Civil Procedure & Federal Courts Blog

Preview of Next Week's Re-Argument in Kiobel v. Royal Dutch Petroleum

Now available from the ABA is a preview by Prof. Jonathan Hafetz (Seton Hall) of Monday’s Supreme Court oral argument in Kiobel v. Royal Dutch Petroleum:

Download ABA Preview Kiobel Oct 1 2012

As covered earlier, the Court ordered a new round of briefing and argument to address the following issue: “Whether 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.”

--A

Legislation to Realign Divisions Passes Congress

From Third Branch News:

Congress has passed and the President is expected to sign into law, H.R. 5512, the Divisional Realignment Act of 2012. The legislation, introduced in May, realigns divisions in the U.S. District Courts in the Eastern District of Missouri and the Northern District of Mississippi to allow the courts to better manage cases for the benefit of litigants and jurors. The realignment was proposed by the Judicial Conference of the United States in March 2012. 

In the Eastern District of Missouri, the legislation will transfer Iron and Saint Genevieve Counties from the Eastern Division to the Southeastern Division. Court for the Southeastern Division is held at Cape Girardeau. The shift will help equalize the workload of the two divisions, and also decrease travel distances for attorneys and jurors in the affected counties.

In the Northern District of Mississippi, the bill will eliminate the Delta Division by reallocating the eight counties in that division among the district’s three remaining divisions. The Delta Division does not contain a federal courthouse. The changes to both judicial districts will take effect 60 days after enactment of the bill.

The Divisional Realignment Act was introduced in the House by Representative Bennie G. Thompson (D-MS), with co-sponsors Representatives Russ Carnahan (D-MO), Jo Ann Emerson (R-MO), Gregg Harper (R-MS), and Alan Nunnelee (R-MS).  A companion bill was introduced in the Senate as S. 3293 by Senator Claire McCaskill (D-MO), with Senators Roy Blunt (R-MO), Thad Cochran (R-MS), and Roger Wicker (R-MS) joining as co-sponsors.

PM

The Meaning of McIntyre

Now on SSRN is my essay, The Meaning of McIntyre, which was part of a recent symposium at Southwestern Law School in Los Angeles. Here’s the abstract:

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as establishing new constitutional restraints on state court exercises of personal jurisdiction, or as resolving previously open questions in favor of a more restrictive approach. These opinions misread the Justices’ opinions in McIntyre. In particular, there has been confusion about Justice Breyer’s concurrence, which explicitly disagreed with Justice Kennedy’s reasoning and was premised on a narrow understanding of the factual record in McIntyre. Many lower court decisions, however, correctly recognize that the fractured McIntyre decision does not mandate new constitutional restrictions on personal jurisdiction.

Here are some of the things lower courts have been up to since McIntyre came down:

(1) addressing the extent to which McIntyre has any binding holding at all, either via the Marks rule (under which “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”), or by attempting to aggregate the views of enough Justices to reach a majority on certain issues;
(2) embracing controversial aspects of Justice Kennedy’s plurality opinion that are in significant tension with earlier Supreme Court majority decisions;
(3) reading McIntyre as calling into question the “reasonableness” prong of the prevailing two-step jurisdictional framework;
(4) assessing McIntyre’s impact on the role that foreseeability plays in determining jurisdiction over defendants whose products reach a state through the “stream of commerce”; and
(5) discussing whether McIntyre has declared a winner in the disagreement between Justice O'Connor and Justice Brennan in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

Many thanks to everyone at Southwestern for doing such a great job with the symposium. I was glad to be a part of it.

--A

Freer on the Continuing Gloom About Federal Judicial Rulemaking

Richard Freer (Emory) has posted The Continuing Gloom About Federal Judicial Rulemaking to SSRN.

In 2013, the Federal Rules of Civil Procedure will be 75 years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in "crisis" and its fans are experiencing "malaise." This paper addresses the reasons for that gloom and concludes that some level of "crisis" is inevitable. At the macro level, judicial rulemaking is a legislative function being performed by an unelected body which is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development. 

These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. It has become less an Advisory Committee than a Strunk & White Committee. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee's fault. Like the wayward star, it should change its ways, a process that starts by understanding the burdens and costs imposed by every procedural change.

RJE

Kritzer and Drechsel on Local News Coverage of Civil Litigation

Herbert M. Kritzer and Robert E. Drechsel have posted on SSRN a paper entitled “Local News of Civil Litigation: All the Litigation News That's Fit to Print or Broadcast,” 96 Judicature, No. 1, pp. 16-22.

Abstract:

What is the nature of the coverage of civil litigation by local newspapers and local television? That is the question considered in this paper. Drawing upon news clips from 2004 (11 media markets around the U.S.), 2006 (9 media markets in the Midwest), and 2007 (9 media markets in the Midwest), we present a portrait of litigation as locally reported. We find (a) torts make up a minority of reports, (b) very few verdicts are reported, and (c) dollar figures are mentioned in a modest proportion of cases but when mentioned tend to be large. We also find significant differences in the reporting practices of local television and local newspapers, particularly with regard to the types of cases discussed (more torts on television and more cases against government in the newspapers). We conclude with some speculations about the implications of our analysis for debates over civil justice “reform.”

PM

Survey Finds 41% of Americans Doubt Fairness of Civil Justice System

In a survey last month of 1,020 randomly selected adults, DRI-The Voice of the Defense Bar, found that 41% of the respondents were not confident about the fairness of civil courts.  A majority of respondents also believed that class actions improved corporate responsibility (but also that plaintiffs' attorneys were unfairly enriched as a result).  Most would rather have a jury decide their civil case than a judge, while admitting that if called as a juror, they would probably have some bias.

The full survey is available here.   

Hat tip: Blog of the Legal Times.

PM

Cohen on Erie and International Law

Professor Harlan Cohen (Georgia) has posted on SSRN a draft of his article, International Law’s Erie Moment, which will be published in the Michigan Journal of International Law. Here’s the abstract:

Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.

Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the social norms of specialized business communities, and constitutional separation-of-powers, along with traditional customary international law, this paper demonstrates that the conflict between these two visions is much deeper than previously assumed. What emerges from these literatures are two radically different models of lawmaking, “negotiated law” and “adjudicated law,” that look different, act differently, rely on different sources of authority and legitimacy, and are to some extent in conflict with one another. Contrary to conventional wisdom, gap-filling by states and gap-filling by courts are not interchangeable.

The unrecognized differences between these two competing models of modern international law lie at the heart of longstanding doctrinal tensions over the nature/sources of customary international law and provide unseen inspiration for the brewing conflicts between courts and states for interpretative supremacy. International law has essentially reached its Erie moment. Only by recognizing the true nature of the conflict, only by recognizing the very different sources of judicial and state authority, only by forcing courts and states to justify their claims to interpretive authority, can we begin to resolve the tensions between these two models and discern the proper roles of courts and states on a modern international law.

--A

Carbonara & Parisi on Fee-Shifting

Professors Emanuela Carbonara (University of Bologna – Economics) and Francesco Parisi (Minnesota) have posted on SSRN a draft of their paper, Rent-Seeking and Litigation: The Hidden Virtues of the Loser-Pays Rule. Here’s the abstract:

In the past couple of decades, scholars have predominantly employed rent-seeking models to analyze litigation problems. In this paper, we build on the existing literature to show how alternative fee-shifting arrangements (i.e., the American rule and modified English rule) affect parties' litigation expenditures and their decisions to litigate. Contrary to the prevailing opinion, we discover some interrelated advantages of the English rule over the American rule, including the reduction of litigation rates and reduction of expected litigation expenditures. Our results unveil a hidden virtue of the English rule, showing that an increase in fee-shifting may have the effect of reducing total litigation costs and lead to a desirable sorting of socially valuable litigation.

--A

Solomon on the Political Puzzle of the Civil Jury

Jason Solomon (William & Mary) has posted The Political Puzzle of the Civil Jury to SSRN.

At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.

In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.

I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.

RJE

Ides & Grossi on Purposeful Availment & Personal Jurisdiction

Professors Allan Ides & Simona Grossi (Loyola Los Angeles) have posted on SSRN a draft of their essay, The Purposeful Availment Trap. Here’s the abstract:

“The Purposeful Availment Trap” represents a very careful and powerful synthesis of years of studies on the theme of personal jurisdiction. In the essay we demonstrate how the Supreme Court’s current struggles on the theme of personal jurisdiction are the result of the purposeful availment “trap” that the Supreme Court has itself created. By interpreting its own interpretations, the Supreme Court got lost in dogma and dicta that make its opinions hard to reconcile with the fundamental principles of due process as articulated in International Shoe. This essay also highly benefits from a dialogue between the civil law and common law world, that we both respectively represent.

--A

MDL Judge Finds Personal Jurisdiction Over Chinese Drywall Manufacturer

Last week, U.S. District Judge Eldon Fallon denied a Chinese drywall manufacturer’s motion to dismiss several cases for lack of personal jurisdiction. The cases were consolidated in the Eastern District of Louisiana under MDL No. 2047, In re: Chinese Manufactured Drywall Products Liability Litigation.

Among other things, the 142-page opinion discusses rather extensively the Supreme Court’s 2011 decision in J. McIntyre Machinery v. Nicastro.

--A

(Hat Tip: Beth Thornburg, via twitter at @btSMU)

Coleman on Turner v. Rogers and the Right to Appointed Counsel

Prof. Brooke Coleman (Seattle University) has posted on SSRN a draft of her article, Prison Is Prison, which will be published in the Notre Dame Law Review. Here’s the abstract:

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court’s analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court’s narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court’s different goals in the criminal and civil context better explain the Court’s approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court’s “doctrinal-oriented” approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner is prison, not monetary damages or injunctive relief. Instead of taking this doctrinal-oriented approach, this Article argues that the Court’s analysis should be “consequence-driven.”  Where prison is the consequence, the Court’s underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil. Using the Court’s decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.

--A

Amicus Files Brief Explaining Antitrust Law in Cartoons to Meet Five-Page Limit

The ABA Journal reports that "a lawyer who opposes the Justice Department’s proposed antitrust settlement with three publishers of e-books has filed an amicus brief (PDF) in the form of a comic strip."

After U.S. District Judge Denise Cote of Manhattan limited his brief to five pages, lawyer Bob Kohn conceived of the “graphic novelette” and says it complies with court rules requiring 12-point or larger type and one-inch margins.  Although Publishers Weekly called the brief "brilliant," it apparently failed to persuade Judge Cote, who approved the settlement.

PM

 

Federal Court Strikes Down Secrecy of Delaware Chancery Court Arbitrations

            A federal district court in Delaware has held that because the First Amendment provides a qualified right of access to arbitration proceedings established by Delaware law and implemented by the Delaware Court of Chancery, such proceedings must be open to the public.  Delaware Coalition for Open Government v. Strine, No. 1:11-1015, 2012 WL 3744718 (D. Del. Aug. 30, 2012).

            Delaware law gives the Court of Chancery “the power to arbitrate business disputes when the parties request a member of the Court of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate a dispute.” 10 Del. C. § 349(a).  Once the parties file an appropriate  petition, "the Chancellor appoints a Chancery Court judge to preside over the case as the arbitrator." 

The Chancery Court Rules require that all parts of the proceeding, including all filings and all contacts between the arbitrator and any party are 'confidential and not of public record.' Del. Ch. Ct. R. 97 a)(4), 98(b). The Register in Chancery does not file the parties' petition on the court's public  docketing system. Id. 97(a)(4). None of the hearings is open to the public.

            Plaintiff challenged the confidentiality provisions of the law, arguing that the First Amendment prevents the defendants from closing the proceeding to the public and press.  Judge McLaughlin granted plaintiff's motion for judgment on the pleadings. 

Although the Supreme Court has never addressed access to civil judicial proceedings, every Court of Appeals to consider the issue, including the Court of Appeals for the Third Circuit, has held that there is a right of access to civil trials. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); . . . .

The Delaware proceeding, although bearing the label arbitration, is essentially a civil trial. . . . In the Delaware proceeding, the parties submit their dispute to a sitting judge acting pursuant to state authority, paid by the state, and using state personnel and facilities; the judge finds facts, applies the relevant law, determines the obligations of the parties; and the judge then issues an enforceable order. This procedure is sufficiently like a civil trial that Publicker Industries governs. . . .

The public benefits of openness are not outweighed by the defendants' speculation that such openness will drive parties to use alternative non-public fora to resolve their disputes. Even if the procedure fell into disuse, the judiciary as a whole is strengthened by the public knowledge that its courthouses are open and judicial officers are not adjudicating in secret.

PM

Davis and Lande on Private Antitrust Enforcement

Just posted on SSRN: "Towards an Empirical and Theoretical Assessment of Private Antitrust Enforcement" by Joshua P. Davis and Robert H. Lande.

Abstract:     
The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors' 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of Michigan Law School.

Given this subject's importance and controversial nature we undertook a supplemental study of 20 additional private antitrust cases. This article analyzes the 20 new cases, compares and contrasts them with that of our earlier group, and draws insights from all 60.

The studies demonstrate that private litigation has provided substantial cash compensation to victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also show that private antitrust enforcement has had an extremely strong deterrent effect. In fact, private enforcement probably deters more anticompetitive behavior than even the appropriately acclaimed anti-cartel program of the U.S. Department of Justice Antitrust Division.

Another purpose of our study was to ascertain important characteristics of private antitrust cases that could help influence the debate over their efficacy. These include whether there were indicia that the cases had underlying merit, the significance of recoveries from foreign violators of U.S. antitrust law, and the sizes of attorney’s fee awards and claims administration expenses.

Finally, this article responds to criticisms of our analysis and our conclusions. In particular, we explain why the Department of Justice officials are incorrect in challenging our claims about the deterrence effects of private antitrust enforcement and why Professor Crane is similarly mistaken regarding its compensation effects. We explain why our earlier study did indeed demonstrate the truly significant benefits of private antitrust actions — conclusions our new empirical work confirms and strengthens.

PM

 

Fifth Circuit Adopts “Flexible Due Diligence” Standard For Service of a Foreign Defendant

In Lozano v. Bosdet et al., No. 11-60736 (5th Cir. Aug. 31, 2012), a Mississippi citizen sued the driver of a rental car, her passengers, and Enterprise Rent-A-Car for a traffic accident on the last day before the statute of limitations expired.  Enterprise removed the case to federal district court (and was later granted summary judgment).  The other defendants were individuals believed to be living in England.  Within 120 days of the complaint’s filing, plaintiff attempted service by restricted delivery mail and also hired a private process server to communicate with a local agent of two of the defendants.  At the end of the 120 days, plaintiff moved for and was granted an additional 120-day period, and later an additional 30-day period, in which to complete service.  Still failing service, plaintiff moved for yet another extension, stating that steps were underway to accomplish service according to Rule 4(f)’s provisions for service outside the U.S.  The district court denied the final request and dismissed the suit without prejudice. 

Upon plaintiff’s appeal, the Fifth Circuit reversed.  The court held that the 120-day service requirement in Rule 4(m) was subject to an express exception for service of individuals abroad under the Hague Convention.  However, the court did not view the time allotted for service unlimited but subject to a “flexible due diligence standard” measured by “good faith and reasonable dispatch.” 

Further, the court held that because the plaintiff would likely be barred from refiling a dismissed suit due to the statute of limitations, a higher standard applicable to a with-prejudice dismissal applied.  In such a case, dismissal should only be granted when there was a “clear record of delay  or contumacious conduct by the plaintiff,” and “when the delay (1) was caused by the plaintiff himself, as opposed to by counsel; (2) resulted in actual prejudice to the defendants; or (3) was caused by intentional conduct.”  The court held that this standard had not been met and reversed the dismissal.

PM