Tuesday, November 30, 2010
The Supreme Court issued its opinion in Los Angeles County v. Humphries No. 09-350 today. Justice Breyer wrote for the court and held that a municipality is not liable for civil rights violations under 42 U.S.C. §1983 regardless of whether the relief sought by the plaintiffs is prospective or for monetary damages unless the plaintiffs can show that their injury was caused by a municipal policy or custom.
Further coverage available at SCOTUSblog.
Jay Tidmarsh (Notre Dame) has posted on SSRN a draft of his article, Procedure, Substance, and Erie, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:
This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process - in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context - a pillar on which present Erie analysis is based - is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural Erie” cases: that federal courts can apply their own rules to process a claim as long as, in a costless and outcome-neutral world, those rules do not affect the ex ante value of a claim at the time of its filing.
Monday, November 29, 2010
Michael G. Collins (University of Virginia School of Law) and Jonathan Remy Nash (Emory University School of Law) have posted Prosecuting Federal Crimes in State Court to SSRN.
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present, scholars have urged that state courts be allowed to entertain certain federal criminal prosecutions - prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.
A close review of the evidence - including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments - suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.
Friday, November 26, 2010
On December 10th, 2010, Florida International University College of Law is hosting the 4th International Conference on the Globalization of Collective Litigation. From the FIU website:
This conference, co-organized by professors Manuel A. Gomez (Florida International University College of Law) and Deborah R. Hensler (Stanford Law School) is the fourth in the series of international conferences on the global spread of collective litigation begun in 2007 at Oxford University. It will bring together academicians, policy analysts and legal practitioners to systematically review the status of collective litigation around the world with special focus on Latin America, a region signaled by a growing interest in protecting collective rights, the passage of legislation that provides for class actions and similar mechanisms, and the increased participation of domestic courts in deciding cases that involve large-scale accidents, environmental harms, exposure to toxic materials, defective products and financial injuries.
A pdf of the conference flyer is available here.
(Hat Tip: Howard Wasserman)
Tuesday, November 23, 2010
Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2011 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by December 5 to Thom Main at email@example.com.
Monday, November 22, 2010
Steve McConnell at the Drug and Device Law Blog has a post about the practice of joining corporate employees to a lawsuit for the purpose of creating or destroying diversity jurisdiction. As is always the case with the blog, the post is both entertaining and informative while advancing a distinct argument.
Friday, November 19, 2010
This week’s New York Times contains an article by Adam Liptak titled Justices Are Long on Words but Short on Guidance. From the article:
The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship. In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.
Among the examples provided are Twombly and Iqbal:
In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.” That standard, Arthur R. Miller wrote last month in The Duke Law Journal, is “shadowy at best” and has caused “confusion and disarray among judges and lawyers.”
Wednesday, November 17, 2010
Robert Hardaway (University of Denver), Dustin Berger (Columbia University), and Andrea DeField (University of Denver) have posted E-Discovery's Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age to SSRN.
Changes in technology allow litigants to create and store much more information than has ever been possible before. Unfortunately, the costs of searching through litigants’ ever-growing sources of electronically stored information threaten to undermine the civil litigation system. Indeed, we argue that a typical civil litigant cannot sustain the costs of the discovery-related litigation. As a result, many civil litigants will never be able to obtain a judicial resolution of the merits of their case. The Federal Rules of Civil Procedure, even as amended in 2006 specifically to address the costs and scale of e-discovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants’ cases. The solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery in favor of a rule that would equally distribute the costs of discovery to the requesting and producing parties. While other commentators have proposed a variety of solutions to this problem, the other proposed solutions are generally inadequate because they fail to address the underlying cause of the rising costs and scope of e-discovery. We demonstrate how mandatory cost sharing gives all parties the incentive to control the cost and scale of e-discovery. We also show that some state and many foreign jurisdictions have rejected the presumption that the producer pay for the costs of discovery, thereby demonstrating that the producer-pays presumption is not essential to the operation of a civil justice system.
Tuesday, November 16, 2010
As covered earlier here, the Supreme Court decided last year that an order compelling disclosure of a document despite a claim of attorney-client privilege is not immediately appealable under the collateral order doctrine. Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009). A recent decision in the Ninth Circuit, United States v. Krane, No. 10-30247, 2010 WL 4260978, 2010 U.S. App. LEXIS 22605 (Oct. 29, 2010), holds that Mohawk does not abrogate the so-called Perlman rule, which derives from Perlman v. United States, 247 U.S. 7 (1918). The Ninth Circuit writes (some citations omitted):
Under Perlman, a discovery order directed at a disinterested third-party custodian of privileged documents is immediately appealable because the third party, presumably lacking a sufficient stake in the proceeding, would most likely produce the documents rather than submit to a contempt citation.
The Perlman rule survives the Supreme Court's recent decision in Mohawk. In Mohawk, the Supreme Court held that “disclosure orders adverse to the attorney-client privilege” are not subject to interlocutory review under the Cohen “collateral order” exception to the final-judgment rule of 28 U.S.C. § 1291.
Perlman and Mohawk are not in tension. When assessing the jurisdictional basis for an interlocutory appeal, we have considered the Perlman rule and the Cohen collateral order exception separately, as distinct doctrines.
Mohawk forecloses interlocutory appeal of some district court orders in reliance on the fact that “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” 130 S.Ct. at 606; see also id. at 607-08 (surveying “several potential avenues” by which “litigants confronted with a particularly injurious or novel privilege ruling” might seek its immediate review “apart from collateral order appeal,” including by not complying with a disclosure order and then receiving, and appealing, a contempt citation). In contrast, the Perlman rule applies only when the privilege holder is powerless to avert the mischief of a district court's discovery order because the materials in question are held by a disinterested third party. Such third parties . . . may be likely to forgo suffering a contempt citation and appealing in favor of disclosure. . . . Further, in this case, neither the privilege holder nor the custodian of the relevant documents are parties to the underlying criminal proceedings. Thus, for all practical purposes, this appeal is [the privilege holder’s] only opportunity to seek review of the district court's order adverse to its claims of attorney-client privilege.
For more information on the case, see U.S. Law Week (79 USLW 1599).
Monday, November 15, 2010
Sunday’s New York Times contains an article Investors Put Money on Lawsuits to Get Payouts, which begins:
Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.
The loans are propelling large and prominent cases. Lenders including Counsel Financial, a Buffalo company financed by Citigroup, provided $35 million for the lawsuits brought by ground zero workers that were settled tentatively in June for $712.5 million. The lenders earned about $11 million.
Most investments are in the smaller cases that fill court dockets. Ardec Funding, a New York lender backed by a hedge fund, lent $45,000 in June to a Manhattan lawyer hired by the parents of a baby brain-damaged at birth. The lawyer hired two doctors, a physical therapist and an economist to testify at a July trial. The jury ordered the delivering doctor and hospital to pay the baby $510,000. Ardec is collecting interest at an annual rate of 24 percent, or $900 a month, until the award is paid.
Thursday, November 11, 2010
Prof. Suzanna Sherry (Vanderbilt) has posted on SSRN a draft of her forthcoming article, Foundational Facts and Doctrinal Change, to be published in the University of Illinois Law Review (January 2011). Here’s the abstract:
Doctrine is at the center of law and legal analysis. This Article argues that we have fundamentally misunderstood its nature. The conventional approach to legal doctrine focuses on theory and applications. What is the doctrine designed to do and how does it function? But many doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, hidden element. They are built on foundational facts: potentially contested factual assumptions embedded in the doctrinal structure itself. Foundational facts are judges' generalized and invisible intuitions about how the world works. Whether a defendant acted in a particular way out of a particular motive are decisional, rather than foundational, facts. But the likelihood of actors in defendant's position acting that way or having that motive are foundational facts, and doctrinal rules - including burdens of proof and standards of review - will be structured differently depending on whether judges assume a high or low likelihood. Foundational facts thus drive doctrine. Without an understanding of a doctrine's foundational facts, we cannot adequately understand the doctrine and its changes over time. Foundational facts only come to light when doctrine shifts, seemingly inexplicably and often without judicial acknowledgment that anything has changed. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the doctrinal change. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrine and its underlying assumptions.
Our readers may be particularly interested in Professor Sherry’s discussion of changes in summary-judgment doctrine (the 1986 trilogy) and pleading doctrine (Twombly/Iqbal).
Tuesday, November 9, 2010
We covered earlier the Supreme Court’s grant of certiorari in AT&T Mobility LLC v. Concepcion (09-893), which presents the issue:
Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures—here, class-wide arbitration—when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.
Monday, November 8, 2010
The Sunday Magazine of the New York TImes has a long and interesting feature on the role on organization of lawyers in the BP litigation with a particular emphasis on the personalities involved and their past association with complex litigation. A very interesting read.
Friday, November 5, 2010
Just in time for this week, Joshua A. Douglas (University of Kentucky) has posted The Procedure of Election Law in Federal Courts to SSRN.
Much attention is paid to the substantive outcomes of election law decisions. But little scholarship focuses on the mechanisms by which election law cases traverse the federal courts. This article fills that void.
The article first identifies the goals Congress should try to achieve in creating special procedures for election law cases. Congress has deemed election law cases to be particularly important given the foundational issues at stake in resolving election law disputes. Accordingly, the legislature has created various procedural mechanisms to shepherd these cases through the federal courts. What goals should underlie these processes? Based on the importance of election law cases to the foundation of our representative government and the history of judicial involvement in elections, election law court procedures should try to achieve the following goals: timeliness, accuracy, legitimacy, minimization of ideology, maximization of each judge’s skills, and signaling of the importance of election law cases to our democratic order. Although these goals may certainly be laudable for all cases, they are particularly important to elevate in the election arena given the high stakes involved and the importance of fair elections to the functioning of our democracy.
Next, the article dissects the three ways federal courts hear election law cases. First, a case can follow the “traditional” three-tiered path, starting with a single district judge, with direct appeal to a three-judge panel of the court of appeals and discretionary en banc or Supreme Court review. Second, certain cases start with a three-judge panel of the district court, which is comprised of two district judges and one circuit court judge, with direct mandatory appeal to the Supreme Court. Third, in a minority of election law cases, a dispute originates with a single district judge, who certifies nonfrivolous constitutional questions to the en banc circuit court, with certiorari review at the Supreme Court. The article explores each of these mechanisms, highlighting the intended and unintended consequences of each system. In particular, the article evaluates whether each process meets the six goals for federal court involvement in election law cases.
The article concludes by proposing, for all election law cases, a procedure that elevates these ideals: a modified form of the en banc certification process used in some federal court cases (which I term modified direct en banc review). This system best achieves the important goals identified earlier in the paper and streamlines federal court involvement in elections.
Thursday, November 4, 2010
The Supreme Court heard oral argument yesterday in Williamson v. Mazda Motor of America, Inc. (08-1314), which presents the question:
Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?
Wednesday, November 3, 2010
Scott Dodson (William and Mary School of Law) has posted The Complexity of Jurisdictional Clarity to SSRN.
The ideal of clear and simple jurisdictional rules seems like a no- brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates and discretion toward a perspective that focuses on the value and attainability of clarity. It offers a more refined understanding of the surprising uncertainty and complexity of jurisdictional clarity, and it argues that, contrary to the rhetoric, the ideal of jurisdictional clarity is mostly illusory. Difficulties inherent in the design, implementation, and instrumental direction of clear and simple jurisdictional rules largely render them unattainable. Rather than continue to invoke the unexamined ideal of clarity and simplicity, jurisdictional doctrine should strive to confine clarity to what it can reasonably accomplish and to embrace the undervalued virtues of uncertainty and complexity.
Tuesday, November 2, 2010
We covered earlier the Supreme Court's grant of certiorari in Ortiz v. Jordan, which presents the issue:
"May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?"
(Because the defendants' summary judgment motion was based on qualified immunity, which means they could have sought an appeal prior to trial via the collateral order doctrine.)
Monday, November 1, 2010
The Supreme Court granted certiorari today in Fox v. Vice (No. 10-114), which presents the following questions:
1) Can defendants be awarded attorney's fees under 42 U.S.C. § 1988 in an action based on a dismissal of a claim, when the plaintiff has asserted other interrelated and non-frivolous claims?
2) Is it improper to award defendants all of the attorney's fees they incurred in an action under 42 U.S.C. § 1988, when the fees were spent defending non-frivolous claims that were intertwined with the frivolous claim?
Lior Strahilevitz (University of Chicago Law School) has posted Pseudonymous Litigation to SSRN.
We presently lack a good theory for when we should permit parties to litigate using a pseudonym, and American and European legal systems differ sharply on the question. This essay attempts to leverage one of the developments associated with the information age to make progress towards a satisfying answer. The relevant development is the newfound ease with which one can air a grievance pseudonymously or anonymously via online feedback sites, rating sites, and similar forums. Given the availability of these sometimes attractive alternatives to litigation, the legal system should answer the question of whether to permit a party to litigate as a “John Doe” by determining whether a particular grievance is optimally resolved via legal dispute resolution mechanisms or the self-help alternatives that have arisen online and elsewhere. These alternative mechanisms are markedly inferior to litigation at addressing certain types of disputes and markedly superior at addressing other sorts of controversies. Many of the factors most relevant to determining whether a dispute is best addressed in a court or in a less costly forum – such as the existence of legal issues of first impression, the public relations sophistication and reputational stakes of the parties, the existence of material factual disputes, the degree to which the parties’ conduct violates existing social norms, and the magnitude of the harms suffered – are not easily discerned at the outset of litigation. It therefore may be optimal to permit a party to litigate to final judgment using a pseudonym and to consider revealing the litigant’s identity at the conclusion of proceedings. Such determinations could be based on either a balancing test that weighs the relevant aforementioned factors or a less precise bright-line rule, such as “prevailing party pseudonymity.” The essay examines how such approaches would have played out in Doe v. Smith, a Seventh Circuit invasion of privacy case that expressed misgivings about permitting pseudonymous litigation despite quite sympathetic facts.