Civil Procedure & Federal Courts Blog

Call for Papers: Branstetter Litigation and Dispute Resolution at Vanderbilt

VANDERBILT LAW SCHOOL
BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP CALL FOR PAPERS

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2013 New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School.

The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. Held annually, the Branstetter New Voices Workshop brings together junior scholar authors, invited senior scholars, and Vanderbilt faculty in the areas of civil justice.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. Past participants include Nora Freeman Engstrom (Stanford), Myriam Gilles (Cardozo), Alexandra Lahav (Connecticut), Margaret Lemos (Duke), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Penn).

The New Voices format maximizes collegial interaction and feedback. Paper authors thus do not deliver prepared “presentations” as such. Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

Submission requirements.
1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined.

Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

2. Author qualifications. To be eligible to submit a paper, scholars must currently hold a permanent faculty position. In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2005.

3. Format / Anonymity. Papers may be submitted in either Microsoft Word or Adobe Acrobat format. To maintain the anonymity of the process, please remove any self-identifying information from the submission.

4. Deadline. Submissions should be e-mailed to [email protected] no later than January 1, 2013. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15.

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. If you have any questions, please email the chair of the selection committee, Ed Cheng, at [email protected] 

RJE

No SCOTUS Opinion in Article III Standing Case: First American Financial v. Edwards

With millions tuning in to hear the Supreme Court’s final day of decisions, many were disappointed to hear today’s ruling in…

First American Financial Corp. v. Edwards.  

The writ of certiorari was dismissed as improvidently granted in a one-sentence order.

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Report on New York State's Commercial Litigation Courts Released

The Chief Judge's Task Force on Commercial Litigation in the 21st Century: Report and Recommendations to the Chief Judge of the State of New York (June 2012) is available on the New York courts web site.  The Commercial Division in New York state courts began as a pilot project in 1993 and now is established in eight counties.  A Task Force was commissioned to study commercial litigation "to ensure that the New York Judiciary helps our State retain its role as the preeminent financial and commercial center of the world."

The Task Force's recommendations include:

• establishing a new class of Court of Claims judges

• increasing the monetary threshold for actions to be heard in the Commercial Division

• providing Commercial Division Justices with additional law clerks

• rehiring Judicial Hearing Officers

• recruiting seasoned commercial litigation practitioners as Special Masters

• convening an Institute on Complex Commercial Litigation

• earlier assignment of cases

• revised procedures on expert discovery

• limits on privilege logs

• adjustments to e-discovery

• creating a permanent statewide Advisory Council on the Commercial Division.

PM

Effron on J. McIntyre Machinery v. Nicastro

I have posted my latest article, Letting the Perfect Become the Enemy of the Good: The Relatedness Problem in Personal Jurisdiction to SSRN.

The Supreme Court’s recent decision in J. McIntyre Machinery v. Nicastro had the potential to resolve nearly two decades of confusion in personal jurisdiction doctrine. Confronted with the earlier Asahi plurality opinions, which had established competing “stream of commerce” theories, the Court produced a fractured 4-2-3 opinion that resolved little beyond holding that the New Jersey courts could not exercise personal jurisdiction over the defendant in the instant case.

In this Article, I consider one dimension the doctrinal deadlock that the Supreme Court produced in Nicastro: the concept of specific jurisdiction itself. In recent cases, most notably in Nicastro, the Court has become obsessed with the general and abstract contours of the relationship between a defendant and the forum state. However, one of the most important aspects of the distinction between general and specific jurisdiction is the relatedness between the lawsuit and the forum state. In conceptualizing relatedness at the highest level of generality, the Supreme Court has characterized the relatedness problem in a way that is nearly impossible to answer in any concrete case that comes before it. In other words, the Supreme Court has let the perfect become the enemy of the good. Instead of producing a flexible, workable, if not entirely global or perfect rule, the Court has given the lower courts hardly any rule at all.

This Article suggests that in order to break the stream of commerce stalemate, the Supreme Court should refocus specific jurisdiction doctrine so that it produces concrete answers to the two dimensions of the relatedness problem. It further argues that Justice Brennan’s stream of commerce position from Asahi remains the most viable path for specific jurisdiction analysis. The expansive scope of the Brennan position fits well with modern understandings of commerce and the domestic and international sale and distribution of goods. Moreover, in tandem with a robust fairness analysis, the stream of commerce position will allow courts to examine the two dimensions of relatedness in a useful, concrete, and doctrinally consistent manner.

RJE

 

SCOTUS Cert. Grants of Interest

Today the Supreme Court granted certiorari in a number of cases. Some of these may be of particular interest:

Comcast Corp. v. Behrend (No. 11-864), with certiorari limited to the following question: Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Genesis HealthCare Corp. v. Symczyk (No. 11-1059), which presents the question: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.

Another case looks on the surface like it’s about trademark law, but the question presented has a federal courts angle. Already, LLC v. Nike, Inc. (11-982) presents the question: Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.

You can find links to the lower court opinions and the cert-stage briefing at the SCOTUSblog casefiles for Comcast v. Behrend; Genesis HealthCare v. Symczyk; and Already v. Nike.

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Reda on the Cost-and-Delay Narrative in Civil Justice Reform

Danya Shocair Reda has posted The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions to SSRN.

For the past three decades, common wisdom in the legal profession has maintained that the cost of trials, and the trial process itself, are too time-consuming and too expensive to maintain. In May 2010, elite lawyers, federal judges, and prominent legal scholars gathered at Duke Law School to discuss these issues and the future of civil process in the federal courts. Most participants agreed that the focus of federal rules reform should be reigning in the high costs and delay of civil litigation. In a world of electronic discovery and electronically stored information, the costs of litigation were undoubtedly skyrocketing. If discovery had always been ripe for abuse, the ubiquity of electronically stored information made it all the more so. Yet empirical data presented at the conference told a different story. The Federal Judicial Center (FJC) reported that in its study of federal cases that had closed in the 2008 calendar year, the median cost of litigation for defendants was $20,000, including attorneys’ fees. For plaintiffs, the median cost was even less, at $15,000, with some reporting costs of less than $1600. Rather than out-of-control discovery costs emerging from the electronic discovery era, the FJC found median discovery costs represented 3.3% of the amount at stake in litigation.

The results were surprising to those in attendance, but they shouldn’t have been. The FJC’s 2009 data were consistent with a line of similar studies conducted every few years and dating back to the late 1960s. Empirical work has simply never provided support for the widespread belief that the system takes too long, costs too much, and is in desperate need of repair. There exists a significant discrepancy between the common sense understanding of the civil justice system, driven by what I call the “cost-and-delay narrative,” and the picture that develops from the empirical studies. This Article seeks to understand the resilience of the cost-and-delay narrative in the face of empirical data that would seem to undermine it. To do so, this Article carefully analyzes the latest data on federal civil process showing that, even with the substantial changes in practice over the last decade, there is remarkable continuity in the findings of empirical studies. Equally consistent, this Article explains, is the cost-and-delay narrative itself, which has thrived for decades. The longevity of the cost-and-delay narrative should raise alarm bells, because it provides support for efforts to foreclose access to civil courts. Building on the work of scholars, including Arthur Miller, who have long sought to bring this discrepancy to light, this Article contextualizes the cost-and-delay narrative, and the reforms for which it is used to advocate, as part of a political struggle over the nature of the regulatory state and the proper role of courts.

RJE

What can personal jurisdiction teach us about the upcoming SCOTUS health care ruling?

As we gear up for the last week of the current Supreme Court Term, it’s hard to see what more could be added to the speculation about what the Court will decide in the health care cases. There is, however, a potential parallel with one of last Term’s down-to-the-wire close-call cases: J. McIntyre Machinery v. Nicastro, which came down on the Supreme Court’s last opinion day in June 2011.

Toward the end of last Term, FantasySCOTUS predicted that New Jersey’s exercise of jurisdiction over the British defendant would be upheld in McIntyre. The prediction had a fairly low degree of confidence (55%), and indeed it was wrong—the Supreme Court rejected jurisdiction by a 6-3 vote.

Fast forward to June 2012: A recent survey of experts predicts that the individual mandate will be struck down, but with a probability level of just 57%. Perhaps another end-of-Term surprise is in order? Apples-to-oranges I'm sure, but that's why they call it speculation.

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PS: According to Adam Liptak (New York Times), this coming Monday will not be the last day opinions are announced this Term. So we may be waiting until Wednesday or Thursday to hear the final word.

Decision of Interest on "Copycat Class Action Litigation": Smentek v. Dart (7th Cir.)

Judge Posner authored an interesting opinion this week in Smentek v. Dart (7th Cir. No. 11-3261). The case raises issues flowing from the Supreme Court’s decision last Term in Smith v. Bayer Corp., which considered—and rejected—an attempt to preclude certification of a class action based on a different judge’s refusal to certify a similar class action brought by a different class representative. From Smentek:

The Court in Smith v. Bayer Corp. suggested other means for limiting copycat class action litigation besides preclusion, and the defendants in the present case, who have petitioned us for leave to appeal under Fed. R. Civ. P. 23(f) from the grant of class certification, have fastened on one of them: “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 198 (2000) (citing Landis v. North American Co., 299 U.S. 248, 254 (1936)).” 131 S. Ct. at 2382.

After noting that the “reference to ‘comity’ in Smith v. Bayer Corp. was cryptic,” and exploring a number of potential approaches, Judge Posner concludes:

We are left with the weak notion of “comity” as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary. We emphasize, however, the qualification in “materially identical.” Even two class actions involving the same class may differ materially, for example in the suitability of the class representative or the adequacy of class counsel, and where they do the judge in the second, or third, or nth class action is on his own. This is not such a case; nevertheless the district judge gave plausible reasons for her disagreement with the judges in the two previous Cook County dental cases. Can more be required? The defendants’ claim that she was bound by the decisions of the other judges just because those decisions preceded and were contrary to her decision has no basis in law and flouts the principle that a district court decision does not have precedential effect. Camreta v. Greene, 131 S. Ct. 2020, 2033 n. 7 (2011); Wirtz v. City of South Bend, 669 F.3d 860, 862-63 (7th Cir. 2012). The defendants would have such decisions treated not as mere precedents but as super-precedents that no court lacking appellate authority could question.

The district judge’s grant of class certification is therefore affirmed. But this is not to say that the judge’s ruling was correct; maybe the other two judges were correct. The appeal asks us to decide only whether comity between federal district judges’ rulings on class certification is preclusive. We have decided: it is not.

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(Hat Tip: Howard Bashman)

Legislative Response to Wal-Mart v. Dukes: Coming Soon to a House or Senate Committee Near You?

According to this press release:

Tomorrow, Wednesday, June 20—the one year anniversary of the Supreme Court’s decision in Dukes v. Wal-Mart—Senator Richard Blumenthal (D-CT), Congresswoman Rosa DeLauro (D-CT) and Senator Al Franken (D-MN) will hold a press conference in the Capitol Visitors Center, Room SVC 212 at 2:15 pm, to announce that they are introducing legislation to restore the workers’ rights that were eroded by the Dukes decision. . . . The bill, called the Equal Employment Opportunity Restoration Act, would allow workers to hold employers accountable in cases of workplace discrimination by ensuring that employees can once again band together to challenge discriminatory employment practices.

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Elwood: "Reading the Tea Leaves on First American Financial Corp. v. Edwards"

While the nation waits with bated breath for the Supreme Court's ruling in the health care case(s), readers of this blog may be anticipating even more eagerly its decision in First American Financial Corp. v. Edwards, a case on Article III standing and this Term's oldest argued case without a decision. First American hasn't garnered as much chatter and speculation as bigger fish on the docket, but into that void comes this post from John Elwood (Volokh Conspiracy). 

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SCOTUS Decision of Interest: Elgin v. Department of the Treasury

Last week the Supreme Court issued its decision in Elgin v. Department of the Treasury, a case with some interesting federal courts issues and that yielded an intriguing 6-3 split: Thomas writing for the majority, joined by Roberts, Scalia, Kennedy, Breyer and Sotomayor. Alito writes the dissent, joined by Ginsburg and Kagan.

SCOTUSblog’s Opinion Analysis, by Prof. Steve Vladeck (American University), is also worth a read.

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Tamanaha's Book "Failing Law Schools" Released

Professor Brian Tamanaha of Washington University in St. Louis has published "Failing Law Schools," a book criticizing American legal education.  According to the National Law Journal, "its central argument is that going to law school is a raw deal for most students."

PM 

Standing to Oppose a Co-Party's Motion for Summary Judgment

Jonathan Wolfson, a Fifth Circuit clerk, has published "Warring Teammates: Standing to Oppose a Co-Party's Motion for Summary Judgment," 60 Drake L. Rev. 561.

Abstract:

When two defendants are sued for one tort and one co-defendant seeks
summary judgment, who has standing to oppose the motion? Obviously the plaintiff
has standing to oppose, but what about the other co-defendant? Even supposing
the co-defendant has standing if the plaintiff opposes, is that standing
contingent on the plaintiff’s opposition? Current jurisprudence in federal
courts and prior scholarship are scarce and in disagreement which leaves parties
without ground on which to base their answers. A simple answer to this quandary
might assume parties sitting on the same side of a case may not oppose one
another (in the absence of cross-claims). This article contends that sides of
the case on which parties sit are an inappropriate focal point. The focus should
instead be on which side of a particular controversy parties stand. Individuals
opposed to co-party motions should have the opportunity to oppose because the
operative criterion is adversity of position.

The minimal judicial
consensus and legal literature discussing such a scenario creates prediction
problems for litigators in multi-party litigation. The lack of certainty may
generate confusion or even conflict between co-parties seeking to advance a
common objective – winning the lawsuit – while simultaneously advancing their
own unique interests – minimizing costs and damages for a particular client. The
unique interests can create a prisoner’s dilemma in which minimizing one party’s
losses may maximize a co-party’s. This article seeks to build a theory upon
which future legal consensus on co-party standing to oppose motions might be
developed.

This article derives and applies principles from appellate
standing and the right of intervention to support permitting co-party opposition
to motions. The “aggrieved” standard of appellate standing and intervention’s
justifications of “adequate representation” and “unique perspective” inform the
otherwise minimal development of a theory permitting co-party motion opposition.
Permitting opposition to co-defendant motions by co-parties would provide
predictability and ensure parties have their voices heard on issues of interest
without sacrificing courtroom efficiency.

PM

Courts and Governance in Asia

Hi, Blog Readers.

I apologize for my absence, but I was in Asia for six weeks, and four of them were in places where Typepad.com is a blocked site.  

For my return, I thought I'd highlight this abstract of a piece in the Hong Kong Law Journal by Bjoern Dressel posted to SSRN about Courts and Governance in Asia.  Having visted a high court in Beijing which was a beautiful architectural local, but an eerily empty place, I look forward to finding out "what courts and judges actually do."

Courts and judges have become highly visible in the Asian political landscape as part of a global trend towards the judicialization of politics. Yet while there is increased understanding of what is driving this trend, current models do little to explain what courts and judges actually do; nor is there agreement on how judicial behavior might affect governance. Here I present a typology of judicial politics to support the argument that judicial behavior over time is an outcome of the interplay between institutional, ideational, and agency-specific variables. That is why the effects of judicial decisions on democratic governance are difficult to evaluate. However, the tentative evidence presented here suggests that the relationship is positive primarily in countries where courts have worked to actively facilitate dialogue between different branches of government. This article thus seeks to advance the debate on variances in judicialization and their effects both empirically and theoretically.

RJE

Solicitor General's Brief in Kiobel v. Royal Dutch Petroleum

As covered earlier, the Supreme Court ordered rebriefing and reargument in Kiobel v. Royal Dutch Petroleum on the issue of “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Yesterday the Solicitor General filed its brief on this issue. From p.5 of the brief:

In the circumstances of this case, the Court should not fashion a federal common-law cause of action. Here, Nigerian plaintiffs are suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military and police forces in committing torture, extrajudicial killing, crimes against humanity, and arbitrary arrest and detention in Nigeria. Especially in these circumstances—where the alleged primary tortfeasor is a foreign sovereign and the defendant is a foreign corporation of a third country—the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could. A decision not to create a private right of action under U.S. law in these circumstances would give effect to the Court’s admonition in Sosa to exercise particular caution in deciding whether, “if at all,” to consider suits under rules that would “claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits.” 542 U.S. at 727-728.

The S-G urges a narrow ruling, however, and expresses the view that ATS claims should remain available in circumstances like those present in the seminal case of Filartiga v. Pena-Irala:

There is no need in this case to resolve across the board the circumstances under which a federal common-law cause of action might be created by a court exercising jurisdiction under the ATS for conduct occurring in a foreign country. in particular, the Court should not articulate a categorical rule foreclosing any such application of the ATS. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), for example, involved a suit by Paraguayan plaintiffs against a Paraguayan defendant based on alleged torture committed in Paraguay. The individual torturer was found residing in the United States, circumstances that could give rise to the prospect that this country would be perceived as harboring the perpetrator. And Congress, in the Torture Victim Protection Act of 1991 (TVPA), subsequently created an express statutory private right of action for claims of torture and extrajudicial killing under color of foreign law—the conduct at issue in Filartiga.

This Office is informed by the Department of State that, in its view, after weighing the various considerations, allowing suits based on conduct occurring in a foreign country in the circumstances presented in Filartiga is consistent with the foreign relations interests of the United States, including the promotion of respect for human rights. for this reason, and because Congress has created a statutory cause of action for the conduct at issue in Filartiga, there is no reason here to question the result in that case. Other claims based on conduct in a foreign country should be considered in light of the circumstances in which they arise.

For more coverage, check out SCOTUSblog (Lyle Denniston) and Lawfare (John Bellinger).

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(Hat Tip: Jonathan Hafetz)

SCOTUS Cert Grant on Class Certification Standards for Securities Claims

Today the Supreme Court granted certiorari in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds (No. 11-1085), a case about class certification standards for certain securities claims. Here are the questions presented:

1. Whether, in a misrepresentation case under SEC Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory.

2. Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory.

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

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Mullenix on Wal-Mart v. Dukes, One Year Later

Prof. Linda Mullenix (Texas) has a piece in the National Law Journal entitled A year after 'Wal-Mart,' class actions not dead yet. It begins:

As the first anniversary of the U.S. Supreme Court's June 20, 2011, landmark class action decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, approaches, a smattering of federal district court decisions suggest that judges are carefully parsing that opinion and still certifying class actions. Although it is far too early to project any definitive assessments, some melodramatic pronouncements of the death of class litigation in Dukes' wake seem premature.

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Law Student Research & Writing Competition on E-Discovery

Details are available here. From the announcement:

The DISH® “Best in Class” eDiscovery Legal Research and Writing Competition encourages law students to develop a thorough understanding of the evolution and practice of Information Governance and Discovery in civil litigation.  The competition is the only one of its kind designed to challenge law students to explore the evolving issues of document management, electronically stored information, and ever-expanding technology—along with their application to the law.

The 2012 competition asks students to address the following topic: Under what standard should a court subject an employee's non-business personal computing activities (e.g., social media, documents stored on a personal computer, and/or personal email accounts) to civil discovery involving her or his employer?

And:

The first-place selection will receive a $2,500 cash award along with an invitation to present his/her paper on a webinar hosted by Redgrave LLP. Two runners-up will also be selected and will each receive a $1,000 cash award.

The deadline for submissions is October 13, 2012.

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