Civil Procedure & Federal Courts Blog

Call for Proposals

The AALS Section on Academic Support will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods.  Many of these methods  have their roots in traditional academic support tenets of varying lesson plans to reach different learning styles, providing feedback throughout the semester, assessing students in creative ways, engaging students both in and out of the classroom, and encouraging students to take responsibility for their own learning.   The committee requests proposals that demonstrate modern classroom and teaching techniques including but not limited to: active learning activities, teaching assessment procedures, exam drafting, skills development in doctrinal courses, and innovative lesson plans.  Show us what's new and different in legal education in the 21st century!

The Program Committee will give preference to presentations designed to engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed.  In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters.  If you do not have a proposal to submit, but are interested in participating in a presentation, please contact Emily Randon (see below), as assistance with the overall workshop is always welcome.

Based on participant numbers for the last several years, we anticipate over 100 people attending the program.  To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.

Proposals must include the following information:
1.  A title for your presentation
2.  A brief description of the objectives or outcomes of your presentation.
3.  A brief description of how your presentation will support your stated objectives or outcomes.
4.  The amount of time allocated for your presentation and for the interactive exercise.  No single presenter should exceed 45 minutes in total time allowed.  Presentations as short as 15 minutes will be acceptable.
5.  A detailed description of how the presentation will be interactive.
6.  Whether you plan to distribute handouts, use PowerPoint, or employ other technology.
7.  A list of the conferences at which you have presented within the last three years, such as AALS, national or regional ASP or writing conferences, or other academic conferences.  (The committee is interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.) 8.  Your school affiliation, title, courses taught, and contact information (include email address and telephone number).
9.  Any articles or books that you have published describing the lesson you will be demonstrating.

Send proposals by Monday, March 9, 2009 to Prof. Emily Randon, University of California, Davis School of Law, at the email address of [email protected]  If you have questions, feel free to contact Emily Randon directly at 530-752-3434.

If you know of colleagues who are true innovators in techniques that achieve the objectives of the academic support community, please encourage them to submit proposals!

We look forward to seeing you in New Orleans!

The ASP Section Program Committee:
Emily Randon, Chair
Robin Boyle Laisure
Hillary Burgess
Barbara McFarland
Kathy Garcia
ASP Section Chair:  Pavel Wonsowicz

Federal Courts, Not Federal Tribunals

Prof. Lou Mulligan recently posted Federal Courts, Not Federal Tribunals.  Also check out his previous article, which we featured here.  Lou is a very bright scholar, and his writing is always accessible.    --RR

"Against Settlement" Symposium

Prof. Howard Erichson and the Fordham Law Review  have put together quite a symposium to discuss Owen Fiss's provocative arguments about ADR and settlement of 25 years ago.  The speakers include Owen Fiss, Sam Issacharoff, Pam Karlan, Susan Sturm, Jack Weinstein, and Kenneth Feinberg.  Click here for more information. --RR

Entry-Level Hiring Report

Larry Solum is compiling this year's Entry Level Hiring Report.  Click here to submit your school's information via Survey Monkey.  --RR

Horizontal Federalism

Minnesota Prof. Allan Erbsen recently posted an updated version of Horizontal Federalism on SSRN.  It's definitely worth a read.  The abstract follows:

This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their shared authority. Constitutional law currently addresses these limits in a piecemeal fashion through doctrines regulating such diverse subjects as personal jurisdiction, restraints on interstate commerce, choice of law, federal subject-matter jurisdiction, interstate compacts, federal common law, tax apportionment, interjurisdictional preclusion, and discrimination based on state citizenship. This Article moves beyond the piecemeal approach by identifying facets of horizontal federalism that transcend doctrinal categories. Considering these common features without the distraction of historically contingent doctrinal labels can help reconfigure jurisprudence that is often unprincipled, unsatisfying, and unstable.

The Article proceeds in four steps. First, it defines horizontal federalism, explains how horizontal and vertical federalism overlap, and explores structural features of the Constitution that complicate efforts to define limits on state authority. Second, it groups seemingly unrelated examples of state action into eight categories. This typology highlights thematic connections between forms of state action that prevailing doctrine often treats separately. Third, the Article analyzes the Constitution holistically to identify the clauses that regulate horizontal federalism and consider how these fragments fit together to resolve, deter, or mitigate problems arising from the categories of state action noted above. This approach identifies five methods that the Constitution uses to regulate interstate activity.

Finally, the Article develops a model for analyzing jurisprudence implementing the Constitution's methods for coping with horizontal federalism. This model reveals that horizontal federalism doctrines rely on a varying combination of four concepts: capacity (the scope of a state's sovereign authority), constraint (rights or immunities that limit state power), centralization (express or implied federal preemption or authorization of state action), and comity (the need for states to respect each other even when capacity exists free from constraint or central control). Identifying these concepts exposes at least three sources of incoherence or instability within horizontal federalism jurisprudence. First, individual judicial decisions are often imprecise about which concept controls, leading to a lack of fit between reasoning and outcomes. Second, the role of the four concepts can vacillate within a line of precedent over time, leading to confusion about a doctrine's rationale and proper application. Finally, distinct lines of precedent can deploy the four concepts differently despite the lack of meaningful distinctions between the doctrines' underlying purposes or functions. Parsing and critiquing capacity, constraint, centralization, and comity arguments can therefore affect the implementation, justification, and coordination of horizontal federalism doctrines. The model thus provides a foundation for future scholarship reevaluating vast swaths of constantly evolving law.

--RR

Prof. Campbell posts article on service of process

Faulkner Prof. Charles Campbell recently posted No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.  The abstract follows:

Mexico acceded to the Hague Service Convention in 1999, with entry into force in 2000. In its instrument of accession, Mexico designated the Directorate-General of Legal Affairs of its Ministry of Foreign Affairs as its Central Authority to receive and forward requests for service of judicial and extrajudicial documents from other contracting States, and objected to alternative methods of serving documents under Articles 8 and 10 of the Convention. Unfortunately, a mistake occurred in the English courtesy translation of Mexico's Article 10 declaration, making it appear that Mexico's opposition applies only to the alternative methods of service of process under Article 10 when attempted through diplomatic or consular agents. The original Spanish declaration relating to Article 10 contains no such limitation. It instead expresses across-the-board opposition to all of the alternative methods of service provided in Article 10. When a contracting State objects to all of the alternative methods of service in Articles 8 and 10 of the Convention, service through the Central Authority is in effect the exclusive means. Accordingly, United States courts are bound to refrain from alternative methods of service of process on parties in Mexico and must use its Central Authority.

The mistake in the English translation of Mexico's opposition to alternative methods of service under Article 10 has led state and federal courts in the United States to conclude that al-ternative forms of service are appropriate in Mexico under the Hague Service Convention. The U.S. Department of State circular on service of process likewise suggests that service of process by international registered mail on parties in Mexico is appropriate, at least if a party does not anticipate enforcing the judgment in Mexico. This article briefly points out the error in the Eng-lish translation of Mexico's Article 10 declaration, explains how the mistake is misleading courts in the United States, and concludes that service of process in U.S. litigation on parties in Mexico pursuant to the Hague Service Convention should always proceed through Mexico's Central Au-thority in accordance with Articles 3 through 7 of the Convention.

E-Pitfalls: Ethics and E-Discovery

Prof. Debra Lyn Bassett recently posted E-Pitfalls:  Ethics and E-Discovery.  Click the title to download the article.  The abstract follows:

Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated. In particular, this Article argues that despite the seeming distinctiveness of issues concerning electronically stored information, well-established ethical rules apply to these issues in very familiar patterns and approaches. After examining the interplay between legal ethics and the practice of law generally, the Article analyzes the recent Qualcomm decision and offers some insights into both the reasons behind the Qualcomm court's insistence on employing ethical precepts in the e-discovery context, and why the use of ethical principles in discovery is likely to continue. Specifically, two provisions within Federal Rule 26(g) invite the continued use of ethical principles: (1) the limited nature of Rule 26(g)'s authorization of sanctions, and (2) the "reasonable inquiry" required by Rule 26(g) before signing a disclosure, discovery request, or response.

--RR

Supreme Court Reform

Today, at law.com, Marcia Coyle reports:  Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court. The article describes four proposals, ranging from regular biennial appointment of new justices to identifying justices who are no longer able to perform competently.  I suspect there is a special kind of inertia regarding the way the Supreme Court works.  While we all grew up legally watching the Court change/modify/grow the law, we did so while the Court operated against a set of background procedures regarding operation and composition:  Judicial Review must be; subject-matter jurisdiction must be challengable at any time; life tenure means life tenure; and so on.  --RR

11th Circuit Certifies Florida Long-Arm Question

In Internet Solutions Corporation v. Marshall, Defendant lived in Washington, where she owned and operated a consumer-watchdogish website.  She posted something about plaintiff, ISC.  ISC sued Defendant in federal court -- in Florida, where ISC had its principal place of business.   Florida's long-arm statute authorizes jurisdiction over a defendant who commits a tortious act "within Florida."  The 11th Circuit first noted that:

The Florida Supreme Court has yet to address whether the posting of information on an out-of-state website about a company with its principal place of business in Florida would meet the statutory requirements for long-arm jurisdiction.

It then certified the question:

Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a  nonresident with no other connections to Florida constitute commission of a tortious act within Florida for purposes of Fla. Stat. s48.193(1)(b)?

--RR

Distinguishing Certification from Abstention

Prof. Deborah J. Challener recently posted Distinguishing Certification from Abstention in Diversity Cases: Postponement versus Abdication of the Duty to Exercise Jurisdiction.  Click the title to download the article, which will appear in Volume 38 of the Rutgers Law Journal.   --RR

Restyling hits civil and criminal forms

The effort to re-write the federal rules in "plain English" has spread.  A working group at the Administrative Office of the U.S. Courts has put together 56 new, restyled forms, both civil and criminal.  You can find them here (though you may have to poke around to figure out which of the 126 are actually new).

--Counseller/jtf

Does Anyone Care About Class Actions?

The Houston Chronicle reported Monday that very few of the supposed-beneficiaries of a massive cosmetics class action knew or cared about the lawsuit.  The suit netted about $25 million for the lawyers involved, and, for the class members, what the reporter referred to as a "trick or treat" at shopping malls around the country.  This fanned the flames of the debate, discussed in the article, of whether there's any real purpose to these suits, other than to make lawyers rich.  On the other side of the debate, one law professor told reporters: “It doesn’t matter if the people involved didn’t know about the case. It ought to be about deterring misconduct by business.”  One thing was for certain: the consumers were happy to get free stuff. 

--Counseller/jtf

Ever Thought Civil Cases Take Too Long? So Does the IAALS

The Institute for the Advancement of the American Legal System has put together an extremely comprehensive study on the time consumed by civil cases in American federal district courts.  It purports to be concerned primarily with the discrepancy between the time certain types of cases take in one district court as opposed to another, why the discrepancy exists.  It also focuses on what can be done to remedy the unnecessary delay seen in some districts.  It begins with a series of findings, some of which seem rather obvious:

Finding #1: Cases in which: (1) a trial date is set early, (2) discovery issues are raised and
resolved within the set discovery period, and (3) dispositive motions are filed as early as possible
tend to be resolved more quickly than cases where these things do not occur.

Finding #2: About one-third of civil cases take more than a year to resolve.

Finding #3: Rule 16 scheduling conferences are held in less than half of all civil cases.

Finding #4: The time it takes a judge to rule on motions on disputed discovery, motions to
dismiss, and motions for summary judgment varies significantly across courts.

Finding #5: Motions to dismiss were frequently filed and granted, even before the Twombly
decision.

Finding #6: Holding a hearing is associated with faster times to ruling for motions on disputed
discovery, although the evidence is less clear with respect to dispositive motions.

Finding #7: Many cases settle shortly after a motion to dismiss or a motion for summary
judgment is denied.

Finding #8: About 90% of all motions to extend deadlines are granted in every court, but in
courts with faster average overall times, many fewer motions to extend deadlines are filed.

Finding #9: External reporting of case management data does appear to encourage courts to
rule more rapidly on certain motions than might otherwise be the case.

Finding #10: An attitude of efficiency, especially when embraced by both the bench and bar, can
contribute to lower disposition times.

The abstract describes it as:

This is an investigation into civil case processing in the United States District Courts. It broadly addresses two main issues: (1) the variation in the techniques, steps, and procedures that different judges and attorneys use to manage their civil cases, despite the existence of an (at least facially) uniform set of civil rules; and (2) the relationship between those techniques, steps, and procedures, and the amount of time it takes for cases to proceed from filing to disposition. Our objective is to explain how judges, attorneys and parties contribute to the overall length of a case through the procedures they adopt, tactics they use, and schedules to which they adhere.

Based on review of the dockets of nearly 7700 closed civil cases in eight federal district courts, the study examines statistical correlations between the overall time to disposition of a case and the presence and timing of typical events in the course of litigation (such as a Rule 16 conference, discovery disputes, and motion practice). It also sets out descriptive statistics concerning the use of scheduling conferences, discovery and dispositive motions, and extensions of time. The study concludes with a discussion of non-quantitative factors that may affect case processing, including local legal culture, public reporting of caseflow management data, and judicial leadership.

The entire article can be found here.

Congress and Standing

Professor Michael E. Solimine from the University of Cincinnati has posted a paper on SSRN that he contributed to a recent symposium on "Access to the Courts in the Roberts Era."  The article, Congress, Separation of Powers, and Standing, is forthcoming in Volume 59 of the Case Western Reserve Law Review.  This abstract follows:

Plaintiffs must satisfy certain standing requirements before they may bring a civil action in federal court. Typically a plaintiff must have been injured in particular way, the injury was caused by the defendant's conduct, and it is capable of being redressed by the relief granted by the court. This article, a contribution to a symposium on "Access to the Courts in the Roberts Era," revisits these requirements in light of (1) several cases decided in the early years of the Roberts Court, (2) the new members of the Court, and (3) the considerable and continuing scholarly debate over the role of Congress in statutorily providing for Congress.

Part II of the article briefly sets out the standing requirements. Part III addresses the views on standing of the most recent additions to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, before they joined the Court. Part IV addresses, in three sections, the standing decisions of the initial Terms of the Roberts Court. The first section of that part discusses and dismisses the utility of a purely originalist approach to determining standing. The second section discusses recent cases which have addressed the limitations separation of powers concerns place on standing sought by taxpayers, or by states as plaintiffs. The third section considers from various perspectives the role of Congress in providing for standing by statute, and the appropriate response of federal courts in applying those statutes. The article concludes in Part V by addressing the likely future of standing in the Roberts Court and in the Obama Presidency.

-Counseller/ps