Civil Procedure & Federal Courts Blog

Symposium on the Supreme Court's 2011 Personal Jurisdiction Decisions: McIntyre and Goodyear

The South Carolina Law Review’s symposium issue, “Personal Jurisdiction for the Twenty-First Century: The Implications of McIntyre and Goodyear Dunlop Tires,” is now available online:

Keynote Address

Arthur R. Miller, McIntyre in Context: A Very Personal Perspective

Articles

Adam N. Steinman, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro

John Vail, Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro

Allan R. Stein, The Meaning of "Essentially at Home" in Goodyear Dunlop

Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan

Linda J. Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

Lea Brilmayer & Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and J. McIntyre Machinery v. Nicastro

Paul D. Carrington, Business Interests and the Long Arm in 2011

Rodger D. Citron, The Case of the Retired Justice: How Would Justice John Paul Stevens Have Voted in J. McIntyre Machinery, Ltd. v. Nicastro?

Meir Feder, Goodyear, "Home," and the Uncertain Future of Doing Business Jurisdiction

Collyn A. Peddie, Mi Casa Es Su Casa: Enterprise Theory and General Jurisdiction over Foreign Corporations After Goodyear Dunlop Tires Operations, S.A. v. Brown

Wendy Collins Perdue, What's "Sovereignty" Got to Do with It? Due Process, Personal Jurisdiction, and the Supreme Court

Howard B. Stravitz, Sayonara to Fair Play and Substantial Justice?

--A

Court Grants Cert in Fair Debt Collection Case, Denies Cert on Remittitur Issue

From The Supreme Court Insider:

[On] Tuesday, the justices granted review in a case involving the Fair Debt Collections Practices Act — Marx v. General Revenue Corp. The Court will decide whether a prevailing defendant in a lawsuit under that law may be awarded costs when the lawsuit was not brought in bad faith or for the purpose of harassment.

From the ABA Journal online:

The U.S. Supreme Court won’t hear the case of Joel Tenenbaum, a doctoral graduate who was originally ordered to pay $675,000 for downloading copyrighted music.

The trial judge had found the verdict was constitutionally excessive and reduced the amount to $67,500. On appeal the Boston-based 1st U.S. Circuit Court of Appeals ruled the judge should have avoided the constitutional question through remittitur. The court reinstated the $675,000 award, but ordered the trial judge to consider remittitur.

A Supreme Court petition filed by Harvard University law professor Charles Nesson had objected to the remittitur procedure because it allows the plaintiffs to reject the reduced award and opt for a retrial. “The 1st Circuit’s misuse of remittitur threatens to push the defendant down an endless litigation rathole,” Nesson argues. The prospect of a “retrial merry-go-round” forces defendants to settle, avoiding the constitutional issues, he wrote.

SCOTUSblog and Wired’s Threat Level blog reported on the cert denial.

PM

2013 AALS Section on Litigation - Call for Papers

From the Civil Procedure Profs listserv:

Dear AALS Litigation Section Members:

I am writing as Chair
of the AALS Section on Litigation to inform you of the Call for Papers
associated with the Section's Program at the 2013 Annual Meeting scheduled for
January 4-7, in New Orleans, Louisiana. The Program is titled "The Class Action
Fairness Act of 2005: Perspectives and Predictions". A pdf version of the Call
for Papers is attached and the text of the Call appears below for your
convenience.

The author of the selected paper will be invited to join a
panel that includes: John Beisner (Skadden Arps), Elizabeth Cabraser (Lieff,
Cabraser, Heimann & Bernstein), Richard Marcus (UC Hastings), Linda Mullenix
(U. of Texas), Jay Tidmarsh (Notre Dame) and Georgene Vairo (Loyola of
LA).

My best,

Kenneth Kandaras
Professor of Law
John
Marshall Law School
315 South Plymouth Court
Chicago, IL.
60604
312-987-1421
[email protected]

Call for Papers

AALS
Section on Litigation
AALS Annual Meeting, January 4-7, 2013, New
Orleans,Louisiana
“The Class Action Fairness Act of 2005: Perspectives and
Predictions”


In connection with the January 2013 Annual Meeting of
the Association of American Law Schools in New Orleans, Louisiana, the Section
on Litigation will be sponsoring a panel discussion entitled: “The Class Action
Fairness Act of 2005: Perspectives and Predictions”. The Sections on Civil
Procedure and Federal Courts are co-sponsoring the program.

Upon its
enactment, CAFA’s supporters hailed the statute as a needed remedy to combat
abusive state court class action proceedings as well as an important means to
achieve tort reform. With several years-on since CAFA’s enactment, the panel
will explore some of the significant issues that CAFA poses for litigants and
the legal community as a whole. The panelists include:John Beisner (Skadden
Arps), Elizabeth Cabraser (Lieff, Cabraser, Heimann & Bernstein), Richard
Marcus (UC Hastings), Linda Mullenix (U. of Texas), JayTidmarsh (Notre Dame),
and Georgene Vairo (Loyola of LA).

The Program will include a speaker
selected from this Call for Papers.

Eligible papers may address any topic
related to CAFA, including topics that consider its effectiveness in achieving
its stated aims, its influence on litigation strategies, and its impact on the
legal community and society as a whole. Both essay and article length papers are
welcome. The selected author will be invited to participate in the Program, at
the expense of the author’s institution. The Review of Litigation at the
University of Texas has agreed to publish the paper of the selected author and
other articles submitted by program panel members (subject to the Review’s final
approval of the articles) in its Symposium issue. The Review is well-known for
its publication of scholarship related to litigation, civil procedure and
dispute resolution.

The deadline to submit a draft paper is Thursday,
September 6, 2012. Please submit the draft paper to Professor Kenneth Kandaras,
Chair of the Section of Litigation, as an attachment to an e-mail sent to
Professor Kandaras at [email protected]. The attachment should be in Word or PDF
format. Late submissions will not be accepted. A subcommittee of the Section’s
Executive Committee will review the submissions. Decisions will be communicated
no later than October 1,
2012.

________________________________
Attachments:
Litigation
Section_Call for Papers 2013.pdf (42 k): https://connect.aals.org/p/fo/do/download=1&fid=5151

View
post online: https://connect.aals.org/p/fo/st/post=21333&anc=p21333#p21333

PM

D.C. Circuit Holds No Personal Jurisdiction Over the Port Authority of Liberia

Plaintiff, a construction company incorporated in the British Virgin Islands and headquartered in Israel, and defendant, the National Port Authority of Liberia, entered into a contract to build and operate a container park in Monrovia, Liberia's capital. Shortly thereafter, however, the government of Liberia changed, and the new government repudiated the contract for alleged failure to comply with competitive bidding procedures. Plaintiff initiated an arbitration proceeding in London, and the arbitrator awarded over $44,000,000 in damages to plaintiff. Plaintiff then filed an action to confirm the arbitration award against defendant in the D.C. district court. The district court dismissed the action for lack of personal jurisdiction.

On appeal, the D.C. Circuit held that the Foreign Sovereign Immunities Act provided statutory personal jurisdiction over the Port Authority, but that the Fifth Amendment Due Process Clause also required constitutional personal jurisdiction. The Port Authority, although state-owned, established its juridical separateness from the government of Liberia, which, as a foreign state, was not a "person" protected by the Fifth Amendment. Because the plaintiff failed to show minimum contacts of the Port Authority with the United States, the court affirmed the district court's dismissal for lack of personal jurisdiction. GSS Group Ltd. v. National Port Authority, No. 11-7093 (D.C. Cir. May 25, 2012).

PM

Malveaux on Sullivan on Iqbal and Employment Discrimination

Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.

--A

Court Holds "Compensation of Interpreters" Limited to Oral Translation as Part of Costs

Justice Alito's opinion for the Court in Taniguchi v. Kan Pacific Saipan, Ltd., No. 10-1472 (May 21, 2012) begins:

The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U. S. C. §1920. The Court Interpreters Act amended that statute to include “compensation of
interpreters.” §1920(6); see also §7, 92 Stat. 2044. The question presented in this case is whether “compensation of interpreters” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation.

PM

SCOTUS Cert. Grant of Interest: Article III Standing to Challenge Federal Wiretapping Procedures

Today the Supreme Court granted certiorari in Clapper v. Amnesty International USA, a case we covered earlier here and here. The question presented is:

Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

The Solicitor General’s question presented also provides the following background on the issue:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)—referred to here as Section 1881a—allows the Attorney General and Director of National Intelligence to authorize jointly the “targeting of [non-United States] persons reasonably believed to be located outside the United States” to acquire “foreign intelligence information,” normally with the Foreign Intelligence Surveillance Court’s prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.

You can find links to the Second Circuit’s opinion below and the cert-stage briefing at SCOTUSblog’s casefile.

--A

Now in Print: Papers from Summary Judgment Colloquium

We covered earlier the Summary Judgment Colloquium that was held at Seattle University last year. The articles and essays from that event are now in print and available here, published by the Loyola University Chicago Law Journal.

--A

Appellate Jurisdiction and Abu Ghraib

A few days ago, the U.S. Court of Appeals for the Fourth Circuit issued an en banc decision in lawsuits brought against two military contractors by individuals detained at the Abu Ghraib prison in Iraq. The contractors had moved to dismiss the claims on several grounds, but these motions were denied by the lower courts. The three-judge Fourth Circuit panel agreed with the contractors and reversed.

Now the en banc Fourth Circuit has dismissed the case for lack of appellate jurisdiction, rejecting the contractors’ argument that the collateral order doctrine allows an immediate appeal of the district courts’ rulings. The decision is Al Shimari v. CACI International (No. 09-1335). The vote is 11-3, with Judge King writing the majority opinion (36 pages). There are two dissenting opinions written by Judge Wilkinson (40 pages) and Judge Niemeyer (35 pages), as well as two brief concurring opinions by Judge Duncan and Judge Wynn.

For additional coverage, check out these posts by Lyle Denniston (SCOTUSblog) and Steve Vladeck (Lawfare).

--A

(Hat Tip: Jonathan Hafetz)

Wasserman on Rejecting Sovereign Immunity In Public Law Litigation

Howard Wasserman (FIU) has published Rejecting Sovereign Immunity in Public Law Litigation in Fordham's Res Gestae.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

RJE

Class Action Certified in NYC Stop-and-Frisk Lawsuit

Today the U.S. District Court for the Southern District of New York granted class certification in a lawsuit challenging the NYPD’s stop-and-frisk program. The class is defined as “[a]ll persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.”

Judge Shira Scheindlin’s 56-page opinion addresses several aspects of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, noting that “even after Wal-Mart, Rule 23(b)(2) suits remain appropriate mechanisms for obtaining injunctive relief in cases where a centralized policy is alleged to impact a large class of plaintiffs, even when the magnitude (and existence) of the impact may vary by class member” and that “[s]ince Wal-Mart, at least three district courts have granted class certification in cases alleging Fourth and Fourteenth Amendment violations due to a police department’s policy and/or practice of making unlawful stops and arrests; all of these courts have rejected the notion that the individual circumstances of a stop defeat commonality.” She also writes (footnotes omitted):

Plaintiffs allege that their Fourth and Fourteenth Amendment rights are violated as a result of the NYPD’s policies and practices. As they argue, these claims raise “central and core questions of fact and law that, when answered, will resolve all class members’ Monell claims against the City.” In the terminology of Wal-Mart, a class wide proceeding here will “generate common answers” to these questions that are “apt to drive the resolution of the litigation.”

For additional coverage, check out WNYC.org (Ailsa Chang).

--A

Garrett on Aggregation and Constitutional Rights

Prof. Brandon Garrett (Virginia) has posted on SSRN his article, Aggregation and Constitutional Rights, which is forthcoming in the Notre Dame Law Review. Here’s the abstract:

Constitutional rights can impact large groups, yet most plaintiffs in civil rights cases bring individual claims. Critics of the Supreme Court’s decisions regarding class actions, such as the decision last Term in Dukes v. Wal-Mart, have argued that the Court is generally limiting the ability of plaintiffs to bring class actions through procedural limitations, such as the Wal-Mart Court’s heightening of the commonality requirement. I trace the problem deeper into the substance of constitutional doctrine. The Court has defined certain constitutional rights to require highly individualized inquiries. For example, Fourth Amendment excessive force claims, the bread and butter of constitutional tort litigation, often require an individual analysis of the reasonableness of the search. As a result, courts may deny class certification citing to a lack of common issues. Other constitutional rights - ranging from due process rights, criminal procedure rights, equal protection claims, and takings claims - similarly resist aggregate treatment. The Wal-Mart ruling - although procedural - will have a disproportionate impact on particular substantive areas of the law, even within civil rights litigation. I suggest that this confluence of procedural rulings and change in constitutional doctrine was not anticipated and nor is it desirable. I explore changes to sub-constitutional remedial doctrine and statutes that could rekindle aggregate constitutional litigation. Aggregation would benefit more than just the plaintiffs who bring these cases. If constitutional litigation becomes a purely solitary affair, sporadic cases may have an outsized impact, but in an ad hoc way that provides poor notice to government officials. Aggregation can improve clarity, legitimacy, participation, and representation. Bigger lawsuits may sometimes be better - particularly when developing constitutional values.

--A

(Hat Tip: Larry Solum)

Examining the Three Opinions in J. McIntyre Machinery v. Nicastro

Now on SSRN is my article, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro, which was part of a recent symposium on the Supreme Court’s two personal jurisdiction decisions from last Term. Here’s the abstract:

It was a long time coming. The Supreme Court's decisions last Term in J. McIntyre Machinery, Ltd. v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown ended a two-decade high-court hiatus from the subject of personal jurisdiction. In McIntyre, the more controversial of the two, the Court concludes that New Jersey state courts lacked jurisdiction over a British manufacturer in a suit by a New Jersey plaintiff who was injured in New Jersey by a machine purchased by his New Jersey employer. McIntyre lacks a majority opinion, however. Instead we have a four-Justice plurality authored by Justice Kennedy, a three-Justice dissent authored by Justice Ginsburg, and a scale-tipping concurrence written by Justice Breyer and joined by Justice Alito.

This article for the South Carolina Law Review's symposium on McIntyre and Goodyear examines the three McIntyre opinions. It argues that McIntyre should not be read to impose significant new restraints on jurisdiction. Although there are aspects of Justice Kennedy's plurality that suggest a more restrictive approach, Justice Breyer's concurrence explicitly rejects Justice Kennedy's reasoning. Justice Breyer does agree that jurisdiction was not proper in McIntyre, but that conclusion is premised on a very narrow understanding of the factual record. Correctly understood, Justice Breyer's approach would allow jurisdiction in a similar case -- even one where only a single sale is ultimately made to an in-state purchaser -- provided the record is slightly more developed on the presence of potential customers in the forum state. In terms of the overarching legal principles, Justice Breyer's concurrence has more in common with Justice Ginsburg's dissent than Justice Kennedy's plurality.

Thanks again to the folks at South Carolina, who did an excellent job with the symposium. It was a pleasure to be a part of it.

--A

A Bond Sequel?

No, this post isn’t about Daniel Craig dusting off his tuxedo (although apparently another installment of that Bond series is scheduled for a November 2012 release). This is a follow up to last June’s Supreme Court decision in Bond v. United States, 131 S. Ct. 2355 (2011), covered earlier here, here, and here.

The facts of the case are intriguing. See, e.g., 131 S. Ct. at 2360 (“After discovering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge.”). The Supreme Court held that Bond had standing to challenge her conviction under 18 U.S.C. § 229, a statute implementing the 1993 Chemical Weapons Convention, as exceeding Congress’s power and violating the Tenth Amendment. So the case went back to the Third Circuit to consider the merits of her constitutional challenge, which is interesting in its own right. Yesterday, the Third Circuit issued its decision on remand. From the introduction to Judge Jordan's opinion of the court:

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond’s conviction.

Judge Jordan notes that “[t]he decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.” But he concludes: “In short, because the Convention pertains to the proliferation and use of chemical weapons, which are matters plainly relating to war and peace, we think it clear that the Convention falls within the Treaty Power’s core. Consequently, we cannot say that the Act disrupts the balance of power between the federal government and the states, regardless of how it has been applied here.”

The other two judges on the panel each write separate concurring opinions. Judge Rendell writes to “consider two questions raised by her argument: What is legally wrong with the Act, which reaches Ms. Bond’s conduct?; and, What is wrong with the Act’s application to Ms. Bond, given the structure of federal-state relations? The answer to both is: Nothing.”

And from Judge Ambro's concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” 252 U.S. 416, 432 (1920). . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

 --A

(Hat Tip: Howard Bashman)

Preliminary Approval Granted for Deepwater Horizon Settlement

The story is reported by the National Law Journal here.  The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.

Class members have until August 31 to object and until October 1 to opt out.  The final fairness hearing is set for November 8.

PM

5th Annual Junior Faculty Federal Courts Workshop

William and Mary Law School will host the Fifth Annual Junior Faculty Federal Courts Workshop on October 25-27, 2012.

The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this fall: Curtis Bradley (Duke), John Jeffries (Virginia), Trevor Morrison (Columbia), Linda Mullenix (Texas), and James Pfander (Northwestern). 

The conference will begin with a dinner on Thursday, October 25.  We will then have panels all day Friday, followed by a dinner Friday evening.  If we need more time, we will hold one or two additional panels on Saturday morning.  Each panel will consist of a few junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.

 The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Procedure, Civil Rights, and associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2013 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee. 

William and Mary will cover all meals for those attending the workshop, including the welcome dinner on Thursday and the dinner on Friday. The law school has arranged for a discounted block of rooms at the Fairfield Inn in Williamsburg, as well as transportation to the law school.

Those wishing to present a paper must submit an abstract by Monday, June 18. Papers will be selected by a committee of past participants; presenters will be notified by Monday, July 9. Anyone wishing to submit may send an abstract to Tara Grove at [email protected].

RJE

 

Lynch on Discovery Stays

Prof. Kevin Lynch (Denver) has posted on SSRN his article, When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending, which appears in the Wake Forest Law Review. Here’s the abstract:

Discovery plays a central role in our judicial system, and while discovery provides many benefits to the parties and to the courts, it also imposes burdens and costs. Discovery reduces informational asymmetries, clarifies claims and defenses for trial, and encourages settlement. But it costs money to take depositions of witnesses, produce documentary evidence, and pay for the time of experts and lawyers. When a motion to dismiss is filed, the possibility that discovery will not be necessary presents a risk of wasted resources if discovery is not stayed while the motion to dismiss is resolved. However if discovery is stayed and the motion to dismiss is ultimately denied, even in part, then the entire case was delayed unnecessarily. Delay also presents a risk of deterioration of evidence as documents are lost, memories fade, or witnesses become unavailable. These are the considerations that judges must weigh against one another when deciding a motion to stay discovery due to a pending motion to dismiss.

Despite the importance of judicial decisions regarding discovery stays, this issue has received hardly any attention from legal scholars. This may be due to the relative scarcity of appellate decisions laying out standards for deciding motions to stay discovery, or it may be due to the difficulties in gathering reliable data on the discovery process. This Article fills this gap by examining what judges are doing currently on motions to stay discovery and recommending prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure. Relying on extensive research into federal court cases discussing discovery stays, the Article identifies eight primary considerations that affect discovery stays and provides guidance to judges regarding the appropriate standard to apply based on the characteristics of individual cases, focusing on the benefits of efficiency and transparency.

The Article proceeds in five parts. Part I lays out the issue of discovery stays when a motion to dismiss is pending. Part II provides background on the costs and burdens of discovery, the various interests at stake, and the judicial role overseeing discovery. Part III presents the current state of the law by looking at the various standards that courts have explicitly applied when deciding motions to stay discovery. Part IV develops a framework for understanding and reconciling existing precedent on discovery stays with reference to eight primary considerations. Part IV also lays out a prescription for judges to use in exercising their discretion in this context. Part V examines the broader issue of “discovery abuse” and specific cases where discovery is automatically stayed while also noting areas for further inquiry into this issue.

--A

Campos on Brown on Specious Claims & Global Settlements

Now available on the Courts Law section of JOTWELL is an essay by Prof. Sergio Campos (Miami) entitled Striking Out Specious Claims in Mass Tort Global Settlements. It reviews a forthcoming article by Prof. S. Todd Brown (SUNY Buffalo), Specious Claims and Global Settlements.

The review begins:

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.”  In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.”  The opposite is true in mass tort litigation.  In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims.  It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.  In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem.

--A