Thursday, September 30, 2010
On Wednesday, the House passed a $7.4 billion dollar bill to provide medical treatment for those suffering from respiratory difficulties in the aftermath of 9/11. Because the first responders will be a large beneficiary of this legislation, it is thought that this will speed the settlement in the 9/11 cases pending before Judge Hellerstein because the current version of the legislation does not require the workers to choose between public funds and the settlement. The National Law Journal has further analysis here.
Wednesday, September 29, 2010
As covered earlier here, the Supreme Court is finally ending its long hiatus from the topic of personal jurisdiction by granting certiorari in Goodyear v. Brown (No. 10-76) and J. McIntyre Machinery v. Nicastro (09-1343). Several other cert. grants may also be of interest (links are to SCOTUSblog’s case files):
Astra USA, Inc. v. Santa Clara County (09-1273):
Whether, in the absence of a private right of action to enforce a statute, federal courts have the federal common law authority to confer a private right of action simply because the statutory requirement sought to be enforced is embodied in a contract.
Smith v. Bayer Corp. (09-1205):
(1) Whether, under the re-litigation exception of the Anti-Injunction Act, a district court can enjoin parties from seeking class certification in state court under state procedural rules when the district court had previously denied certification of a similar class under federal procedural rules but neither the parties sought to be estopped nor the issues to be presented in state court are identical as those presented to the district court.
(2) Whether a district court that previously denied class certification nonetheless has personal jurisdiction over the absent putative class members such that it may enjoin them from seeking class certification in state court.
Stern v. Marshall (No. 10-179):
(1) Whether the Ninth Circuit’s interpretation of 28 U.S.C. § 157(b)(2)(C) contravenes congressional intent;
(2) Whether Congress may authorize core jurisdiction over debtors’ compulsory counterclaims to proofs of claim;
(3) Whether the Ninth Circuit contravened Supreme Court precedent and created a circuit split by holding that Congress cannot constitutionally authorize non-Article III bankruptcy judges to enter final judgment on all compulsory counterclaims to proofs of claim.
Tuesday, September 28, 2010
Great news for all of us who are smack in the middle of teaching personal jurisdiction: The Supreme Court has granted cert in the cases of Goodyear v. Brown and J. McIntyre Machinery Ltd. v. Nicastro. SCOTUSblog has further links to the grant and opinions below.
Goodyear Issue: Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.
McIntyre Machinery Issue: Does a "new reality" of "a contemporary international economy" permit a state to exercise, consistent with due process, personal jurisdiction over a foreign manufacturer under the stream of commerce theory solely because the manufacturer targets the U.S. market for the sale of its product and the product is purchased by a forum state consumer?
RJE (h/t Edward Hartnett)
Prof. Suja Thomas (Illinois) has posted on SSRN her forthcoming essay, Oddball Iqbal and Twombly and Employment Discrimination, to be published in the University of Illinois Law Review. Here’s the abstract:
This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars including Professor Richard Epstein have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal like Twombly was also an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.
Monday, September 27, 2010
Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.
The abstract states:
On Friday, Justice Scalia (Circuit Justice for the Fifth Circuit) issued an order staying a quarter-of-a-billion-dollar judgment entered in Louisiana state court against several tobacco companies. The case is Philip Morris USA Inc. v. Scott (No. 10A273, docket available here), and the lower court opinion is at 36 So. 3d 1046. The defendants sought the stay to give them time to file a cert. petition, which will challenge the judgment on federal due process grounds. In granting the stay, Justice Scalia concludes: “I think it reasonably probable that four Justices will vote to grant certiorari, and significantly possible that the judgment below will be reversed.”
More from Scalia’s Opinion in Chambers:
Applicants complain of many violations of due process, including (among others) denial of the opportunity to cross-examine the named representatives of the class, factually unsupported estimations of the number of class members entitled to relief, and constant revision of the legal basis for the plaintiffs’ claim during the course of litigation. Even though the judgment that is the alleged consequence of these claimed errors is massive—more than $250 million—I would not be inclined to believe that this Court would grant certiorari to consider these fact-bound contentions that may have no effect on other cases.
But one asserted error in particular (and perhaps some of the others as well) implicates constitutional constraints on the allowable alteration of normal process in class actions. This is a fraud case, and in Louisiana the tort of fraud normally requires proof that the plaintiff detrimentally relied on the defendant’s misrepresentations. 949 So. 2d, at 1277. Accordingly, the Court of Appeal indicated that members of the plaintiff class who wish to seek individual damages, rather than just access to smoking cessation measures, would have to establish their own reliance on the alleged distortions. Ibid. But the Court of Appeal held that this element need not be proved insofar as the class seeks payment into a fund that will benefit individual plaintiffs, since the defendants are guilty of a “distort[ion of] the entire body of public knowledge” on which the “class as a whole” has relied. Id., at 1277–1278. Thus, the court eliminated any need for plaintiffs to prove, and denied any opportunity for applicants to contest, that any particular plaintiff who benefits from the judgment (much less all of them) believed applicants’ distortions and continued to smoke as a result.
Applicants allege that this violates their due-process right to “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted) (quoting American Surety Co. v. Baldwin, 287 U. S. 156, 168 (1932)). . . . The apparent consequence of the Court of Appeal’s holding is that individual plaintiffs who could not recover had they sued separately can recover only because their claims were aggregated with others’ through the procedural device of the class action.
The extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question. National concern over abuse of the class-action device induced Congress to permit removal of most major class actions to federal court, see 28 U. S. C. §1332(d), where they will be subject to the significant limitations of the Federal Rules. Federal removal jurisdiction has not been accorded, however, over many class actions in which more than two-thirds of the plaintiff class are citizens of the forum State. See §1332(d)(4). Because the class here was drawn to include only residents of Louisiana, this suit typifies the sort of major class action that often will not be removable, and in which the constraints of the Due Process Clause will be the only federal protection. There is no conflict between federal courts of appeals or between state supreme courts on the principal issue I have described; but the former seems impossible, since by definition only state class actions are at issue; and the latter seems implausible, unless one posits the unlikely case where the novel approach to class-action liability is a legislative rather than judicial creation, or the creation of a lower state court disapproved by the state supreme court on federal constitutional grounds. This constitutional issue ought not to be permanently beyond our review.
For additional coverage, see Lyle Denniston’s post on SCOTUSblog.
Friday, September 24, 2010
The New York Law Journal reports that a judge in New York's Suffolk County has ruled that a plaintiff's private Facebook postings are discoverable in a personal injury action.
Perhaps this will reinforce our growing sense that just checking your privacy settings is not enough.
Wednesday, September 22, 2010
My students often ask me if attorneys are ever really sanctioned for filing frivolous motions or appeals. The National Law Journal has this story of an attorney for Toyota who was sanctioned for filing an appeal that was "'rife with legal and factual errors' and included 'misstatements of the law and mischaracterizations' of the evidence."
Thursday, September 16, 2010
Now available on SSRN are drafts of articles that will appear in the Notre Dame Law Review’s annual Federal Courts, Practice and Procedure issue, which is scheduled to publish in February 2011. The topic is Shady Grove Orthopedic Associates v. Allstate Insurance Co., last March’s Supreme Court decision on class actions, the Erie doctrine, and the Rules Enabling Act (covered earlier here). The contributions include:
Kevin M. Clermont, The Repressible Myth of Shady Grove
Richard A. Nagareda, The Litigation-Arbitration Dichotomy Meets the Class Action
Wednesday, September 15, 2010
The following Call for Papers has been issued by Valparaiso University School of Law for its upcoming conference on "Civil Litigation as a Tool for Regulating Climate Change," which will be held on Feb. 18, 2011:
The purpose of this conference is to explore the interlinked policy, science, legal and political questions of utilizing the American litigation system, and particularly its tort theories of liability, to regulate climate change. Attempts to employ the courts as a tool for regulation are exemplified by cases such as Comer v. Murphy Oil, Connecticut v. American Electric Power, Co., and Native Village of Kivalina v. Exxon Mobile Corporation. Key presentations at the conference will be made by Professor Daniel Farber, Director of the Center for Law, Energy and the Environment, University of California at Berkeley; Professor Michael B. Gerrard, Director of the Center for Climate Change Law, Columbia University School of Law; and Professor Daniel Bodansky of the Schools of Sustainability and of Law, Arizona State University. Scholars and practitioners in the fields of environmental science, litigation, and tort law, among other areas, are encouraged to attend and present papers that will generate debate and discussion concerning the desirability of such litigation, strategies concerning it, and the impact it might have on efforts to bring about national legislation and international cooperation on global warming and related problems.
Valparaiso University School of Law issues this call for papers as part of the 25th Annual Monsanto Lecture/Conference on Tort Law and Jurisprudence, to be held at the School of Law on February 18, 2011. If you are interested in presenting, please submit an abstract of your proposed paper. Abstracts are due on or before December 1, 2010. A limited number of stipends are available to defray travel and lodging costs of some participants.
Earlier this year, we covered the Supreme Court’s much-anticipated decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co., 130 S. Ct. 1431 (2010), which examined the role of state class-action law in federal court under the Erie doctrine and the Rules Enabling Act (REA). In a 5-4 decision, Shady Grove held that New York state law did not displace Federal Rule of Civil Procedure 23’s framework for deciding whether a class action should be certified. Beyond this basic holding, however, Shady Grove leaves many significant questions unanswered (as I argue in this forthcoming article).
Now pending before the Supreme Court is a petition for certiorari that may be a vehicle for the Supreme Court to confront some of the unresolved issues surrounding Erie and the REA. The case is Medison America, Inc. v. Preferred Medical Systems, LLC (09-1372), and the first question presented is:
“Must a federal court, sitting in diversity and hearing a summary judgment motion, apply state law when state law imposes a higher burden of proof on a movant and preserves the constitutional rights of a nonmovant to a state-created remedy via trial by jury?”
The petitioner in Medison argues that Tennessee law makes it harder for a defendant to obtain summary judgment than the federal summary-judgment standard. The role of state summary-judgment standards in federal court is a classic Erie/REA issue, and it targets two important aspects of Erie/REA that Shady Grove failed to resolve: (1) the proper interpretation of the REA’s requirement that the Federal Rules “shall not abridge, enlarge or modify any substantive right”; and (2) the extent to which a Federal Rule must be read to accommodate state law when its text reasonably allows such a reading, such as when the Rule's text employs an ambiguous standard that can be applied in a manner consistent with state law.
As for the first question, Shady Grove yielded no majority view because Justice Stevens (the tie-breaking fifth vote) wrote separately on the REA, although he ultimately agreed with Justice Scalia’s conclusion that applying Rule 23 in Shady Grove did not violate the REA. Medison would be a particularly interesting vehicle for exploring the REA’s substantive-rights provision, because summary-judgment standards are closely analogous to burdens of proof. Justice Stevens’ Shady Grove concurrence explicitly identified burdens of proof as implicating the kind of substantive rights that the REA protects from interference by the Federal Rules [130 S Ct. at 1450 n.4, 1453 n.9]. Even Justice Scalia recognized that burdens of proof present a “difficult” question under the REA [130 S. Ct. at 1446 n.13].
The second issue is best illustrated by the Supreme Court’s decision in Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). Gasperini held that although Rule 59 governed a post-trial motion to set aside a damage award as excessive, the Erie doctrine required a federal court to apply New York’s standard of review for damage awards, rather than the federal judiciary’s traditional “shocks-the-conscience” test. In Erie parlance, Gasperini indicates that a Federal Rule does not truly “collide” with state law if the Federal Rule’s text is open-ended enough to accommodate state law. Colliding with the federal judiciary’s gloss on a Federal Rule (in Gasperini, the shocks-the-conscience test) is not the same thing as colliding with the Federal Rule itself. Because that judicial gloss is essentially federal common law, the choice between state and federal law is what Hanna called a “relatively unguided Erie choice” that is more likely to opt for state law.
A similar argument could be made in the context of class-certification standards, but it was neither presented nor considered in Shady Grove. That is, even if we accept Shady Grove’s holding that Rule 23 governs class certification in federal court, state law might still displace the federal judiciary’s “common law” on, say, Rule 23(b)(3)’s superiority requirement. Thus a federal court applying Rule 23 in a case like Shady Grove might have to incorporate New York’s view that the danger of remedial overkill makes statutory-damages class actions a bad idea. And federal courts might also have to incorporate state law that is more permissive of class actions; where the class asserts claims arising under such a state’s law, the state’s view that a class action is superior to individual adjudication could legitimately displace the federal judiciary’s more hostile approach.
Medison presents an opportunity for the Supreme Court to squarely confront this issue, because the Erie-meets-summary-judgment question implicates this same line of argument. Even if Rule 56 governs whether summary judgment is appropriate in federal court, the Gasperini argument remains: state law should determine whether a summary-judgment movant has indeed “show[n] that there is no genuine issue as to any material fact.” (If readers are interested, this article addresses this argument in more detail, although it’s from before Shady Grove.)
For more information on Medison, see the Supreme Court’s docket here. Some of the cert. filings are available on Westlaw (the petition is at 2010 WL 1900678 and the petitioner’s reply brief is at 2010 WL 3375619). Medison has been distributed for the Court’s so-called “long Conference” on September 27th.
PS: The second question presented in Medison is also an interesting one:
“Whether the United States Court of Appeals for the Sixth Circuit, applying the holding in Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989), misinterpreted this Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) as authorizing entry of a summary judgment in favor of a party who merely asserts that the nonmovant lacks admissible evidence on an essential element of its claim, i.e. allowing the Respondent to prevail under a ‘put up or shut up’ theory.”
I argue in an earlier article (available here) that the summary-judgment approach exemplified by Street is not a correct reading of Celotex.
Tuesday, September 14, 2010
Catherine Struve (University of Pennsylvania Law School) has posted Institutional Practice, Procedural Uniformity, and As-Applied Challenges under the Rules Enabling Act to SSRN.
Addressing the Supreme Court’s decision last Term in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., this symposium essay focuses on the debate between the plurality and Justice Stevens concerning the availability of as-applied challenges to the validity of rules promulgated under the Rules Enabling Act. Agreeing with Professor Allan Ides’ article in the same symposium, this essay argues that Justice Stevens’ proposed approach strikes a reasonable balance: State-specific as-applied invalidation of a federal rule should be permissible but rare.
A survey of debates over facial and as-applied review in other contexts shows that the choice among facial review, as-applied review, and a combination of the two depends on both the institutional setting and the nature of the constraint that forms the basis for the review. In the context of Enabling Act review of federal rules, as-applied review is not unprecedented, and it has a role to play. Though the rulemakers are attentive to the limits imposed by the Enabling Act, they may not always be able to foresee a rule’s future effects on substantive rights. Admitting the possibility of the occasional as-applied challenge to a rule’s validity permits questions of a rule’s effect on substantive rights to develop in the context of concrete cases, before judges who are likely to have some familiarity with the relevant substantive-law concerns. The information developed in such litigation can inform both a court’s evaluation of the rule’s application in the case before it and future deliberations of the rulemakers.
As-applied challenges can cause uncertainty, can be difficult to resolve, and can impair the nationally uniform application of the federal rules. But the costs of state-specific as-applied review could be controlled by requiring a strong showing before finding a rule invalid as applied. There already exist other features of federal court practice that currently produce significant inter-state procedural variation. And the federal system asks state courts to tolerate similar disuniformity in state procedure.
Professor Diane Marie Amann has posted "Portraits of Women at Nuremberg" on SSRN. It will be published in the American Society of International Law Journal.
The abstract states:
Friday, September 10, 2010
Now available on SSRN are several contributions to the Penn State Law Review's symposium on Ashcroft v. Iqbal. They include:
Kit Kinports, Iqbal and Supervisory Immunity
Victor C. Romero, Interrogating Iqbal: Intent, Inertia, and (a Lack of) Imagination
Shoba Sivaprasad Wadhia, Business as Usual: Immigration and the National Security Exception
Nancy Welsh, I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution
Thursday, September 9, 2010
Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted):
[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.
To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.
But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.
Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”
(Hat Tip: Jonathan Hafetz)
Tuesday, September 7, 2010
Monday, September 6, 2010
Andrew S. Pollis (Case Western Reserve University School of Law has posted The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation to SSRN.
Multidistrict litigation, or “MDL,” is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, more than a third of all pending civil cases in federal court are part of an MDL proceeding, and the resulting efficiency is indisputable.
But the efficiency comes at great—and largely overlooked—cost. Because a single judge renders all the important legal decisions in each MDL with virtually no scrutiny from other trial judges, one instance of pretrial legal error can have immediate and sweeping impact on thousands of cases and on the evolution of the law. And, because most types of interlocutory appeals go forward only if the trial and appellate courts permit them, the right of appeal is not an adequate protection against pretrial error in the MDL context. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty.
It is time to restore the balance of judicial power. This article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should be potentially dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances, as in any expansion of appellate jurisdiction, would not come without costs. But the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend.
Saturday, September 4, 2010
The New York Times has an article entitled High-Speed Courts Offer Answer to Foreclosure. It is a good teaching tool for those of us looking to highlight current event examples of the relationship of procedure, claims, and remedies.
From the article:
No one disputes that foreclosures dominate Florida’s dockets and that something needs to be done to streamline a complex and emotionally wrenching process. But lawyers representing troubled borrowers contend that many of the retired judges called in from the sidelines to oversee these matters are so focused on cutting the caseload that they are unfairly favoring financial institutions at the expense of homeowners.
Lawyers say judges are simply ignoring problematic or contradictory evidence and awarding the right to foreclose to institutions that have yet to prove they own the properties in question.
Thursday, September 2, 2010
Earlier this summer, Paul Ceglia filed a lawsuit in a Buffalo, New York state court claiming he’s entitled to an 84% stake in Facebook. Mark Zuckerberg, the defendant and Facebook CEO, removed the case to U.S. District Court for the Western District of New York on diversity grounds. Zuckerberg contends that he’s a citizen of California and the plaintiff is a citizen of New York.
Last month the plaintiff filed a motion to remand the case, arguing that Zuckerberg is still domiciled in New York, thus destroying diversity of citizenship. Zuckerberg filed his opposition to remand this week.
Zuckerberg’s citizenship for diversity purposes has already been the subject of a published federal court decision. In ConnectU LLC v. Zuckerberg, 482 F. Supp. 2d 3 (D. Mass. 2007) (Hat Tip: Kevin Clermont), the court held that as of September 2, 2004, Zuckerberg was still domiciled with his parents in New York. That decision was reversed on other grounds.