come only from the fact that we recognize the big picture. The tension we face is wanting to make sure that students will grasp the material on their own. We hope that they will take the time to struggle to learn what factors, rules and policies are at play and where those factors and arguments carry the greatest weight, while on the other hand not wanting to leave them out their on their own to such a degree that they never "see the light."
When it comes to policy, I believe it is critical to explain to student's the role it plays and how and where it integrates into their analytical framework. They are buried with cases, rules and doctrine and only a select few will ever scratch the surface on how to make policy arguments. The upshot of course is that policy can be argued and analyzed in so many different ways, that we're not giving away too much by telling them where in their analysis to integrate policy arguments, we're simply aiding them in understanding where policy is helpful or in some cases necessary.
Byrd provides us with an interesting way to illustrate this point for our students. Rather than focusing on outcome determinativeness the Byrd court first discussed whether a state rule assigning decisions to judges was a rule that was “bound up with” the definition of state-created “rights and obligations." An inquiry into how "bound up" a rule is with state-created rights and state-created obligations, must make reference to elements of policy. How much reference to policy and how weighty policy concerns may be will depend on the rights, obligations, and rules at hand. So we find in this simple example that merely telling students that policy considerations are appropriate or perhaps necessary for their "bound up" analysis will go a long way toward ensuring they understand the importance and propriety of policy arguments while still allowing you as an instructor to "hide the ball" and keep them thinking.
This example highlights the critical point I discussed in a previous point. The value of taking an "analytical framework" approach--- that is at the end of each section, to spend some time wrapping up what was covered and to challenge students to develop their analytical framework as each section is completed. Doing so will ensure they tie off material as it is completed, integrate nuanced analytical methods such as policy where necessary, and prepares them for the material to be covered in the next section. Encouraging an "analytical framework" approach forces students to frame each issue and topic in a manner which will allow them to "see the big picture" at the end of the course.
We posted here in May about U.S. News & World Report naming attorney as one of the "most overrated" careers. One of the primary reasons given for the designation was a disconnect between what students believe attorneys do and what attorneys actually do. Now we have a new source to help students become more informed about the legal profession and the impact it may have on their lives. In this month's edition of the ABA Journal, Stephanie Francis Ward publishes the results of a survey of 800 lawyers on "what they think about their lives, their careers and the state of the profession." Read the results in "Pulse of the Legal Profession" by clicking here.
One of the survey's findings was of particular interest to me. According to the results, while most lawyers feel intellectually stimulated by their work, only 40% would recommend a legal career to another. Why so low? One possible explanation offered in the ABA Journal piece is that many students end up in law school "without really wanting to be a lawyer." Do you agree?--Counseller
Thursday, October 11, 2007
Click here to listen to NPR's April interview with David Cole (Georgetown Law School) about his decision to banish laptops from the classroom. This week NPR followed up on this issue by interviewing Daniel Coyne (Chicago-Kent College of Law) about his treatment of laptops in the classroom. Click here to listen. Do laptops cause problems in the law school classroom? If so, what are the problems and what, if anything, should law professors do about them? --Counseller
Wednesday, October 10, 2007
We posted here and here about Nebraska Senator Ernie Chambers' lawsuit against God and about God's response. You can download the petition and a couple of the answers filed on God's behalf by clicking the link at the bottom of this post.--Counseller
Tuesday, October 9, 2007
Click the link at the bottom of this post to listen to an interview with Prof. Edward Harnett, the Richard J. Hughes Professor for Constitutional and Public Law and Service at Seton Hall University School of Law, about his article Against (Mere) Restyling, published in the Notre Dame Law Review last year. The article is timely because the restyling amendments take effect on December 1 unless Congress intervenes. It was Prof. Hartnett's article that helped convince us to oppose the amendments so we were especially pleased he agreed to talk to us. Many thanks to Prof. Hartnett for a great interview. The abstract for Against (Mere) Restyling is below.--Counseller
The Federal Rules of Civil Procedure have been completely rewritten. Unless the Supreme Court balks or the Congress intervenes, the bench and bar will be using the new restyled version of the Federal Rules of Civil Procedure in a little more than a year.
As have other procedural reformers before them, the restylists seek to make procedural rules simpler, clearer, more accessible, and easier to understand. Yet the restylists have set themselves a goal that is at once insufficiently ambitious and overly difficult. Unlike prior reformers, they do not seek to create a better procedure. Unlike those who brought us the original Federal Rules of Civil Procedure, they do not seek to supersede reexisting statutory procedures. To the contrary, the restylists attempt to completely rewrite the Federal Rules of Civil Procedure while leaving the law of procedure the same as it was before their reform.
This task is nearly impossible, as this Essay illustrates with some examples drawn from the changes made to the proposed restyled rules in response to public comment. In addition, the goal of preserving existing meaning is at war with the goal of clarity and simplicity. Rather than confront this dilemma head on, the proposed restyled rules add an additional layer of ambiguity, and do so in a way that brings to the fore the interpretive battle that rages between those who follow the plain meaning of the text and those who seek the lawmakers' purpose in legislative history. Finally, although the restylists have attempted to prevent their handiwork from superseding statutory procedures, their method of doing so rests on a view of the supersession provision of the Rules Enabling Act that is almost certainly wrong.
For these reasons, the proposed restyled Federal Rules of Civil Procedure should not be approved.
****Update: You can find all of our restyling posts summarized here.
Friday, October 5, 2007
We posted here about Nebraska State Senator Ernie Chambers' lawsuit against God for, inter alia, "terroristic threats of grave harm to innumerable persons." The Douglas County District Court in Nebraska was kind enough to send us the record in this case. After reviewing the pleadings, I've learned that God is represented by at least five different attorneys, each of whom filed a separate answer on God's behalf. The five attorneys have different views of their Client's nature. One attorney believes his Client is a vengeful god, as demonstrated by the answer he filed to Sen. Chambers' "terroristic threats" claim.
"God does not issue terroristic threats, but He will visit an appropriate punishment upon the blasphemous Complainant by seeing that he is removed from office next year."
The first answer filed on God's behalf reflects a more loving God.
Defendant admits that he knows Plaintiff; that He created Plaintiff; and that He is not dissappointed in Plaintiff . . . [and] while Defendant is always saddened by the pain His children endure, He reminds the Court that their ability to endure is what made and continues to make humankind great. Life struggled forth from the primordial ooze, and it struggles forth to this day. It would be unfair to state how or why, but the greatest years of humankind still lie in the future.
As regular readers of the blog know, God contacted me about representing him in this case, but things fell apart after I quoted my fee. Based on that brief contact, I can't say for sure which of God's five lawyers knows their Client best. I can say that "life-long self-indulgence without fear or risk of eternal damnation" was more than He was willing to pay for representation in this matter.--Counseller