Civil Procedure & Federal Courts Blog

Washburn Law Journal Symposium--Publication Opportunity

The Washburn Law Journal is constructing its Spring 2012 issue around the topic of resource allocation and the law. Specifically, the issue will focus on how attempts to conserve resources during the economic recession may impact the justice system. Several authors are already committed to the issue and will discuss topics including prosecutorial discretion as a vehicle to conserve state resources, questions surrounding the use of prison labor, and how new procedural rules may inhibit the ability of plaintiffs to access the court system.  The Journal is seeking proposals from additional scholars that would like to contribute to the issue. Please contact the Articles Editor, Andrew Newcomer at [email protected] with any proposals or questions.

Sheppard on Decreasing Judicial Resources

Brian Sheppard (Seton Hall University School of Law) has posted Judging Under Pressure: The Relationship Between Decreasing Judicial Resources and Legal Constraint to SSRN.

Abstract:      
The long-running debate about whether judges have adequate resources has begun to boil. State and federal legislatures are slashing court budgets, with many courts receiving up to 20 percent reductions. In recent years, judges have been resigning or retiring in droves. The remaining judicial vacancies are often left unfilled. Those judges that remain will be forced to spend considerably less time on each case. 

In response to this impending crisis, scholars have just begun systematically and empirically to consider how resource limitation affects judging. These studies are of vital importance, not only because they are so topical, but also because they have found evidence of a potential link between the amount of resources that appellate judges have and the likelihood that they will be deferential to the lower courts or to their colleagues. For example, a reduction in available resources correlates with lower reversal rates. 

Because this academic movement is in its infancy, however, its techniques and findings leave plenty of room for growth. No one has yet analyzed how the availability of resources affects the accuracy of judicial decisions. The answer is a pivotal concern for those in control of court budgets and personnel. If judges are able to do their jobs as well or better with less (and they are willing to accept less), then cutting budgets could very well be a wise savings measure. If judges make more errors or become so dissatisfied that they no longer want to continue, then stripping courts of resources could be very dangerous, if not destructive.

Here, I use behavioral experimentation to show how the amount of resources available to judges interacts with the power of law to constrain them. Using a judicial simulation with law students from several law schools, I uncover evidence suggesting that reducing resources can increase the likelihood that judges will follow the straightforward dictates of the law. Before budget cutters rejoice, however, it appears that this enhancement to legal constraint comes with a cost - namely, a significant reduction in the judges’ sense that they have reached righteous results. The evidence supports the idea that boosting constraint in this way might increase judge dissatisfaction, perhaps exacerbating the problem of bench vacancies.

RJE

Pilot Project on Initial Discovery Protocols for Employment Cases

Now available on the Federal Judicial Center’s website are Initial Discovery Protocols for Employment Cases Alleging Adverse Action. From the Introduction:

The Initial Discovery Protocols for Employment Cases Alleging Adverse Action provide a new pretrial procedure for certain types of federal employment cases. As described in the Protocols, their intent is to “encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.” Individual judges throughout the United States District Courts will pilot test the Protocols and the Federal Judicial Center will evaluate their effects.

This project grew out of the 2010 Conference on Civil Litigation at Duke University, sponsored by the Judicial Conference Advisory Committee on Civil Rules for the purpose of re-examining civil procedures and collecting recommendations for their improvement. During the conference, a wide range of attendees expressed support for the idea of case-type-specific “pattern discovery” as a possible solution to the problems of unnecessary cost and delay in the litigation process. . . . Following the conference, Judge Lee Rosenthal convened a nationwide committee of attorneys, highly experienced in employment matters, to develop a pilot project in this area. Judge John Koeltl volunteered to lead this committee. By design, the committee had a balance of plaintiff and defense attorneys. . . . The committee’s final product is the result of rigorous debate and compromise on both sides, undertaken in the spirit of making constructive and even-handed improvements to the pretrial process.

The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use a basis for discussion.

--A

(Hat Tip: Emery Lee)

Robertson on The Merits Problem in Personal Jurisdiction

Cassandra Burke Robertson (Case Western University School of Law) has posted The Inextricable Merits Problem in Personal Jurisdiction to SSRN.

Abstract:      
In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in cases involving modern “commerce and communication.” When the Court chooses to accept such a case, it will likely be to resolve an emerging issue that has divided lower courts - the proper scope of the Calder effects test. 

This Article seeks to limit the reach of the effects test. It argues that many of the conflicting cases in this area can be reconciled only by acknowledging courts’ implicit assumptions about the underlying merits of the case. The Article then demonstrates that once these assumptions are made explicit, the merits of the cases are so inextricably intertwined with the jurisdictional issues that courts cannot resolve the jurisdictional question without fully trying the case on the merits - an action that would require the defendant to forfeit the very constitutional interests that the personal jurisdiction doctrine was developed to protect. Finally, the Article examines how the development of the Internet destroyed previous assumptions about the litigation resources of likely defendants. It concludes that narrowing the effects-test doctrine would minimize the cost of forum selection for both plaintiff and defendant, would promote online commercial development, and would better protect a robust speech environment.

 

RJE

Thomas on the Summary Judgment Trilogy

Prof. Suja Thomas (Illinois) has posted on SSRN Before and After the Summary Judgment Trilogy, which is forthcoming in the Loyola University Chicago Law Journal. It was the keynote speech for Seattle University’s recent 25th Anniversary Summary Judgment Trilogy Colloquium, covered earlier here.

Here’s the abstract:  

In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.

--A

Maxeiner on American Civil Justice in International Perspective

James Maxeiner (University of Baltimore) has recently published a book entitled Failures of American Civil Justice in International Perspective.

Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system.

The book is available from Cambridge University Press and on Amazon.

RJE

Baude on Choice of State Law in Federal Statutes

William Baude has posted on SSRN an article entitled “Beyond DOMA: Choice of State Law in Federal Statutes,” forthcoming in Stanford Law Review. 

            Abstract:

Stanford Law Review, Vol. 64, 2012

The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state lines. Unless a federal choice of law system is designed, DOMA’s demise will lead to chaos.

This paper argues that such a system can and should be designed: Because the underlying choice-of-law problem is ultimately a problem of statutory interpretation, Congress can and should replace it with a clear choice-of-law rule. Failing that, federal courts can and should develop a common law rule of their own - they are not (and should not be) bound by the Supreme Court’s decision in Klaxon v. Stentor Electric. The paper further argues that different institutions should solve the problem differently: If Congress acts, it should recognize all marriages that were valid in the state where they took place. If, instead, the courts create a common-law rule, they should recognize all marriages that are valid in the couple’s domicile.

The implications of this argument run far beyond the demise of DOMA. In all areas of what is here called “interstitial law,” federal interpretive institutions can and should devise a set of choice-of-law rules for federal law that draws upon state law, and what set of rules is proper may well depend on who adopts them.

--PM

 

Preemption Day: SCOTUS Oral Arguments in National Meat, Kurns

The Supreme Court heard oral argument today in two preemption cases: National Meat Association v. Harris and Kurns v. Railroad Friction Products Corp.

Here are the oral argument transcripts:

• National Meat Association v. Harris
• Kurns v. Railroad Friction Products Corp.

--A

FJC posts updated study on 12(b)(6) motions granted with leave to amend

In its March 2011 study of the possible effect of Twombly and Iqbal on the resolution of 12(b)(6) motions, the FJC noted that it would look further at the eventual outcome of cases in which a 12(b)(6) motion was granted, but with leave to amend. 

That updated study has just been posted here. 

Thanks to Joe Cecil at the FJC for alerting me to the posting.

--PM

 

Dispute Resolution in the Next 40 Years: Repertoire or Revolution? (Sydney, Dec. 1-2)

The Faculty of Law at the University of New South Wales is holding a conference entitled “Dispute Resolution in the Next 40 Years – Repertoire or Revolution.”  It’s part of UNSW Law’s 40th Anniversary celebrations and will take place in Sydney, Australia on December 1-2, 2011. From the brochure:

Dispute Resolution is adapting and developing in response to the demands of Australian society and the global community. A greater range of dispute resolution mechanisms have developed and courts have sought to improve and streamline their procedures.

UNSW Law's 40th Anniversary Conference Dispute Resolution in the Next 40 Years – Repertoire or Revolution examines how dispute resolution may develop in the future and what the ramifications of those developments may be. This important question is addressed by the keynote speakers Lord Justice Jackson, Lord Justice of Appeal, UK Court of Appeal and author of the UK “Review of Civil Litigation Costs” and The Hon Thomas F Bathurst, Chief Justice, Supreme Court of NSW.

The conference brings together an outstanding collection of internationally and nationally renowned thoughtleaders to address important practical questions such as the future role of the judge, matching dispute resolution processes with disputes, the provision of access to justice to multiple claimants through class actions, the role of lawyers in alternative dispute resolution processes, the future options for international dispute resolution and reform of civil procedure through international comparisons.

More information available here.

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(Hat Tip: Michael Legg)

Fourth Annual Junior Faculty Federal Courts Workshop

Florida International University College of Law is hosting the Fourth Annual Junior Faculty Federal Courts Workshop in Miami on February 2-4, 2012. If you’re interested in participating, the deadline for submitting an abstract is Tuesday, November 15.

More details available at PrawfsBlawg.  

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(Hat Tip: Howard Wasserman)

Spier and Rosenberg on Structural Bias in the Litigation of Common Question Claims

Kathryn E. Spier (Harvard Law School, NBER) and David Rosenberg (Harvard Law School) have posted On Structural Bias in the Litigation of Common Question Claims to SSRN.

Abstract:      
This essay focuses on civil litigation that involves multiple plaintiffs suing a single defendant for damages or equitable remedies on causes of action that raise the same or similar legal and factual claims and / or defenses. Such common question claims comprise a large fraction of U.S. civil actions, ranging from the relatively simple traffic accident involving personal injury claims by two or more occupants of one car charging the driver of the other car with negligence to large-scale litigation consisting of numerous plaintiffs suing a business or government defendant on costly and complex claims. Examples of large-scale common question litigations include claims of products liability, securities fraud, deceptive consumer practices, corporate misgovernance, environmental pollution, employment discrimination, and unconstitutional state action. All common question litigation proceeds either by plaintiffs prosecuting their claims respectively in separate, individual actions or collectively in joint actions, voluntarily formed or judicially mandated such as by class action. 

Using an analytical model, we explore the effects of the mode of action – separate versus joint – on the plaintiffs’ and the defendant’s respective incentives to invest in litigating outcome-determinative common questions. We demonstrate a general and heretofore largely unrecognized correlation between separate actions and litigants’ investment incentives that implies the existence of a structural bias favoring defendants in common question litigation. Essentially, in a given separate action the defendant spends to defeat all plaintiffs, while each individual plaintiff spends only to win for himself; in a joint action, both sides have equivalent aggregate investment incentives and hence there is no structural bias. Analytical demonstration of why and how such asymmetric investment incentives arise and structurally bias outcomes in separate but not joint actions sets the stage for consideration of the public policy implications. In particular, we discuss the potentially adverse consequences of vesting defendants with such superior litigation power over plaintiffs in separate actions for achieving the primary social objective of civil liability, deterrence of unreasonably risky behavior.

RJE

Symposium on CERCLA and the Future of Liability-Based Environmental Regulation (Southwestern Law School, Nov. 11)

The Southwestern Law Review is hosting a symposium on November 11, 2011 entitled CERCLA and the Future of Liability-Based Environmental Regulation. From the announcement:

Enacted in 1980, CERCLA takes a unique approach to federal environmental regulation. Unlike other major federal environmental statutes, CERCLA addresses soil and groundwater contamination through a tort-like liability scheme imposing joint and several, retroactive liability on broad classes of covered persons to clean up contaminated property. With billions of dollars in aggregate cleanup costs at stake, CERCLA has generated substantial and unrelenting litigation over the past three decades that will likely continue for years to come.

CERCLA presents challenging issues about the relationship between federal and state pollution laws on topics ranging from regulatory oversight to toxic torts. Some accuse CERCLA's broad liability scheme and remediation process requirements (the "national contingency plan") of fostering sprawl by discouraging in-fill property development. Others object to federal and state "brownfield" laws promoting more streamlined in-fill remediation on environmental justice grounds. The U.S. Supreme Court's recent decisions in Aviall, Atlantic Research and Burlington Northern raised new questions about the scope of CERCLA liability, the extent of public and private cost recovery rights, and incentives for polluters to settle CERCLA liabilities with regulatory authorities.

The full schedule is available here.

--A

(Hat Tip: Ron Aronovsky)

Federal Judicial Center Report on the Timing of Scheduling Orders and Discovery Cut-Off Dates

The Federal Judicial Center has released a report to the Advisory Committee on Civil Rules entitled The Timing of Scheduling Orders and Discovery Cut-Off Dates, authored by Emery G. Lee III. Here’s the executive summary:

This report summarizes findings on the timing of scheduling orders and discovery cut-off dates in more than 11,000 civil cases filed in 11 districts in 2009 and 2010. The first part of the report examined times from the filing of the case to issuance of the first scheduling order.

• The median time from filing to first scheduling order was 106 days, or 3.5 months (N = 11,483). The comparable mean was 126.1 days, or 4.1 months.

• The 11 districts studied had median times from filing to first scheduling order that ranged from 77 days, or 2.5 months, to 125 days, or 4.1 months, for a difference of 1.6 months.

• The nature-of-suit category with the shortest median time from filing to first scheduling order was torts, at 97 days, or 3.2 months. Complex and the catch-all other cases had longer medians (121 and 122 days, or 4 months).

The same analysis was performed for times from entry of the first scheduling order to first imposed discovery cut-off (i.e., the discovery cut-off date in the scheduling order).

• The median time from entry of the first scheduling order to first imposed discovery cut-off, without regard to any extension, was 187 days, or 6.2 months (N = 11,348). The comparable mean was 198.6 days, or 6.5 months.

• The 11 districts had median times from entry of the first scheduling order to first imposed discovery cut-off that ranged from 143 days, or 4.7 months, to 240 days, or 7.9 months, for a difference of 3.2 months.

• The nature-of-suit category with the shortest median time from entry of the first scheduling order to first imposed discovery cut-off was the catch-all other category, at 157 days, or 5.2 months. The contracts (6.6 months) and complex (7.1 months) categories had the longest observed medians.

These two analyses can be combined to capture the time from the filing of the case to first imposed discovery cut-off date.

• The median time from filing to first imposed discovery cut-off for all cases (N = 11,281) was 312 days, or 10.2 months. The comparable mean was 324 days, or 10.7 months.

• Districts ranged from a median time from filing to first imposed discovery cut-off of 252 days, or 8.3 months, to 378 days, or 12.4 months, for a difference of 4.1 months.

• In terms of nature-of-suit categories, the category with the shortest median time from filing to first imposed discovery cut-off was consumer, at 295 days, or 9.7 months. The longest median time from filing to first imposed discovery cut-off was observed in complex cases, 359 days, or 11.8 months (or about one year).

--A