Civil Procedure & Federal Courts Blog

Bybee and Pincock on How the State "Sells" its Judiciary

Professor Keith J. Bybee (Syracuse University College of Law) and Heather Pincock have posted "Efficient, Fair, and Incomprehensible: How the State 'Sells' Its Judiciary" on SSRN.

The abstract states:

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades-long effort to displace local justice systems.

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Choi, Gulati, and Posner on Judicial Ability and Securities Class Actions

Stephen J. Choi (NYU School of Law), G. Mitu Gulati (Duke University School of Law) and Eric Posner (University of Chicago Law School) have posted Judicial Ability and Securities Class Actions to SSRN.

Abstract:     
We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are mixed, providing some but limited evidence for the hypotheses.

RJE

Call for Papers: International Conference on Judicial Cooperation Among Courts in Europe and the US

The following Call for Papers has been issued for the International Conference on Judicial Cooperation Among Courts in Europe and U.S.: A Comparative Approach:

   The International Conference on Judicial Cooperation Among Courts in Europe and U,S.: a Comparative

Approach will be held at the European University Institute in Florence, Italy, December 13-14, 2010.
Colleagues are invited to submit paper proposals and related inquiries to the conference organizers c/o Oscar Chase by e-mail off line.
The Conference is co-sponsored by the Opperman Institute for Judicial Administration at NYU and the Network of Chief Justices of European Supreme Courts. Funds are available for transportation (coach) to and lodging in Florence.
   Judges serving on different courts cooperate across jurisdictional borders in a variety of ways. They belong to national and international organizations, serve on law making bodies (such as the Judicial Conference) and on advisory panels, and they attend conferences on substantive and administrative matters. This Conference will explore the questions whether and how further cross-jurisdictional cooperation should develop. For example, the Association of Chief Justices of the Supreme Courts of the EU member nations is considering conferring regularly on substantive issues with the goal of agreeing on approaches to common legal issues.
   Members of the U.S. and European judiciaries and legal academics from both continents will examine such specific topics as current judicial cooperative efforts; the constitutional dimension; the instruments of judicial cooperation; and the governance of judicial cooperation, among others.
Paper proposals of  no more than  three pages should describe the topic proposed, the methodology anticipated, and the projected thesis. Papers will be presented by the authors at the conference for comment. Submissions by June 25, 2010 willl be appreciated.

[H/T: Oscar Chase]

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Faculty Hiring Announcement: McGill University

McGill University's Faculty of Law anticipates making one or more entry-level tenure-track hires. One area of emphasis is civil procedure. Below is the full announcement:

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Gulf Spill Litigation: To Stay or Not to Stay

The National Law Journal reports that two federal judges have come to opposite rulings about whether to stay litigation until decisions about consolidation are made and more potential lawsuits are filed.

As I have written previously, I believe that courts should proceed with caution when casting too wide a consolidation net in the aftermath of a major catastrophe.  The problems of whether it is fairer or more efficient for cases to move forward on their own or to be consolidated with other cases is a serious question for which I do not believe there are clear or easy answers.

RJE

"To Stay or Not to Stay" the Gulf of Mexico Oil Spill Cases

Two federal courts have responded to BP's motions to stay law suits regarding the oil spill in the Gulf of Mexico pending a determination of a multidistrict litigation panel on whether to combine the 130+ cases.  One granted the stay and one denied it.  A federal court in Mobile, Alabama denied BP's request to delay filing an answer, while another federal court in New Orleans, Louisiana granted BP's motion to stay proceedings. Judge Martin Feldman based his decision to stay the New Orleans proceedings on the "grave potential of conflicting discovery orders," which poses "a hardship for defendants [and] mocks an efficient and orderly judicial system."

The National Law Journal has more about the conflicting decisions on BP's motions to stay proceedings here.

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Faculty Hiring Announcement: University of New Mexico

We blogged earlier about a civil procedure opening at the University of New Mexico School of Law. Courtesy of SSRN's Legal Scholarship Network, here's a more detailed announcement:

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Michael Bohlander on Recruitment of ICC Judges

Professor Michael Bohlander (Durham Law School) has posted "Pride & Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts" on SSRN.  It is published in the New Criminal Law Review.

The abstract states:

Investigates the law and practice of recruitment of judges to international criminal courts and recommends the adoption of more stringent selection criteria and the establishment of proper training courses and a pool of adequate candidates.

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Decision of Interest: Of Summary Judgment and Ferrets

The First Circuit's decision in Puerto Rico American Insurance Co. v. Rivera-Vázquez, No. 08-2012, 2010 WL 1781929, 2010 U.S. App. LEXIS 9224 (May 5, 2010), deals with a local "anti-ferret" rule, so named because it is "aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record."

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SCOTUS Grants Cert in Arbitration Case

From the jurist.org report:

The court granted certiorari to another federal preemption case on Monday in AT&T Mobility v. Concepcion [docket; cert. petition, PDF]. The court will decide whether the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings.

RJE

Congressional Hearing on the Removal Clarification Act of 2010 (H.R. 5281)

The House Judiciary Committee's Subcommittee on Courts and Competition Policy is holding a hearing this afternoon (5/25/2010, 2:00 p.m.) on H.R. 5281, the "Removal Clarification Act of 2010."

The bill would amend the federal officer removal statute (28 U.S.C. § 1442) to provide that "civil action[s]" removable under § 1442 "include any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued" from a federal officer. The bill would also exempt federal officer removal rulings from 28 U.S.C. § 1447(d)'s bar on appellate review of district court remand orders.

Go to the following links for the bill's text and legislative history and more information about the hearing. A link to a live webcast is available here, or you can stop by 2141 Rayburn House Office Building. The witness list includes:

Beth S. Brinkmann
Deputy Assistant Attorney General, Civil Division
U.S. Department of Justice
Washington, DC

Irvin B. Nathan
General Counsel
Office of the General Counsel
U.S. House of Representatives
Washington, DC

Lonny S. Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Houston, TX

Arthur D. Hellman
Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA

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Vladeck on Terrorism Trials and Federal Courts

Professor Stephen I. Vladeck (American University Washington College of Law) has posted "Terrorism Trials and the Article III Courts after Abu Ali" on SSRN.  It will be published in the Texas Law Review.

The abstract states:

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian - rather than military - jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule - what we might characterize as either a “distortion effect” or a “seepage problem.”

Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article - the trial of Ahmed Omar Abu Ali.

As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal - especially where the defendant is a U.S. citizen.

To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation - including its triumphs and its shortcomings - will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.

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Sebok on Inauthentic Claims

Anthony Sebok (Cardozo School of Law) has posted The Inauthentic Claim to SSRN.

Abstract:     
This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article that the foundation of both doctrines is based on something I call the theory of “the inauthentic claim.”

The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. It does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.

This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. I conclude that neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third party investment in litigation.

RJE

Faculty Hiring Announcement

The University of New Mexico School of Law is looking to hire a number of new faculty, including a position in the civil procedure area.

Applicants should attach their cover letter and CV to their online application via the UNMJobs website: https://unmjobs.unm.edu/ (the civil procedure position is posting number 0806250). Professor Elizabeth Rapaport is the head of the hiring committee.

(Hat Tip: Erik Gerding via The Conglomerate)

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AALS Mid-Year Meeting: Civil Procedure Workshop

If you're interested in attending the Association of American Law Schools' Workshop on Civil Procedure (New York City, June 10-12), today is the deadline for discounted "Early Bird" registration. More details and the program schedule are available here. Registration information is available here.

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Iqbal, Twombly, and the NFL

Iqbal-Twombly anniversary week continues with this decision from the Third Circuit. Mayer v. Belichick affirms the district court's dismissal of a claim by a Jets season ticket holder (New York, not Winnipeg) arising out of the Spygate videotaping scandal.

For additional coverage, see How Appealing.

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Ashcroft v. Iqbal Turns One

The Supreme Court’s controversial pleading decision Ashcroft v. Iqbal celebrates(?) its first anniversary today. Coincidentally, today is also the day that my article, The Pleading Problem, 62 Stanford L. Rev. 1293 (2010), is officially in print. Here’s the abstract:

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.

This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

The citation count data in the article's appendix reveals that Iqbal has had quite a prolific first year on the books. It is already among the most frequently cited Supreme Court decisions of all time.   

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11 Circuit Drills Twiqbal Through Dentists' Class Action

The 11th Circuit has nixed a RICO class action brought by dentists against the insurers who reimburse them for services on the grounds that the complaint does not meet the Twiqbal plausibility requirements.

Aside from being an interesting decision, I couldn't help but be amused by bad dentist related puns in this news report from the National Law Journal:

[The plaintiff's lawyer] said that he sensed defeat during oral arguments. "It was clear from the minute I opened my mouth," he said. "The Court of Appeals was a buzzsaw."

Ouch.

RJE

Silver on Aggregate Litigation, Ethics and Innovation

Charles Silver (Texas) has posted on SSRN his forthcoming essay, Ethics and Innovation, which will appear in the George Washington Law Review. Here's the abstract:

Using the familiar insight that principals and agents can jointly gain by reducing agency costs, this essay argues (1) that lawyers hoping to attract clients should seek to improve the quality of representation in mass tort cases and to signal their reliability and honesty; (2) that lawyers have sought to adopt innovations that would reduce agency costs, including governance arrangements designed to address monitoring problems, facilitate collective choice by clients, and provide in advance for the allocation of settlement funds; (3) that courts, relying on state bar rules and other laws designed for single-client representations, have undermined lawyers’ efforts by stifling these innovations; and (4) that, by preventing lawyers from innovating, judges have insulated agency problems in mass tort representations from attack and have disserved clients despite seeking to protect them.

This essay comments on articles by other authors that were presented at a conference on the American Law Institute’s Project on the Principles of Aggregate Litigation, of which the author is Associate Reporter. The papers and this essay will be published in a symposium issue of the George Washington Law Review in 2011.

(Hat Tip: Larry Solum)

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Samahon on Impeachment as Judicial Selection

Tuan Samahon (Villanova) has posted Impeachment as Judicial Selection? to SSRN.

Abstract:     
Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who pre-commit to particular legal interpretations and constructions of constitutional text. It may also include deselection by way of impeachment and removal (or at least its threat) of judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collegial courts, such as the U.S. Supreme Court and the U.S. courts of appeals, where personnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachment illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection.

This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet’s and Balkin’s framework of “constitutional hardball.” In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process. This Article details prior episodes of impeachment as judicial selection. It explains why the idea of impeachment as an ex post selection tool proves so tempting. It then considers those legal arguments that justify and contest the claims of this variety of constitutional hardball. Further, the Article makes the case that, contrary to conventional wisdom, constitutional and political developments make impeachment a closer alternative to transformative, affirmative selection than in the past. This relative feasibility heightens the fool’s gold allure of impeachment as judicial selection. Actually impeaching for judicial selection, however, would yield results that many would consider as untoward and unacceptably intruding on judicial independence and the rule of law. This Article briefly considers those significant costs.

RJE