Civil Procedure & Federal Courts Blog

Another AALS Panel of Interest: "Revisiting Discovery" (January 8)

Readers attending the Association of American Law Schools (AALS) annual meeting next week in New Orleans may be interested in the AALS Civil Procedure Section's program, Revisiting Discovery, which is co-sponsored by the Litigation Section. The panel is scheduled for Friday, January 8 from 10:30 a.m. - 12:15 p.m. Here is the description:

Since the Federal Rules of Civil Procedure were adopted in 1938, discovery has played a central role in the American litigation system. Indeed, for many years, pleading was considered of little importance compared to discovery. But as courts and commentators have focused on the costs of discovery, there have been multiple efforts--with varying degrees of success--to rein in discovery. One recent example has been the apparent tightening of pleading standards in Twombly, a tightening which the Court justified in part by nothing the high cost of discovery in complex antitrust actions. In light of Twombly and other developments, the time is right for a renewed focus on the relationship between discovery and other aspects of the litigation system, including pleading and summary judgment. The need for further consideration of the role of discovery in the litigation process as a whole led to our call for papers. The papers selected will be the foundation of our program.

Speakers include:

Steven S. Gensler, University of Oklahoma College of Law
Lonny S. Hoffman, University of Houston Law Center (moderator)
Suzette M. Malveaux, The Catholic University of America Columbus School of Law
Adam N. Steinman, University of Cincinnati College of Law

AALS Panel of Interest: "The Future of Summary Judgment" (January 9)

Readers attending the Association of American Law Schools (AALS) annual meeting next week in New Orleans may be interested in the AALS Litigation Section's program, The Future of Summary Judgment, which is co-sponsored by the Civil Procedure Section. The panel is scheduled for Saturday, January 9 from 10:30 a.m. - 12:15 p.m. Here is the description:

Over the past forty years, summary judgment has played an increasingly prominent role in federal and state civil litigation. Some hail the expanded availability of summary judgment as promoting efficiency, preserving judicial resources and relieving pressure on overcrowded dockets. Others criticize the current state of summary judgment practice as promoting needless pre-trial transaction costs, undermining the role of jury trials, and disadvantaging employment discrimination, civil rights and other plaintiffs. Recent proposed amendments to Rule 56 have further fueled the debate about the proper role for summary judgment. In addition, some think the U.S. Supreme Court’s May 2009 decision in Ashcroft v. Iqbal will impact the future role of summary judgment and accelerate pre-trial dispositive motion practice by increasing the number of cases dismissed at the pre-answer motion stage of litigation. Speakers will address a range of issues relating to the future of summary judgment, such as the evolution of federal summary judgment law and practice since the 1970s, whether the trans-substantive model for summary judgment remains effective or normatively preferable, the proposed changes to Rule 56, and whether the Iqbal decision will affect the role of summary judgment.”

Speakers include:

Ronald G. Aronovsky, Southwestern Law School (moderator)
Edward J. Brunet, Lewis and Clark Law School
Stephen B. Burbank, University of Pennsylvania Law School
Steven S. Gensler, University of Oklahoma College of Law
Linda S. Mullenix, The University of Texas School of Law
Adam N. Steinman, University of Cincinnati College of Law
Suja A. Thomas, University of Illinois College of Law

Fu and Cullen on Public Interest Litigation in China

Professors Hualing Fu (University of Hong Kong Faculty of Law) and Richard Cullen (Monash University) have posted "The Development of Public Interest Litigation in China" on SSRN.

The abstract states:

This paper studies the reception and development of public interest litigation in China. In this paper, public interest litigation (PIL) is defined broadly to include a judicial process, including court-based mediation and adjudication, in which grievances of a general nature, normally in relation to social and economic rights, are litigated in pursuit of legal remedies against government departments, public authorities, and monopoly enterprises. Since its reception in China in the middle of the 1990s, PIL has become more institutionalized. This paper identifies five changes in PIL in China: 1) from spontaneous action to institutionalization; 2) from passivity to aggressive defence; 3) from litigation to networking; 4) from using law as shield to using law as sword; and 5) from case handling to policy changes. Lawyers have become more demanding, aggressive and challenging and the current pushback by the government in restricting aggressive public interest lawyering is, in part, a response to the growth of PIL in China in the past 20 years.

~clf

Interveners at the Supreme Court of Canada

Benjamin Alarie and Andrew James Green have posted Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance to SSRN.
Abstract:     
Do interveners matter? Under Chief Justice McLachlin the Supreme Court of Canada has allowed an average of 176 interventions per calendar year and interveners have cumulatively made submissions in half of the cases heard by the Court. This level of activity suggests that interveners are doing something. But what is it that they are doing?

In the abstract, there are at least three functions that the practice of intervention might perform. First, hearing from interveners might provide objectively useful information to the Court (i.e., interveners might promote the “accuracy” of the Court’s decision-making). A second possibility is that the practice of intervention allows interveners to provide the “best argument” for certain partisan interests that judges might want to “affiliate” with. A third possibility is that interventions are allowed mainly (if not only) so that intervening parties feel they have had their voices heard by the Court and by the greater public, including Parliament, regardless of the effect on the outcome of the appeal (i.e., the Court might be promoting the “acceptability” of its decisions by allowing for an outlet for expression).

It is disconcerting that until now the effects of interventions on the decision-making of the Supreme Court of Canada have not been systematically explored through empirical analysis. A growing body of literature has examined the role of amicus curiae at the Supreme Court of the United States. To date, however, the related literature in Canada is slim and, to the extent it exists, does not deploy the empirical methods necessary to test independently for the influence of interveners on the decisions of individual judges. This work fills this gap in the existing literature and expands our collective understanding of the consequences of the practice of intervention at Canada’s highest court. We find evidence that interveners matter more than many observers might expect.

RJE

Davies on Baseball and Law

Professor Ross Davies (George Mason University School of Law) has posted "It's No Game: The Practice and Process of the Law in Baseball, and Vice Versa" on SSRN.  The article will be published in the Seton Hall Journal of Sports and Entertainment Law.

The abstract states:

It is a commonplace that the relationship between baseball and the law is a long and close one. But, first, is it true? And, second, if it is, just how long and how close? Strangely, given the large amount of good work produced by able scholars of baseball and the law, concrete answers to these basic questions are not readily available. This article is a first step toward filling that gap. It is a sketch of the length, breadth, and depth of the relationship between baseball and the law. (In order to tell a less-than-interminable tale, this article mostly tilts back and forth between recent years – evidence of the vibrancy of the baseball-law relationship today – and the late 19th and early 20th centuries – evidence that it has been vibrant for a long time – and deals only sketchily even with those periods. This should not be taken to mean that the baseball-law relationship was any less interesting at other times, or that there isn’t much more to be said about all times.) As should be clear by the end of this article, the answer to the first question is an emphatic and certain “Yes”: baseball and the law are close and have been for a long time. The answer to the second question, however, is an equally emphatic but far less certain “Very”: while there surely are both unrecognized extents and unmarked limits to the law-baseball relationship, we cannot define them without a fuller inventory and chronology – an old-fashioned digest – of the thousands upon thousands of events that make up the history of baseball and the law. Perhaps this article can serve as the kernel of such a project.

~clf

Erie and Class Actions: Waiting for the Supreme Court's Decision in Shady Grove

While many children are spending today waiting for Santa, I thought I'd talk about a Supreme Court decision that the civil-procedure world is eagerly awaiting: Shady Grove v. Allstate, which was arguedlast month. Unlike Santa, a Dec. 25th arrival is doubtful. But Shady Grove could be the most important decision on the Erie doctrine in years. The case confronts a significant issue at the intersection of judicial federalism and civil litigation: when is a federal court bound by state law on whether a class action should be certified? (If folks are interested in a pre-Shady Grove examination of this issue, check out my 2008 article What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245.)

Shady Grove is a putative class action alleging violations of New York state insurance law. It was filed in federal court based on the new form of diversity jurisdiction created by the 2005 Class Action Fairness Act (CAFA). Here's the rub: New York law precludes class actions for statutory-damages claims like the one in Shady Grove. Federal law, on the other hand, would allow a class action if the general requirements of Rule 23 are satisfied. It's a classic Erie-Hanna-Rules Enabling Act problem. Is the federal court bound by New York's bar on this kind of class action? Or may the federal court apply the federal approach to class certification and, potentially, certify the class despite New York law?  

It is somewhat ironic that the Supreme Court is confronting the Erie/class action issue in a case where state law is more hostile to class actions than federal law. The conventional wisdom has long been that a defendant opposing a class action has better odds in federal court than in state court. But many of the arguments the Shady Grove defendants are making, if the Court accepts them, could benefit plaintiffs in cases where the state-law approach is indeed more friendly to class actions. If New York's law prohibiting certain class actions is held to be binding in federal court, a more lenient state-law approach to class actions could be binding as well.

So if the Supreme Court in Shady Grove agrees with the defendant and holds that state law governs, it may well be that what's good for the goose (defendants) is also good for the gander (plaintiffs). That could have a remarkable effect on judicial federalism in the post-CAFA era. Consider the common scenario, where a defendant invokes CAFA and removes a case to federal court in order to avoid a more lenient state-court approach to class certification. The logic of the defendant's arguments in Shady Grove could mean that the state's approach to class certification would be binding in federal court thanks to the Erie doctrine. The consequences could even extend beyond class certification. After the Supreme Court's decisions in Twombly and Iqbal, some litigants may find a federal pleading standard that is stricter than the one that applies in state court a block away. Depending on how Shady Grove is decided, it could pave the way for plaintiffs to argue that more lenient state-law pleading standards should be binding in federal court via Erie (my Erie article examines this possibility in more detail).

--A

(Cross-posted at Concurring Opinions)

PS: As in Shady Grove, the litigants in Erie were also not in their typical positions vis-a-vis the larger federalism question. The Erie plaintiff, Mr. Tompkins, wanted to use "federal common law" to displace state tort law. But as a general matter, such federal common law tended to benefit corporate and business interests like The Erie Railroad Company. That's probably why Erie's lawyers never made the argument, which Justice Brandeis ultimately embraced, that federal courts lacked authority to impose such federal common law.

PENNumbra wraps up Iqbal debate

Professor Burbank has posted his final statement on PENNumbra, bringing the Iqbal debate to a close (at least as far as the Penn Law Review is concerned!)

The full debate is available here.

RJE

LeRoy on the Effect of Partisan Election of Judges on Judicial Review of Employment Arbitrations

Professor Michael H. LeRoy (University of Illinois College of Law) has posted "Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations" on SSRN in the Working Paper Series.

The abstract states:

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights.

I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable – method for selecting judges – to my database of 223 state court rulings from 1975-2008.

I relate this empirical research to a strategic model of corporate avoidance of liability in employment disputes. Some employers avoid lawsuits by requiring employment arbitration, and implementing favorable arbitration rules. When awards are appealed to court, employers continue to influence the outcome by designating the court for reviewing an award. This model suggests that some employers would expand their influence by strategically supporting judges who run for office in political campaigns.

I found that in state trial courts where an award was challenged, employees won only 32.1% of cases before party-affiliated judges. But in states where judges were appointed or elected in non-partisan races, employees prevailed in 52.7% of the cases.

The partisan election effect was not observed, however, in appellate cases. Employees won 43.2% of cases before party-affiliated judges, and 50.0% of cases before judges who were appointed or elected in non-partisan races.

My results provide preliminary and limited support for the concern that partisan judicial elections produce unequal justice for ordinary people who are not large campaign donors. But, there are important caveats. This study did not determine whether judges in these cases actually accepted campaign support from employer groups. These judges may have ruled through a more ideological prism than appointed and non-partisan judges.

In the same vein, the finding of no partisan effect at the appellate level is not conclusive – and does not mean that party-affiliated appellate judges are as neutral as their appointed counterparts. Even in partisan judicial elections, it appears that only some appellate candidates raise war chests and declare campaign positions. A seemingly biased judge, such as the justice in Caperton, can be outvoted by more neutral judges on the appellate panel, thereby muffling the effect of campaign spending in partisan elections.

My findings do not prove that employers seek venue before judges who receive their campaign contributions, but they offer preliminary statistical evidence that suggests that this is possible. The fact that employers can designate venue in an arbitration contract reinforces this possibility. In sum, the shocking example in Caperton, along with the preliminary data in my study, suggests that employers are able to expand the liability-avoidance model by donating to judges who would review their arbitration awards.

~clf

New York Times Editorial on Iqbal

Today, the New York Times published this editorial on Iqbal:  "Restoring Access to the Courts."

~clf

More Congressional Activity on Iqbal

While the Senate was wrestling with health care reform last week, the House turned once again to whether and how to legislatively overrule Iqbal. (For coverage of previous hearings in the House and Senate, see here, here, here, and here.)    

On December 16, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing on H.R. 4115, the "Open Access to the Courts Act of 2009." The Judiciary Committee's website is here, and a video webcast is available here.

Below is the witnesses list and links to their testimony:

Hon. Jerrold Nadler
U.S. House Representatives
8th District, NY

Eric Schnapper
Professor of Law
University of Washington School of Law

Gregory G. Katsas
Director of Financial Regulation Studies
Former Assistant Attorney General, Civil Division
U.S. Department of Justice 

Jonathan L. Rubin
Patton Boggs, LLP
Washington, DC

Joshua P. Davis
Professor Center for Law and Ethics
University of San Francisco School of Law

--A

Dyevre on European Integration and National Courts

Arthur Dyevre (CEPC) has posted "European Integration and National Courts--A Strategic Analysis of Judicial Behaviour" on SSRN in the Working Paper Series. 

The abstract states:

The present paper looks at the jurisprudence of national courts on the European law doctrines of supremacy and direct effect. Its central hypothesis is that national courts, supreme and constitutional courts in particular, try under the constraints of their institutional system to reconcile two conflicting goals: (1) the necessity to ensure the application and, hence, the supremacy of EU law on a daily basis as a direct and inevitable consequence of EU membership, and (2) the will to keep integration under control by preserving an at least hypothetical last word for the Member States and, thereby, the notion of national sovereignty. This hypothesis provides an explanation both for the overall equilibrium governing the relationship between the ECJ and national courts and for the variations in the way national judges have accommodated direct effect and EU law supremacy.

~clf

Dale Beck Furnish (Arizona State College of Law) has posted Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation to SSRN.

Abstract:     
Navajo Tribal Courts Exercise Extensive Civil Jurisdiction ~ Many commentators feel that recent U.S. Supreme Court decisions curtail tribal courts’ jurisdiction over civil lawsuits, even while Congress and the federal Executive encourage Indian autonomy. Plains Commerce Bank v. Long Family Land & Cattle Co. (June, 2008) is the latest in that line of decisions. The article begins by assessing whether the case may have extended the U.S. Supreme Court limitations, and concludes that Plains Commerce Bank wastes its precedent in an extremely narrow holding, changing nothing in existing doctrine. The article then analyzes that Supreme Court doctrine in the context of the Navajo Nation’s tribal courts. Since 1958 the Navajo Nation has developed a strong court system. Prior to 1958, Arizona, New Mexico and Utah state courts exercised jurisdiction over all civil controversies involving Navajo Country. The advent of the Navajo (and other tribes’) courts has given rise to cases confronting the issue of when the states must defer their civil jurisdiction to the tribal courts. The three state courts have differing approaches to what is still a relatively new problem. Notably, Arizona’s Supreme Court has handed down some of the most extreme precedents against the civil jurisdiction of tribal courts, while New Mexico’s Supreme Court takes a balanced approach more considerate of tribal judicial sovereignty. The Navajo Nation Supreme Court, however, has a surer touch than the state courts in dealing with the issue. A series of Navajo opinions beginning in 2003 sets out a reasoned doctrine of assertive tribal court jurisdiction over civil lawsuits, carefully working within the U.S. Supreme Court precedents. The article concludes that the Navajo Nation’s tribal courts will develop a stronger and stronger role in the resolution of civil controversies in the three states its reservation touches, undeterred by anything that the U.S. Supreme Court is likely to decide.

RJE

Cupp on Preemption and Products Liability Reform

Richard L. Cupp, Jr. has posted Preemption's Rise (and Bit of a Fall) as Products Liability Reform: Wyeth, Riegel, Altria, and the Restatement (Third)'s Prescription Product Design Defect Standard to SSRN.

Abstract:     
This Article compares and contrasts the rocky reception the Restatement (Third) of Torts section 6(c)’s restrictive prescription product design standard has endured with the rise of an increasingly active judicial approach to preemption from the 1990s through the late 2000s. Preemption’s rise may have to some extent crested (at least for now) with Riegel v. Medtronic in 2008, and it showed signs of possible contraction (again, at least for now) with Wyeth v. Levine in 2009. The Article analyzes the effect of preemption’s rise in the 1990s and pre-Wyeth 2000s on developing a generally more restrictive approach to prescription product design defect claims, along with other prescription product defect claims. The article suggests that the restrictive tone of section 6(c) may have to some extent caught the “mood” of courts regarding prescription product design liability, even if the specific details of the unfamiliar standard have not found much traction. Indeed, some of the rationales provided for section 6(c) overlap with some of the rationales the Supreme Court employed in the 1990s and 2000s to support its increasingly aggressive use of preemption analysis in prescription products cases. Thus, the article concludes that the currents underlying section 6(c)’s restrictive tone for prescription product design liability may have found a “back door” in Supreme Court rulings such as Daubert and Riegel, despite most courts’ and commentators’ refusal to provide “front door” acceptance of the Restatement (Third)’s prescription product design defect standard. Further, the article contemplates whether Wyeth may represent the start of a contraction in preemption doctrine or whether its significance will be more limited.

RJE

Ninth Circuit Allows Cameras in District Courts

The Ninth Circuit Judicial Council has approved the use of cameras in district courts in some civil non-jury trials. The new policy replaces the policy in place in the Ninth Circuit since 1996 banning photography and radio and television coverage in the district courts.

The press release is here.

~clf

Hot Off The Presses: Recent Articles Of Interest

With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Bryan H. Babb & Kellie M. Barr, Developments in Indiana Appellate Procedure: Rule Amendments, Notable Case Law, and Tips for Appellate Practitioners, 42 Ind. L. Rev. 813 (2009)

Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J. 183 (2009)

Daniel K. Burke, Recent Developments in Indiana Civil Procedure, 42 Ind. L. Rev. 879 (2009)

William W. Buzbee, Preemption Hard Look Review, Regulatory Interaction, and the Quest for Stewardship and Intergenerational Equity, 77 Geo. Wash. L. Rev. 1521 (2009)

Robert M. Chesney, National Security Fact Deference, 95 Va. L. Rev. 1361 (2009)

Daniel B. Garrie & Yoav M. Griver, Mobile Messaging and Electronic Discovery, 8 Loy. L. & Tech. Ann. 95 (2008-2009)

Angela M. Laughlin, This Ain't the Texas Two Step Folks: Disharmony, Confusion, and the Unfair Nature of Personal Jurisdiction Analysis in the Fifth Circuit, 37 Cap. U. L. Rev. 681 (2009)

Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 Ecology L.Q. 665 (2009)

Christopher Meisenkothen, When Three's a Crowd: Kyrtatas, Malerba, and the Connecticut Product Liability Act. The Confusing Interplay of Cross-Claims, Third-Party Impleader, Contribution, and Indemnification in Product Liability Claims, 27 Quinnipiac Law Review 881 (2009)

Daniel A. Richards, Note, An Analysis of the Judicial Panel on Multidistrict Litigation's Selection of Transferee District and Judge, 78 Fordham L. Rev. 311 (2009)

The Philip D. Reed Lecture Series, Sanctions in Electronic Discovery Cases: Views From the Judges, 78 Fordham L. Rev. 1 (2009) (Daniel J. Capra, moderator; Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska and Hon. Shira A. Scheindlin, panelists).

--A

Need CLE? . . . there's an app for that

West unveiled its new iPhone app this week to enable lawyers to get continuing legal education (CLE) credits by taking courses on an iPhone or iPod Touch.  The app itself is free through Apple iTunes App Store.  The user must then set up an account with West LegalEdCenter; this account will enable the user to buy and download courses from a library of over 2000 online courses.  Once a course is completed, the user can submit the course completion information to obtain state CLE credit.

For more information, see this article in the Minneapolis / St. Paul Business Journal.

~clf

Qui tam suits in action

The University of Phoenix recently settled a False Claim Act qui tam action in California federal court.
The lawsuit alleged that the the University of Phoenix had defrauded the government by paying enrollment counselors for enrolling students, a practice prohibited for educational institutions that receive federal funds for student aid.

The case settled for $67.5 million to be paid to the government and $11 in attorneys fees.  This is a big payday for plaintiffs lawyers pursuing qui tam actions.  But it is a risky strategy -- this case is notable because it is unusual for plaintiffs to win these cases where the government chooses not to intervene.

Additional reporting available here at MSN and here at The Recorder.

RJE

Vladeck on habeas jurisdiction for Guantanamo detainees

Over at Prawfsblog, Steve Vladeck has a good post on the jurisdictional issues raised by moving many of the Guantanamo detainees to the Thomson facility in Illinois.

From the post:
"Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.

The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla.  There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]"

RJE

New York Times article features hormone replacement therapy litigation

The New York Times article, Menopause, as Brought to You By Big Pharma features a history of regulatory and litigation issues surrounding the prescription of hormone replacement therapy drugs. The litigation centers on the Prempro cases against Wyeth (now part of Pfizer).

RJE

Issacharoff on Pragmatic Originalism

Professor Samuel Issacharoff (New York University School of Law) has posted "Pragmatic Originalism?" on SSRN.  It will be published in the NYU Journal of Law & Liberty.

The abstract states:

As the influence of and debates over originalist constitutional arguments has spread, so has some uncertainty of the exact sources of originalist authority. The maturation of the debates has exposed some dissensus over the intent of the Framers or Ratifiers, the plain meaning, the conventional contemporary understanding, and the actions of the founding generation. 

This essay, part of a symposium on the jurisprudence of Justice Thomas, takes no position on the contending sources of originalist authority. Rather it uses the appearance of distinct original sources, as set out in the contribution to this symposium of Professor Gregory Maggs, to examine the potential impact on the force of originalist claims when subsequent judicial applications have to choose among rival potential sources of original intent, particularly when the distrinct strains of originalism might point toward different outcomes. 

The presence of multiple originalist sources might be an embarrassment were originalism to be defended as a narrow interpretive device that relieves courts of the need to make contested interpretations of constitutional authority. Were the turn to originalism defended on pragmatic or instrumental grounds as a limiting strategy for judicial review, as this Essay proposes, the anxiety over multiple authorities would be lessened if not eliminated. Although originalism is not often defended on pragmatic grounds, this Essay suggests that this may be its strongest claim.

~clf