Civil Procedure & Federal Courts Blog

“Stark Contrasts Between McCain and Obama in Judicial Wars”

This piece by Neil A. Lewis was in yesterday’s New York Times.  Lewis makes the point that, in McCain’s 22 years in the Senate, he has not been a major player in the judicial wars.  He has supported recent judicial nominees, including Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, and will likely select similar conservative nominees if he is elected.  On the other hand, Obama is a lawyer and has a substantial interest in the courts and the law.  He has opposed the recent judicial nominees and when asked what he would look for in a Supreme Court justice, he held up a picture of former Chief Justice Earl Warren.  To read the entire article, click here.

Personal Jurisdiction in the Clemens case

Yesterday's Houston Chronicle discusses defendant's (McNamee's) territorial-jurisdiction challenge in the Roger Clemens defamation case.  Arguing that McNamee purposefully directed his tortious conduct at a known Texas resident, Clemens's lawyer was quoted as saying "It's only fair McNamee should have to defend himself in Texas.  . . . His conduct intentionally harmed Roger Clemens in this state and he should face a Texas jury."  Seems like a fairly straightforward Calder analysis, at least by description of the lawyer who needs it to be.

--RR

The Significance of Philip Morris v. Williams

In the most recent issue of the NYU Survey of American Law, Professor Michael Allen, Stetson University College of Law, published Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance of Philip Morris v. Williams.  Part I of the article discusses the ways in which the Court limited punitive damage awards prior to Philip Morris.  Part II analyzes the Philip Morris decision itself in which the Court held that a jury award of punitive damages may not punish a defendant for conduct directed at non-parties.  Part III addresses how Philip Morris will affect punitive damages as a remedial device, its impact on state regulation of punitive damages, and its impact on juries.  Part IV concludes the article by discussing what constitutional issues may arise in the near future.  A full-version of the article may be read here.--Counseller/nm

New Redish article on construing The Rules Enabling Act

Prof. Martin Redish and Dennis Murasko recently posted The Rules Enabling Act and the Procedural-Substantive Tension:  A Lesson in Statutory Interpretation.  The article will appear in Volume 93 of the Minnesota Law Review, and its abstract follows:

The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation. The Act, moreover, prohibits the Court from promulgating rules affecting litigants' substantive rights. Courts and commentators have struggled for more than seven decades since the Act's passage to define the boundaries of what rules the Court can and cannot promulgate.

In this Article, we undertake to explain the lack of success in defining the contours of rulemaking under the Act and at the same time to glean from our analysis of the Act an important lesson in statutory interpretation. We offer two explanations, operating simultaneously, for why a definitive interpretation of the Act has eluded courts and scholars. First, and perhaps most importantly, the Act's sparse language is arguably susceptible to three alternative and textually plausible constructions. Second, previous constructions of the Act did not pay sufficient attention to statutory interpretation theories in applying one theory or another in interpreting the Act. We conclude that a proper understanding of the theory of statutory interpretation dictates adoption of only one of these constructions - what can be called the incidental effects approach. Under this interpretive model, identified most closely with the Supreme Court's often criticized decision in Burlington Northern, the Court is allowed to promulgate rules that do impact substantive rights, but do so only incidentally - in other words, when the primary goal of the rule is to regulate procedure.

We defend this interpretation of the Act by employing a theory of statutory interpretation that directs the interpreter to construe ambiguous text in light of objectively determined background purposes forming a foundation for a particular legislation. Drawing on the pioneering work of Professor Stephen Burbank, we recognize two purposes undergirding the passage of the Enabling Act. Our interpretation promotes both purposes, not elevates one at the expense of the other. In fact, this is where commentators (Professor Burbank among them) have gone astray in their suggested interpretations - they used statutory interpretation theories unmoored from the twin purposes of the Act.

In the end, the lesson for statutory interpretation theory largely parallels the lesson to be learned in construing the Rules Enabling Act. In both, when dealing with ambiguous legislation, it is common sense and an attempt to translate underlying purpose, objectively determined, into legal reality, rather than narrow, shortsighted adherence to textual literalism or legislative history, that more effectively further the goals of representative democracy.

--RR

Case Watch: In Re: Volkswagen of America

Yesterday, the Fifth Circuit heard en banc oral argument in In Re: Volkswagen of America.    Of interest in the case is this amicus brief, signed by 14 law professors, filed in support of respondents.  The issue concerns the proper transfer standard under 28 U.S.C. s1404, and Counsel of Record for the amicus is Professor Lonny S. Hoffman from the University of Houston. This link takes you to all the briefs.  --RR

Update:  Today's Texas Lawyer contains this writeup on the case (Hat Tip to Lonny Hoffman).

Katrina Still Making Waves

I wish I had brought this case to your attention a bit sooner (better late than never, I suppose), but the Fifth Circuit issued an opinion last month you might want to take a look at.  In Louisiana v. AAA Insurance, the court addressed whether a state, as one of the plaintiffs in a class action suit, can invoke Sovereign Immunity to bar removal to federal court. In this case, the State of Louisiana, along with many citizens filed suit against state insurance companies who failed to pay claims following Hurricane Katrina. The insurance companies removed the case to federal court. Louisiana argued that since it filed suit in state court under state law, the case should be remanded to state court even though it was only one member of the class. Ultimately, the Court held that any immunity the State may have cannot be conferred by the State upon the prosecution of suits by private citizens.  The Fifth Circuit affirmed the district court's denial of the plaintiff's motion to remand.--Counseller/eh 

My State's High Court is Better Than Yours!

Profs Choi, Gulati, and Posner have posted on SSRN their new article, Which States Have the Best (and Worst) High Courts?, which ranks the high courts of the fifty states based on their performance between 1998-2000. Criteria used to evaluate the courts include opinion quality, independence, and productivity. Here is a link to a page that includes an abstract of the article and a link to download the full text article.--Counseller/md

SCOTUS Watch: May 22 Conference (Updated)

On Thursday, May 22, 2008, the Supreme Court will hold a conference to consider petitions in a number of cases, including several of interest to CivPro folks. 

T-Mobile USA, Inc., et al. v. Laster, et al., 07-976:  Whether, under the Federal Arbitration Act, federal courts may refuse to enforce class-action bans in consumer contract arbitration provisions on grounds they are unconscionable under state law.

Rosenruist-Gestao E Servicos LDA v. Virginia Enterprise Limited, 07-1214:  Whether, under 35 U.S.C. 24, a trial judge may subpoena foreign witnesses for deposition in the United States based on their filing of an application with the Patent and Trademark office.

Philip Morris USA, Inc. v. Williams, 07-1216: Whether the Supreme Court of Oregon, on remand from the Court’s 2007 decision on the constitutionality of a $79.5 million punitive damages award based on harms done to non-named plaintiffs, improperly asserted a state law procedural bar having the effect of precluding Phillip Morris from asserting a constitutional claim.

Republic of Iraq v. Beaty, 07-1090, whether U.S. courts have jurisdiction over Iraq in cases involving alleged misdeeds during the the Hussein regime.

A complete list of the cases to be considered at the conference, along with links to the opinions below and parties’ briefs for all cases, is available on SCOTUS Blog.--Counseller/nm

D.C. Cir: U.S. Currency Discriminates Against Blind

This morning the D.C. Circuit issued its opinion in The American Council of the Blind v. Paulson in which it held that U.S. currency discriminates against the visually impaired in violation of the Rehabilitation Act, 29 U.S.C. s 794.  Here is the full opinion.  CNN has a short piece on the opinion here and Time has one here.  Here's the court's introduction.

The Secretary of the Treasury appeals the declaratory judgment that the Treasury Department’s failure to design and issue paper currency that is readily distinguishable to the visually impaired violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The Secretary contends that various coping mechanisms that enable the visually impaired to use U.S. currency, as well as the availability of portable currency readers to identify denominations and credit cards as an alternative to cash, demonstrate that there is no denial of meaningful access to currency. Consequently, the Secretary maintains that the district court erred in finding to the contrary and should not have reached the question of whether identified accommodations would impose an undue burden.  Alternatively, assuming a denial of meaningful access, the Secretary contends that the district court erred in validating identified accommodations in view of their added costs and the burden on the public.

As we all know, the Treasury has been issuing redesigned currency for the last several years.  The plaintiff's point seems to be that, if the Treasury is going to redesign the currency, it should do so in a way that allows the visually impaired to distinguish the denominations.  Here are some interesting facts the court cites about other foreign currencies. 

Of the 171 authorities issuing currency identified by the1995 NRC Report, only the United States prints bills that are identical in size and color in all denominations. Of the issuing authorities, 128 use paper currency that varies in size between some denominations, 24 use large numerals, 167 use different color schemes for each denomination, and 23 incorporate tactile features. In total, more than seventy-eight percent (78%) of authorities surveyed issued paper currency in which at least some denominations could be identified by those with no vision, either by means of tactile features or size variations. Since 1995, Canada has redesigned its currency to include embossed dots that vary by denomination, and the Euro, introduced in 2002, has incorporated a foil feature perceptible to touch.

The D.C. Court of Appeals remanded the case for a determination of whether the Plaintiffs are entitled to injunctive relief.  We don't yet know what the final result of this litigation will be, but we know what the plaintiffs want.  The district court opinion makes clear that the plaintiffs demand, inter alia, 1) a permanent injunction prohibiting the Treasury from continuing to manufacture bank notes in the present manner; 2) a permanent injunction requiring bank notes to be designed with features making them accessible to the visually impaired; and 3) a detailed corrective action plan submitted by the Treasury to the court for approval.  Independent of this litigation, the Treasury plans to redesign currency every seven to ten years.  At a minimum, it seems reasonable on the next go-round to design the currency in such a way that allows the visually impaired to distinguish the various denominations.--Counseller

Inquiry into the Merits at the Class Certification Stage

You might want to give In re New Motor Vehicles Canadian Export Antitrust Litigation a read. The First Circuit discusses the degree of inquiry into the merits that is required at the class certification stage. The Supreme Court has yet to rule on the issue and there is currently a split between the circuits. Here, the First Circuit held that when a Rule 23 requirement relies on a novel or complex theory as to injury, the district court must engage in a searching inquiry into the viability of that theory and the existence of the facts necessary for the theory to succeed. The Federal Civil Practice Bulletin has pulled some of the more significant passages from the case, but if you want to read the entire opinion here is a link. --Counseller/md

Solicitor General Urges Court to Refuse Review of Collateral Order Doctrine Case

On Friday, the United States Solicitor General urged the court to refuse to hear Exxon Mobil, et al., v. Doe, et al. (07-81), a lawsuit filed by Indonesians who claim guards at an Exxon Mobil natural gas plant abused them.  The appeal seeks a determination of “whether a district court’s denial of a private defendant’s motion to dismiss state-law tort claims on the ground that the litigation will interfere with the Nation’s foreign relations is immediately appealable under the collateral order doctrine.”  According to Sol. Gen. Paul Clement, the D.C. Circuit Court went too far in limiting the types of cases in which an immediate appeal may be pursued.

SCOTUS Blog has more on this case, along with a link to the government’s amicus brief, here.--Counseller/nm 

The Anonymous Justice Souter

Justice Souter has a reputation of avoiding the spotlight in an age when justices write autobiographies, go on book tours, and give interviews. Recently Bloomberg.com posted an interesting piece, Souter Protects Anonymity as Court Colleagues Seek Spotlight. Apparently, Justice Souter can walk out the front door of the Supreme Court Building following a session without being identified. This article also has a great discussion of Justice Souter’s demeanor both on and away from the Court, including some enlightening comments by some of his former law clerks.--Counseller/md

Who Would the Presidential Candidates Bring into the Justice Department?

With the presidential election less than six months away, each of the three presidential candidates is considering who they would bring into the Justice Department.  Last week, Senator John McCain released a list of 48 legal advisers and has been trying to rally conservatives by talking about the type of judges he would appoint.  If one of the Democratic candidates wins the presidency, the Justice Department may look a lot like it did when Bill Clinton was president.  The chief legal advisors for both Senators Obama and Clinton were tops officials in the Justice Department during the Clinton administration.  If you subscribe to Legal Times, you can view Pedro Ruz Guitierrez’s article, What the Candidates Have Planned for the Justice Department, here.  If not, a snapshot of each candidate’s key issues is available here.--Counseller/nm

No Quorum

On Monday, the Supreme Court was forced under 28 U.S.C. § 1 to affirm the Second Circuit’s decision in American Isuzu Motors, Inc.v. Ntsebeza and allow South African citizens to proceed in a lawsuit against American and foreign corporations.  The corporations asked the Court to reverse the Second’s Circuits decision that the suit could proceed under the Alien Tort Statute.  However, Justices Roberts, Breyer, Alito, and Kennedy recused themselves, depriving the Court of the required six-justice quorum.  For more on this issue, click here to see Tony Mauro’s piece in the Legal Times, High Court Allows Apartheid Case to Proceed.—Counseller/nc

Claim Preclusion and the Contract Disputes Act of 1978

You may have noticed the case of Phillips/May Corp. v. United States thanks to the folks over at the Appellate Review Blog, but, if not, here is a link to the decision out of the Federal Circuit on whether the Contract Disputes Act of 1978 ("CDA") alters the normal res judicata prohibition on claim splitting.  The court held "Congress definitively rejected the idea that the CDA was abrogating the doctrine of claim preclusion and permitting the splitting of claims based on the same set of transactional facts."--Counseller/jm 

Making His Case?

So why did Justice Scalia co-author and promote a book on legal persuasion?  Here Dahlia Lithwick discusses on Slate.com (with a different version in this week’s Newsweek) what she sees as the possible motivation for Justice Scalia’s book and the subsequent media tour.--Counseller/jm

Judicial Hellholes, Lawsuit Climates, and Bad Social Science ...

Prof. Elizabeth Thornburg recently posted her article, Judicial Hellholes, Lawsuit Climates, and Bad Social Sciences:  Lessons from West Virginia on SSRN.  The abstract of the article, which has been accepted for publication in Vol. 110 of the West Virginia Law Review, appears below and should interest many of our readers:

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber of Commerce has a spin-off organization,the Institute for Legal Reform, that issues an annual report on each state's lawsuit climate, ranking states from 1 to 50 on their friendliness to business, based on a survey of general counsel of very large businesses and their outside lawyers. Since no state wants to be found near the bottom of the list, the ILR report also creates pressure for legal change.

This essay uses West Virginia as a test case to examine the methodology of the Hellhole and Lawsuit Climate reports. It provides context by briefly tracing the earlier campaigns of tort reform advocates, highlighting some of the ways in which they have played fast and loose with numbers and stories. The essay describes the national Hellhole and Lawsuit Climate campaigns, and then focuses on ATRA's treatment of West Virginia in order to demonstrate the techniques of the hellhole reports. For example, the reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics.

Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers.

--RR

Making Your Case

We posted here about Justice Scalia's and Brian A. Garner's new book, Making Your Case:  the Art of Persuading Judges.  Justice Scalia's been all over the place promoting the book, including on 60 Minutes, as we mentioned here.  Now, the ABA Journal has an interview here with Scalia and Garner about the book.  Interesting reading for everyone and essential for those who argue (or would like to) in front of the Supreme Court--Counseller

Alien Corporations

For purposes of 28 U.S.C. s1332, what is the citizenship of a corporation that is incorporated domestically and that has its principal place of business abroad?  Yesterday, the Seventh Circuit correctly concluded that such a corporation is only a citizen of its state of incorporation; a foreign principal place of business is  irrelevant.  The Seventh Circuit's conclusion is consistent with the one I reached in Consistent Deeming:  A Cohesive Construction of 28 U.S.C. s1332 in Cases Involving International Corporations and Permanent-Resident Aliens.

--RR

MDL Transfer After Section 1404 Denial

If a trial court denies a party's section 1404 venue-transfer motion, should that ruling preclude the Judicial MDL panel from transferring under section 1407?  Beck and Herrmann discussed the issue Wednesday. --RR