Monday, October 31, 2011
I have written a slightly longer opinion piece about Wal-Mart for the Westlaw Class Action Journal entitled The New Commonality: Rule 23(a)(2) After Wal-Mart v. Dukes. It's behind a paywall, but can be accessed here or at the citation 18 No. 9 Westlaw Journal Class Action 2.
Prof. Judith Resnik (Yale) has posted on SSRN Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011). Here’s the abstract:
Can eighteenth-century constitutional commitments that “courts shall be open” for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide “equal justice under law”? That question sits at the intersection of three cases, AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, decided in the 2010 Supreme Court Term. In each decision, Justices evaluated the fairness of particular procedures (class arbitrations, class actions, or civil contempt processes) when making choices about the meaning of governing legal regimes — the Federal Arbitration Act (FAA) and state unconscionability doctrine in AT&T; Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner.
AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child’s custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts.
Each case exemplifies the challenges that new rights, produced by twentieth-century social movements, pose for courts. When claimants such as consumers, employees, and household members presented themselves as entitled to equal treatment, jurists responded by interrogating their own procedural parameters. Relying on the Due Process Clause, courts developed distinct lines of analyses that — depending on the context — imposed criteria on decisionmaking procedures, mandated subsidies to address resource asymmetries between adversaries, shaped processes to reduce intra-litigant disparities, and facilitated access to courts. Requisite to those efforts was a practice that is intertwined with fairness — the public quality of adjudication that endows an audience with the authority to watch, critique, and respond through democratic channels to the legal norms announced. A “fair and public hearing” became a touchstone of what democratic orders required their courts to provide.
But, as this trio of cases demonstrates, whether seeking to implement those egalitarian aspirations or simply to function, courts have to grapple with economically disparate claimants and a vast volume of eligible rights holders. If eighteenth-century constitutional entitlements to open courts are to remain relevant to ordinary litigants, the question is not whether to aggregate, subsidize, and reconfigure process but how to do so “fairly,” in terms of what groups, which claims, by means of which procedures, and offering what remedies. But without public disclosures and oversight of dispute resolution — in and out of court, single file and aggregated — one has no way to know whether fairness is either a goal or a result.
Friday, October 28, 2011
Lorne Sossin (York University - Osgoode Hall Law School) has posted Revisiting Class Actions Against the Crown: Balancing Public and Private Legal Accountability for Government Action to SSRN.
Five years ago, I began to notice a trend toward more numerous and wide ranging class actions against the Crown, seeking redress for state action against those claiming they were especially harmed by that action. Some of these class actions – for example, seeking remedies for the Crown’s role in the SARS or Mad Cow outbreaks – sought billions of dollars of damages. Many of these class actions, in my view, involved the review of ministerial decision-making and could have been framed as judicial reviews in the conventional administrative law sense. Was the incentive for mass recovery and soaring contingency fees driving more lawyers to frame unfair or unreasonable government decisions as violating tort and contract standards? Was I witnessing another dimension of access to justice and progressive behaviour modification through class actions, or alternatively, did this trend represent a distortion of public accountability through private claims?
Wednesday, October 26, 2011
People for the Ethical Treatment of Animals (PETA) is reportedly filing a lawsuit today in federal district court in San Diego against SeaWorld, seeking a declaration that the five killer whales that perform at SeaWorld's San Diego and Orlando parks are being held as slaves in violation of the Thirteenth Amendment to the United States Constitution.
The five plaintiffs are anticipated to be Corky, Kasatka, Ulises, Tilikum, and Katina.
For further details see the story at Signonsandiego.com here.
Conference at New York Law School on Summary Judgment, Iqbal, and Employment Discrimination on April 23, 2012
New York Law School Law Review has announced the following symposium:
The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) are pleased to present Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination, a symposium that will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases and explore potential strategies to reverse this growing trend.
The reality today is that motions for dismissal and for summary judgment are filed in nearly every case. Originally conceived as an efficient means to help plaintiffs in debt collection cases, Federal Rule of Civil Procedure 56 allowed judges to resolve quickly claims where material facts were not genuinely in dispute and the defendant could not mount a defense. Today, the drafters of Rule 56 would not recognize its expanded application, particularly in employment cases.
Encouraging this movement towards pre-trial adjudication of employment discrimination cases are the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, through which the Supreme Court appeared to raise the quantum of facts that a plaintiff must plead to avoid successfully a motion to dismiss. As summary judgment is the accepted mechanism for evaluating the factual sufficiency of complaints, these rulings raise interesting questions as to whether the Court has blurred the line between motions to dismiss and motions for summary judgment.
The increasing prevalence of pre- and post-trial dispositive motions has had a demonstrably unique effect in cases alleging violations of employment discrimination laws. A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable JNOV motions after trial.
Papers will be published in a forthcoming issue of the New York Law School Law Review.
For further information, click here.
Tuesday, October 25, 2011
Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation (University of Richmond, Nov. 11)
The announcement below is for the University of Richmond Law Review’s Fall 2011 Allen Chair Symposium:
Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation
November 11, 2011
Ukrop Auditorium, Robins School of Business (Queally Hall)
School of Law Moot Court Room
Each year, the Allen Chair Symposium explores a single topic of national interest. This year, working in collaboration with Professors Carl Tobias and Kevin Walsh, the University of Richmond Law Review presents the 2011 Allen Chair Symposium entitled “Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation.” This year’s symposium focuses on the procedural and litigation issues that have permeated numerous challenges to the 2010 Patient Protection and Affordable Care Act. While much of the attention has focused on the constitutionality of the legislation, lawyers litigating these cases had to address critical issues involving the role of states as litigants, the distinction between facial and applied challenges, severability, and other issues. The symposium will bring lawyers and scholars together in order to explore these all too important procedural issues; so join us and be part of this important discussion!
If you are unable to attend the symposium in person, please feel free to participate via the live webcast. Information for the live webcast will be available on November 11, 2011 at 7:30 A.M. E.S.T..
Conference brochure available here.
Friday, October 21, 2011
Alexandra Lahav (University of Connecticut) has posted The Case for Trial By Formula to SSRN.
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality will improve our civil justice system.
To date, the discussion about civil litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass torts context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others are treated in similar circumstances. This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.
Wednesday, October 19, 2011
Patrick Joseph Borchers (Creighton University School of Law) has posted J. McIntyre Machinery, Goodyear, and the Incoherence of the Minimum Contacts Test to SSRN.
On June 27, 2011, when J. McIntyre Machinery Ltd. v. Nicastro and Goodyear Dunlop Tire Operations, S.A. v. Brown were handed down, it marked the first time in almost a quarter century that the United States Supreme Court engaged in an extended discussion of the minimum contacts test. That test has for nearly seven decades set the basic parameters of measuring the constitutionality of exercises of state-court personal jurisdiction. The cases were generally assumed to have been accepted for review by the Supreme Court to clarify two areas in which the constitutional boundaries of state-court jurisdiction were unclear. The first stemmed from the Supreme Court's 1987 decision in Asahi Metal Industry Co. v. Superior Court, which produced no majority opinion and thus left unclear whether the forum state sale of an allegedly dangerous product that caused injury to the plaintiff there sufficed to establish jurisdiction. The second was the quantum of unrelated business contacts in the forum state necessary to create jurisdiction. Unfortunately, as to the first issue, the Supreme Court again produced no majority opinion, and left the subject even more muddled than before. The plurality opinion written by Justice Kennedy attempted to re-ground state-court jurisdiction in a dubious sovereignty theory that the Supreme Court had rejected several times before. As to the second issue, the Court held that unrelated sales in the forum were not enough to establish jurisdiction. The Supreme Court appeared to announce a new test that required the defendant's contacts with the forum state be enough so that the defendant is "essentially at home" in the forum, but provided little elaboration as to what is meant by that phrase. This article argues that the two new cases represent a continuation of the Supreme Court's vacillating and unclear jurisprudence in this area, and that the fundamental difficulty is that the Court lacks any clear constitutional rationale for limiting exercises of assertions of state-court jurisdiction.
H/T Legal Theory Blog
Monday, October 17, 2011
Today, the Supreme Court granted cert in two cases that should be of interest to civ pro and fed courts profs.
Kiobel v. Royal Dutch Petroleum, No. 10-1491, to be argued with Mohammad v. Rajoub, No. 11-88. In the ruling below in Kiobel, residents of Nigeria brought claims under the Alien Tort Statute against corporations (as opposed to individuals within those corporations) that allegedly aided and abetted the Nigerian government in committing human rights abuses directed at the plaintiffs, and the appeals court held their claims fell outside the limited jurisdiction provided by the Alien Tort Statute and had to be dismissed for lack of subject matter jurisdiction. In Mohammed, the court below held that only a natural person is amenable to suit under the Torture Victim Protection Act, and the sons and widow of a decedent allegedly tortured and killed by the Palestinian Authority and the Palestine Liberation Organization could not sue the PA and the PLO under the TVPA. The petitions for review asked whether the issue of corporate civil tort liability under the Alien Tort Statute is a merits question or an issue of subject matter jurisdiction, and whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions, or genocide.
Elgin v. Dept. of Treasury, No. 11-45. Do federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees, or does the Civil Service Reform Act impliedly preclude that jurisdiction?
Wednesday, October 12, 2011
From the LSN professional announcements. Notice our fellow blogger Robin Effron is one of the commentators.
IBL Symposium: Globalization of the United States Litigation Model
Friday, October 21, 9:00 am - 5:00 pm, Subotnick Center, 250 Joralemon Street, Brooklyn
CO-SPONSORS: The Dennis J. Block Center for the Study of International Business Law was established by Brooklyn Law School to provide students with the opportunity to study and shape international business law and policy, drawing upon its faculty's depth of scholarship, experience, and strong international and business law curriculum. It sponsors outstanding symposia that bring together leading practitioners, government officials, and legal scholars from around the world to discuss topics including securities regulation, trade, banking, and intellectual property law.
For over three decades, the Brooklyn Journal of International Law has demonstrated a commitment to publishing substantive, scholarly articles, making it one of the top-ranked international journals in the nation. Published three times a year, the journal features articles on public and private international law by leading authors from academia, government, and private practice.
ABOUT THE SYMPOSIUM: Globalization has led to greater connectivity, interdependence, and economic integration. As a result, this has exposed some plaintiffs and defendants as global participants to different litigation systems.
Given the importance of the United States in the process of globalization and the extent to which the United States relies on litigation in various contexts, its litigation system is viewed by some as a model-one to be either imitated or avoided. For example, the United States is generally more receptive to litigation as a means of protecting injured investors or as a tool of corporate governance, as in the use of collective actions through class litigation and derivative lawsuits. In addition, entrepreneurial lawyers are an important part of the litigation model.
The symposium brings together scholars to discuss how the U.S. model has or has not influenced the development of other litigation systems. Three sessions will focus on procedural issues, securities litigation and enforcement, and derivative litigation.
8:30am Registration and Continental Breakfast
9:00am Welcoming Remarks
Michael A. Gerber, Interim Dean and Professor of Law, Brooklyn Law School
Arthur Pinto, Co-Director, Dennis J. Block Center for the Study of International Business Law; Professor of Law, Brooklyn Law School
9:30am Procedural Issues
Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
Sergio J. Campos, Associate Professor of Law, University of Miami School of Law
Antonio Gidi, Assistant Professor of Law, The University of Houston Law Center
Commentator: Robin Effron, Associate Professor of Law, Brooklyn Law School
11:15am Securities Litigation and Enforcement
Eugenio J. Cardenas, Doctor of the Science of Law (JSD) Candidate, Stanford Law School
Poonam Puri, Associate Professor of Law, Osgoode Hall Law School York University
Manning G. Warren III, H. Edward Harter Chair of Commercial Law, Brandeis School of Law, University of Louisville
Commentator: James Park, Associate Professor of Law, Brooklyn Law School
2:00pm Derivative Litigation
Arad Reisberg, Reader in Corporate and Financial Law & Vice Dean (Research), Director, UCL Centre for Commercial Law, Faculty of Laws, University College London
Martin Gelter, Associate Professor of Law, Fordham University School of Law
Daniel W. Puchniak, Assistant Professor, Faculty of Law, National University of Singapore
Commentator: Minor Myers Assistant Professor of Law, Brooklyn Law School
Monday, October 10, 2011
Whenever colleagues at one of my former institutions would (tongue in cheek) argue about which required law school course was most important, one of my fellow Civ Pro professors would invariably pronounce Civil Procedure as “the foundation of all law.”
Those of us who appreciated the spirit, if not the letter, of this sentiment are brought down a peg or two by Justice John Paul Stevens’ recently-published Five Chiefs: A Supreme Court Memoir. In his brief history of the Chief Justices of the Supreme Court and the best-known opinions issued during the term of each, Justice Stevens makes no mention of a single civil procedure case – not even Erie.
Reading this 248-page small book is a pleasant way to spend an evening. I felt that I was sitting on the porch drinking lemonade with the justice. The book is organized chronologically, but some of his recollections seem a bit random. Discussions of death penalty jurisprudence bump up against a lengthy criticism of the redecorating of the justices’ conference room. Nonetheless, Justice Stevens’ graciousness, integrity, and love of the rule of law illuminate the volume.
So, back to my topic: no civil procedure nuggets. No discussion of why he couldn’t find some way to join Justice Brennan (or even Justice O’Connor) in Asahi and felt the need to strike out on his own. (He did mention that in law practice in Chicago, he represented “a surprisingly large number of entrepreneurs who were distributors of products manufactured by others – coin-operated washing machines, auto parts, calculating equipment, magazines, automobiles, and soft drinks,” but this did not lead to any discussion of stream-of-commerce.) No mention of Twombly and my favorite line of his dissent: “If Conley’s ‘no set of facts’ language is to be interred, let it not be without a eulogy.” No mention of Iqbal, even though he does discuss why he believes sovereign immunity has no place in a democracy. No mention of Shady Grove and that all-important portion of his concurrence with regard to Section 2072(b).
Good read, but don’t bother if all you wanted was an inside scoop on some leading civil procedure cases.
Mark Spottswood (Florida State University College of Law) has posted Evidence-Based Litigation Reform to SSRN.
Over the past several centuries, medical practice has undergone a striking revolution. Slowly but surely, practices based on ancient authorities and untested theories of disease, like purging and blood-letting, have given way to more effective therapies developed through systematic experimental testing, like antibiotics. This revolution may still be in progress, but few can deny that it has improved the quality of health care services. This article considers what lessons lawyers can learn from this evidence-based revolution in medicine, and whether a similar approach to designing rules of legal procedure and evidence could succeed.
Complex systems, like the body and the litigation environment, resist intuitive understanding. If one wishes to maximize a particular result in such environments, one must systematically measure the effects of various interventions on that result, whether it be the health of a patient or the accuracy of case-resolutions. For this reason, we should place little confidence in the accuracy of results generated by existing litigation procedures, because we have never conducted systematic investigations to identify which rules generate the most accurate outcomes. The costs of this ignorance, in terms of unjust outcomes in civil and criminal litigation, may be very high even if we cannot currently perceive them.
Unfortunately, measuring the accuracy of adjudication is much harder than keeping track of morbidity or mortality. If we wish to develop our own evidence-based litigation movement, we will need to design investigative approaches that can measure and compare the accuracy of the many different types of outcomes that can resolve disputes. Towards this end, I sketch one possible accuracy-measurement protocol in this Article, while acknowledging that it would be costly to implement. I also offer some commentary on the relevance of this discussion for current theorizing and practice, with a particular emphasis on the danger of making procedural design choices based on existing forms of empirical evidence and the risks of crafting national rules without drawing on a record of comparative rule experience.
Sunday, October 9, 2011
Forthcoming in the Kentucky Law Journal and posted on SSRN, Raymond Brescia has completed an empirical study of Iqbal's effect that, unlike past studies, attempts to focus solely on motions to dismiss going to the specificity of the pleadings.
The abstract for "The Iqbal Effect: The Impact of New Pleadings Standards in Employment and Housing Discrimination Litigation" follows.
Abstract: In May 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, a case brought by an immigrant of Pakistani descent caught up in the worldwide investigation that followed the horrific attacks of September 11, 2001. In that decision, the Court extended the “plausibility test” first introduced two years earlier, in Bell Atlantic v. Twombly, to all civil pleadings in federal court. That test requires that, in order to satisfy federal pleading requirements, a complaint must allege a plausible set of facts. But what is plausible in a given case may be in the eye of the beholder.
In the two years since the Court reached its decision in Iqbal, that opinion has been cited roughly 25,000 times. The empirical analysis contained in this study attempts to gauge the impact of Iqbal on civil rights cases, specifically cases involving allegations of employment and/or housing discrimination. While several other studies have attempted to answer similar questions, to date, no study has analyzed this impact with reference solely to motions based on the specificity of the pleadings: which is, of course, the central issue in Twombly and Iqbal. In addition, other studies looked exclusively at quantitative results, with no assessment of the manner in which the plausibility standard was being applied by the lower courts. This empirical study attempts to fill that gap in the empirical research.
This study identified over 1850 reported decisions on motions to dismiss in employment and housing discrimination cases filed in federal district court covering the years prior to and after the Court’s decision in Twombly. From this group of cases, a smaller sub-set, totaling 634 cases, was identified by excluding those decisions—included in previous studies—that bore no relation to the issue of the specificity of the pleadings. Furthermore, despite this winnowing process, the sample size for this study was still considerably larger than those analyzed in previous studies.
This detailed study yielded the following results. Surprisingly, the dismissal rate in this class of cases during a set time-period immediately prior to the Twombly decision was actually slightly higher than the dismissal rate of decisions issued in the time period between issuance of the Twombly and Iqbal decisions, but then the rate increases considerably after Iqbal. The dismissal rates for all cases pre-Twombly was 61%; between Twombly and Iqbal, it was 56%; but then after Iqbal, it was 72%, an 18% increase from the pre-Twombly period analyzed.
In addition, even more troubling, plaintiffs were far more likely after Iqbal than either before Twombly or immediately thereafter to face a motion to dismiss challenging the sufficiency of the pleadings in the cases analyzed. Indeed, decisions on such motions were generated only 12 times in the first quarter of 2004 (the first quarter analyzed in this study), but then 61 times in the third quarter of 2010 (the last full quarter analyzed): a greater than 500% increase.
Moreover, when it comes to the substance of these decisions, something else appears to be happening. Despite the increased dismissal rate following Iqbal, oddly, in a class of cases analyzed for this study, courts rarely invoked the plausibility standard in the same manner it was utilized by the Court in Twombly and Iqbal; that is, courts rarely found that dismissal was warranted if there was an arguably more plausible, and entirely legal, basis for the challenged conduct. Finally, and similarly, judges rarely, if ever, appear to invoke their own “experience and common sense,” as urged to by the Court, when ruling on motions to dismiss in these cases.
These outcomes yield three conclusions. First, district courts are using the Iqbal precedent, though not necessarily Twombly, to dismiss employment and housing discrimination cases at an accelerated rate. Second, although courts may be invoking the Twombly/Iqbal plausibility standard in assessing the sufficiency of the pleadings in employment and housing discrimination cases, they are certainly not relying on or utilizing the plausibility standard as articulated in these two precedents. This suggests that the subjective elements of the plausibility standard may be infecting these outcomes. That is, if district court judges are dismissing cases at a higher rate post-Iqbal, yet are not relying on the guidance the Court has given such lower courts in how to deploy the plausibility standard, it would seem that such courts may feel emboldened to dismiss cases that might have survived such a motion had that motion been decided pre-Iqbal. Finally, regardless of whether there is a dramatic Twombly or Iqbal effect on outcomes, motions to dismiss challenging the sufficiency of the pleadings are much more common since Iqbal, which means that even if some plaintiffs are defeating such motions, it still comes at a price: it increases transactions costs in these cases, and may, as a result, have a chilling effect on lawyers contemplating bringing them in the first place.
Saturday, October 8, 2011
Tipped by a Justia article by John Dean (and who knew John Dean was an advocate for “the 99%”?), I visited a web site called ALEC Exposed, maintained by the Center for Media and Democracy. ALEC is the acronym for the innocuous-sounding American Legislative Exchange Council, a corporate-funded clearinghouse that for at least a decade has been “ghost writing” business-friendly legislation that is introduced into state legislatures.
Perusing the more than 800 such “model” bills, I was quickly drawn to the category Tort Reform, Corporate Liability, and the Rights of Injured Americans. Yep, there they were – some 68 bills with familiar double-speak “tort reform” titles like "Class Actions Improvements Act," "Private Enforcement of Consumer Protection Statutes," and "Noneconomic Damage Awards Act."
Sunday, October 2, 2011
My guest month has drawn to a close; thanks for reading me. Contest winner (although I had to break a tie): "Perhaps the adage about hard cases making bad law should be revised to cover easy cases." Burnham v. Superior Court of California, 495 U.S. 604, 640 (1990) (Stevens, J., concurring).