Civil Procedure & Federal Courts Blog

Just in time for Halloween: "Something Judicious this Way Comes"

Michael J. Higdon (University of Tennessee College of Law) has posted "Something Judicious this Way Comes . . . The Use of Foreshadowing as a Persuasive Device in Judicial Narrative."

Abstract: 

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, I analyze the way in which judges craft their opinions so as to make them more palatable to a wide range of audience members: the litigants and attorneys involved in the case, higher appellate courts who might ultimately review the opinion, and, finally, the public in general. 

To do this, I focus specifically on the use of foreshadowing in legal opinions. Foreshadowing, as explained in my article, is not simply a literary device, but is an extremely persuasive technique given the way in which it appeals to how human beings think and process information. Indeed, foreshadowing implicates a number of psychological theories (priming theory, schema theory, and inoculation theory), each of which has a strong impact on persuasion. Furthermore, when we look at the general psychology behind human cognition as well as the role that subtlety (a hallmark of foreshadowing) plays in persuasion, it becomes clear why judges frequently employ foreshadowing when crafting their opinions.

After discussing the above psychological theories, my article then talks specifically about judicial narrative, offering discrete examples of different kinds of foreshadowing that judges have employed in notable judicial opinions. From the way in which judges phrase rules, to how they describe precedent cases, to how they even prepare us for a departure from existing law, judicial opinions offer rich examples of the intersection between psychology, narrative and persuasion.

~clf

Symposium Today: "Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz"

The 2009 Kansas Law Review symposium, Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz, is occurring today at the University of Kansas. Details are available here. Speakers include:

Elizabeth Chamblee Burch, Assistant Professor of Law, Florida State University College of Law: “Aggregation, Community, and the Line Between”

Howard M. Erichson, Professor of Law, Fordham University School of Law: “The Trouble with Defendants’ Insistence on Comprehensive Settlements”

Steven S. Gensler, Welcome D. and W. DeVier Pierson Professor of Law, University of Oklahoma College of Law: “The Other CAFA Effect: State-Court Class Actions after the Resettlement Plan”

Laura J. Hines, Professor of Law, University of Kansas School of Law: “The State of State Class Actions”

Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy, University of Texas School of Law: “Nine Lives: The Punitive Damage Class”

Tom Willging, Senior Researcher, Federal Judicial Center: “From Classes to Multidistrict Consolidations: Documenting Some Shifts in Aggregate Mass Tort Litigation after Ortiz”

Patrick Woolley, Beck, Redden & Secrest Professor, University of Texas School of Law: “The ALI and the Adequate Representation Requirement”

--A

Wyeth v. Levine Scholarship Roundup

Earlier this year the Supreme Court rejected federal preemption of tort claims for FDA regulated prescription drugs in Wyeth v. Levine, 129 S.Ct. 1187 (2009).  Since that time several commentators have weighed in on the decision.  After the jump, I have listed the recent scholarship addressing this new case.

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Webcast of Congressional Hearing on Ashcroft v. Iqbal Now Available

For those who were unable to attend or watch the live webcast of this week's congressional hearing on Ashcroft v. Iqbal (see our earlier posts here and here), the archived webcast is now available on the House Judiciary Committee's website. The witness list includes:

Arthur R. Miller
University Professor
New York University School of Law
New York, NY

Gregory Katsas
Former Assistant Attorney General, Civil Division
U.S. Department of Justice
Washington, DC

John Vail
Senior Litigation Counsel and Vice President
Center for Constitutional Litigation
Washington, DC

Debo P. Adegbile
Associate Director of Litigation
NAACP Legal Defense and Educational Fund
New York, NY

--A

Pepsi Facing $1.26 Billion Default Judgment in Wisconsin

Reuters is reporting: "A Wisconsin judge has ordered PepsiCo Inc to pay $1.26 billion to two men who said it stole their idea to sell purified water after a secretary mislaid a document alerting the world's No. 2 soft drink maker the lawsuit existed."

The case is pending in Jefferson County Circuit Court. Pepsi has moved to vacate the default judgment.

For additional coverage see here.

--A

What sort of lawyer does not love Pennoyer--especially this time, when it's put in a rhyme?

Elizabeth Chamblee Burch (Florida State University College of Law) has posted "There's a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss." 

Abstract:

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

~clf

Ramseyer on the relationship between universal health insurance and malpractice claims

J. Mark Ramseyer (Harvard Law School) has posted The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience.

Abstract:     
Japanese patients file relatively few medical malpractice claims. To date, scholars have tried to explain this phenomenon by identifying "faults" in the Japanese judicial system. They look in the wrong place. Largely, the faults they identify do not exist.

To explore the reasons behind Japanese malpractice claiming patterns, I instead begin by identifying all malpractice suits that generated a published district court opinion between 1995 and 2004. I then combine the resulting micro-level dataset with aggregate data published by the courts, and publicly available information on the Japanese health care industry.

I locate the explanation for the dearth in claims in the patterns of Japanese medical technology, and the reason for that technology in the national health insurance program. In order to contain the cost of its universal national health insurance plan, the Japanese government has radically suppressed the price it pays for the technologically most sophisticated procedures. Predictably as a result, Japanese doctors and hospitals have focused instead on more rudimentary - and more generously compensated - care. Yet, for reasons common to many societies, Japanese patients do not sue over rudimentary care. They sue the physicians who supply the most sophisticated care. Japanese patients bring relatively few malpractice suits because the government has (for reasons of cost) suppressed the volume of the services (namely, highly sophisticated services) that would otherwise generate the most malpractice claims.

RJE

Upcoming Supreme Court Argument: Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. (Monday 11/2)

The Supreme Court will come off Halloween weekend in Erie fashion with Monday's oral argument in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. (No. 08-1008), which considers whether New York's bar on class actions for certain statutory-damages claims (N.Y. C.P.L.R. 901(b)) precludes class certification in a federal court diversity action. Among other issues, the briefs address whether the Erie doctrine requires federal courts to follow state-law class-certification standards, and whether allowing FRCP 23 to displace New York law on class certification would run afoul of the Rules Enabling Act's command that the FRCPs "shall not abridge, enlarge or modify any substantive right." (28 U.S.C. 2072(b))

The Supreme Court docket is here, and the Second Circuit's decision is at 549 F.3d 137 (2008). For the parties' merits briefs (courtesy of the ABA), see...

• Brief for Petitioner (Plaintiff)

• Brief for Respondent (Defendant)

• Reply Brief for Petitioner (Plaintiff)

There are also two amicus briefs. One on the petitioner's side (by Public Justice), and one on the respondent's side (by The Partnership for New York City et al., including the US Chamber of Commerce).

For more coverage, see SCOTUSBlog's wiki on the case and this post on the Mass Tort Litigation Blog.

For my own thoughts on the applicability of state-law class-certification standards in federal court, see What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245 (2008). (The article also examines the potential relevance of state-law pleading and summary-judgment standards in federal court.)

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AALS 2010 "Hot Topics" Call for Proposals

The AALS has issued this call for proposals on hot topics for the 2010 Annual Meeting:

Time is being reserved in the Annual Meeting schedule for programs devoted to late-breaking legal issues or topics. Faculty members who are interested in organizing a panel on such an issue or topic will have the opportunity to submit proposals untilNovember 21, 2009 for the 2010 Annual Meeting in New Orleans, Louisiana. 
 
The purpose of this special "hot topics" slot is to provide a forum for a panel presentation on a timely and important issue of general interest that arises after the deadline for section and other programs. Hot topic program proposals should only be submitted by individuals and may not be submitted by sections or other organizations.
 
Each proposal should  contain the following information: (1) the title of the proposed program; (2) a brief description of the program; (3) a confirmed list of panel members; and (4) an explanation of why the proposed topic is "Hot"-i.e., why it could not have been the subject of other program proposals that had to be submitted by March 17, 2009. In addition, the proposed topic should not be one addressed elsewhere in the Annual Meeting Program.
 
Proposals will be evaluated by the Immediate Past President of the AALS, in consultation with the Executive Committee. If no program proposals are chosen for any particular year, the reserved slot will not otherwise be filled. Proposals may be emailed to [email protected]rg. If you have questions, please contact Elizabeth Patterson, AALS Deputy Director at [email protected]. 

~clf

Prof. Thomas on Iqbal, Twombly, and "The New Summary Judgment Motion"

Professor Suja Thomas (Illinois) has posted her essay The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly on SSRN. Here's the abstract:

Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.

--A

Congressional Hearing on Ashcroft v. Iqbal (UPDATE)

Here's a quick update on our earlier post about the congressional hearing, "Access to Justice Denied - Ashcroft v. Iqbal." The Judiciary Committee's website reflects a new location and now includes a list of witnesses, which includes:

Arthur R. Miller
University Professor
New York University School of Law
New York, NY

Gregory Katsas
Former Assistant Attorney General, Civil Division
U.S. Department of Justice
Washington, DC

John Vail
Senior Litigation Counsel and Vice President
Center for Constitutional Litigation
Washington, DC

Debo P. Adegbile
Associate Director of Litigation
NAACP Legal Defense and Educational Fund
New York, NY

The time and place is Tuesday 10/27 @ 2:30 P.M. in 2141 Rayburn House Office Building.

More information is available here. The current listing of the subcommittee's legislative calendar also contains a link for a video webcast.

--A

E-Marriage -- using jurisdictional creativity to achieve marriage equality across state lines

Adam Candeub and Mae Kuykendall have launched a novel project at Michigan State University, College of Law.  E-marriage would allow couples to combine the law of one jurisdiction with the physical location of another.  In other words, a same sex couple in California could marry in the location of their choice by using a remote "e" officiant from a state that allows same sex marriage, such as Massachusetts.

Procedure and fed courts professors will recognize many familiar issues including choice of law, internet jurisdiction issues, full faith and credit issues, and the increasingly blurry boundaries of physical territoriality.

The E-Marriage Project has a home on the MSU website.  The proposal is available as a paper on SSRN, and is further described in an MSU press release.

RJE

Congressional Hearing on Ashcroft v. Iqbal

Tomorrow's activities on Capitol Hill include a hearing entitled "Access to Justice Denied - Ashcroft v. Iqbal" before the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties (Tuesday 10/27 @ 2:30 P.M. in 2237 Rayburn House Office Building).

More information is available here. The current listing of the subcommittee's legislative calendar also contains a link for a video webcast.

--A

California provides free representation in certain civil cases

California has a new program to fund public interest lawyers to provide free representation to all indigent civil litigants involved in certain types of cases, such as home foreclosures, domestic violence cases, cases alleging predatory lending practices and others.  The pilot program, which lasts through 2017, will be paid for by a $10 increase in court fees.  

The program is designed to address inequities that might result when litigants represent themselves in cases involving important family law and social justice issues.  With this program, California appears to provide free representation in the broadest array of cases of any state so far.  The program has been praised for making legal services available to indigent people facing serious legal problems, but it has been criticized as diverting funds from other important social justice programs, such as improved law enforcement and day care programs.

The Los Angeles Times provides more coverage about this program here.

~clf

Generalist judges and antitrust law

Michael R. Baye (Indiana University Bloomington - Department of Business Economics & Public Policy) and Joshua D. Wright (George Mason University School of Law) have posted Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals on SSRN.

This piece is interesting because it looks at the problem of generalist judges from a slightly different angle.  Instead of assessing the competence of generalist judges to adjudicate cases in particular areas of law, it addresses to ability of judges to rule in cases where complex economics plays a role in the outcome.

Abstract:     
Modern antitrust litigation sometimes involves complex expert economic and econometric analysis. While this boom in the demand for economic analysis and expert testimony has clearly improved the welfare of economists - and schools offering basic economic training to judges - the law and economics literature is silent on the empirical effects of economic complexity or judges' economic training on decision-making in antitrust litigation. We use a unique data set on antitrust litigation in federal district and administrative courts during 1996-2006 to examine whether economic complexity impacts decisions in antitrust cases, and thereby provide a novel test of the frequently asserted hypothesis that antitrust analysis has become too complex for generalist judges. We also examine the impact of one institutional response to economic complexity: basic economic training by judges. We find that decisions involving the evaluation of complex economic evidence are significantly more likely to be appealed, and decisions of judges trained in basic economics are significantly less likely to be appealed than are decisions by their untrained counterparts. Our results are robust to a variety of controls, including the type of case, the appellate circuit in which the case is litigated, level of judicial experience with antitrust claims, judicial quality, and the political party of the judge. Our tentative conclusion, based on a revealed preference argument that views a party's appeal decision as an indication that the initial court got the economics wrong, is that there is support for the hypothesis that some antitrust cases are too complicated for generalist judges.

RJE

Supreme Court of Canada limits availability of class actions

The Supreme Court of Canada recently held that a class action was inappropriate in a case challenging a municipal tax assessment.  Commentators are speculating about how much the decision will impact the future availability of class actions in Canada because the court's opinion reasoned that class actions are inappropriate in matters where summary disposition is appropriate. 

James Morton, past president of the Ontario Bar Association, worries that "a whole host of matters which otherwise might fall under class actions may be excluded. The one that really strikes me is small claims court, where many of the cases in class actions are really too small to pursue otherwise but often are not terribly complicated matters. Perhaps the implications of the ruling are broader than the SCC immediately considered.”

The Lawyers Weekly provides a detailed analysis of the case and its potential impact on class actions in Canada here.

~clf

Australian Arbitration Rules

Simon Greenberg, Luke R. Nottage, and Romesh Weeramantry have posted The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited to SSRN.

Abstract:     
A decade ago, leading arbitration institutions and practitioners responded to growing concerns about burgeoning costs and delays in international commercial arbitration ("ICA") partly through some considerable changes to Arbitration Rules. Nowadays, however, disquiet has re-emerged especially about costs. Some point to parallels with civil procedure reforms in various national court systems since the 1990s. Those may have accelerated processes, but front-loading costs does not necessarily reduce them significantly.

Arbitration institutions are again responding to similar concerns about ICA. Some have published new Expedited Arbitration Rules, Mediation Rules, or encouraged renewed debate about more controversial measures to minimise costs such as Arb-Med (arbitrators encouraging settlement). Some institutions (like the ICC) have also instituted new rounds of reforms to their generic Arbitration Rules. Sometimes, Rule changes have followed amendments to arbitration legislation in the relevant jurisdiction (as in Japan). The Australian Centre for International Commercial Arbitration ("ACICA") also unveiled Arbitration Rules in 2005, and then Expedited Arbitration Rules in 2008. All these recent developments are occurring as UNCITRAL proceeds with revisions to its 1976 Arbitration Rules, designed initially for ad hoc arbitrations but influential also among many arbitration institutions.

It is therefore useful for the broader development of ICA to make more widely accessible this updated overview of the 2005 ACICA Arbitration Rules, comparing developments in many major arbitral institutions world-wide. The paper is particularly timely because the ACICA Rules will be used by hundreds of mock arbitrators and advocates in the 17th Vis Moot, to be held in Vienna and Hong Kong around March 2010. This event has become one of the most important in the ICA world, training not only a new generation of arbitration experts but also exposing more established experts to new developments and ideas. Both aspects are essential to the vitality of ICA and its perennial quest for an optimal balance between efficiency and procedural justice.

RJE

Are contract lawyers being asked to pursue quantity over quality in reviewing documents?

The ABA Journal reports here about increasing pressure on contract attorneys to review discovery documents at a faster pace.  A contract lawyer reports having received an e-mail instructing the lawyer to "pick up the pace," and specifying that for the $23 per hour wage being paid, the expectation was that the lawyer review about 80 documents per hour.  That was about double the pace at which the lawyer had been reviewing documents. 

This e-mail was originally reported on the Temporary Attorney blog. Many of the commenters to the Temporary Attorney post note similar pressure and frustration when doing document review work. For example, one commenter noted that, often, directives regarding quickening the pace of document review do not take into account any factors regarding the nature of the particular documents being reviewed, such as the length, complexity, or number of attachments. The post has generated discussion on Legal Blog Watch about whether such a fast pace undermines quality in document review.  Legal Blog Watch states:

Having worked on some massive document reviews myself, I agree that it is unreasonable to believe that reviewers will be able to thoughtfully review documents over any sustained period at those rates. When the documents the attorneys are reviewing become lengthy or complex, and the attorneys simply are not capable of reviewing and coding each one in a minute or so, mandates like the one in the e-mail above force a choice: get fired or perform a woefully deficient review. 

Other contract attorneys have made similar complaints about the work load and work conditions they face when reviewing documents. Last summer, Above the Law blog reported here about a contract lawyer's blog which describes some bitter observations about working as a contract attorney.

~clf

Ninth Circuit decision deepens circuit split on the process for establishing co-defendants' unanimous joinder in removal

Earlier this month the Ninth Circuit decided Proctor v. Vishay Intertechnology Inc. (No. 07-16527), 2009 WL 3260535, 2009 U.S. App. LEXIS 22254. The opinion addresses the substantive requirements for SLUSA removability as well as the timeliness of removal when the basis for SLUSA-removal arose only after the state-court complaint was amended. The Ninth Circuit also took sides in a circuit split over the process for demonstrating that all defendants join in the removal, concluding: "[A] notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient."

Here's the Ninth Circuit's full analysis on the issue:

The Sixth Circuit requires only that "at least one attorney of record" sign the notice and certify that the remaining defendants consent to removal; it does not insist that each defendant submit written notice of such consent. In contrast, the Fifth, Seventh, and Eighth Circuits have adopted the more demanding requirement that each co-defendant must submit a timely, written notice of consent to joinder.

We adopt the Sixth Circuit’s position as fully sufficient to implement the unanimous joinder rule. The so-called "rule of unanimity," announced by the Supreme Court in Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900), as an interpretation of a predecessor removal statute, merely says that "all the defendants must join in the application" for removal. Chicago does not specify how defendants must join in removal. Nor does any federal rule or statute specifically prescribe a particular manner in which codefendants' joinder must be expressed. In the absence of any rule governing joinder in removal, we turn to the general principles that govern procedures for removal and for attorney representations to district courts generally. Under 28 U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action" must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure." Rule 11, in turn, provides that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record," Fed. R. Civ. P. 11(a), and that "[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney . . . certifies that . . . the factual contentions [therein] have evidentiary support . . . ." Id. 11(b).

Applying these general principles, we conclude that the filing of a notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient. Ernst & Young submitted such an averment under threat of sanctions pursuant to Rule 11; the other co-defendants were notified of the removal notice and had an opportunity to object to it. These two considerations--the availability of sanctions and of objection--mitigate concerns that one defendant might falsely state the other defendants' consent, or that one defendant might game the system by silently allowing another to remove and, if the federal forum proves disadvantageous, belatedly object that he had not consented.

--A

Swine Flu Vaccine Litigation

Last week saw the beginning of the delivery of vaccines for the H1N1 or "swine flu" virus.  Perhaps the only thing more predictable than the worry that we will not have enough of the vaccine are the lawsuits that have already been filed.

In New York state court, a group of health care workers has filed a lawsuit alleging that mandatory vaccination of all health care workers violates their civil rights.  The judge granted a temporary restraining order and has scheduled a further hearing for next week.

Another lawsuit filed in the D.C. Circuit challenges the licensing of the vaccines, alleging that the vaccines are untested and unsafe.

These cases, along with any lawsuits alleging actual injury from receiving the injections, are sure to raise issues of interest to civil procedure and federal courts scholars, from possible consolidation of a mass tort, to potential application of the 1986 National Childhood Vaccine Act (42 U.S.C. 300aa 1-34), and preemption issues.

Stay tuned for further developments in this field.

RJE