Civil Procedure & Federal Courts Blog

Robertson on the Right to Appeal

Cassandra Burke Robertson has posted The Right to Appeal on SSRN.

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position. 

In this article, I argue that a right to appeal protects both private litigants and the justice system as a whole. First, doctrinal consistency necessitates the explicit recognition of a constitutional right to appeal — a right that the Supreme Court’s criminal and punitive-damages doctrines have already implicitly recognized. Second, the modern procedural system has developed in a way that relies on appellate remedies as part of fundamental due process. Traditional procedural safeguards — such as the jury trial and the executive clemency process — may once have sufficiently protected due process rights. In the modern era, however, these procedures have diminished at the same time that reliance on appeals has grown; as a result, if appellate remedies are removed from the procedural framework, the system as a whole cannot provide adequate due-process protection. Finally, recognizing constitutional protection for appellate rights would also express a normative view, promoting the values of institutional legitimacy, respect for individual dignity, predictability, and accuracy. Appellate procedure has earned a place in our contemporary understanding of due process; it is time to recognize its role as a fundamental element of fair judicial practice.

 RJE

SCOTUS Oral Argument in Clapper v. Amnesty International: Article III Standing to Challenge Federal Wiretapping Procedures

Although Hurricane Sandy may change things, the Supreme Court is still – as of this post anyway – scheduled to hear oral argument tomorrow in Clapper v. Amnesty International. The issue is whether the plaintiffs have Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act. Here are a few posts of interest:

• SCOTUSblog, Argument preview: Can global wiretaps be challenged? (Lyle Denniston)
• Lawfare, Why Clapper Matters: The Future of Programmatic Surveillance (Steve Vladeck)
• Slate, Why Amnesty Should Lose at the Supreme Court (Eric Posner)

For links to all the merits and amicus briefs, head to SCOTUSblog’s case file.

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PS: To everyone in Sandy’s exceptionally wide path, stay safe.

Vladeck on Collins & Nash on Federal Crimes in State Courts

Now available on the Courts Law section of JOTWELL is an essay by Prof. Stephen Vladeck (American University) entitled Federal Crimes, State Courts, and Palmore. It reviews Michael G. Collins & Jonathan Remy Nash’s recent article, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011). Steve’s review begins:

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning.

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Chief Justice Roberts Appoints New Chairs for Judicial Conference Committees

The U.S. Courts website has the announcement here. The new chairs are:

Judge Lawrence L. Piersol (D. S.D. ), succeeding Judge David A. Katz (N.D. Ohio) as chair of the Committee on Audits and Administrative Office Accountability;

Judge Catherine C. Blake (D. MD), succeeding Judge Claire V. Eagan (N.D. Okla.) as chair of the Committee on Defender Services;

Judge Joel A. Pisano (D. NJ), succeeding Judge George H. King (C.D. Cal.) as chair of the Committee on the Administration of the Magistrate Judges System;

Judge Jeffrey S. Sutton (6th Cir.), succeeding Judge Mark R. Kravitz (D. Conn.) as chair of the Committee on Rules of Practice and Procedure; and

Judge Steven M. Colloton (8th Cir.), succeeding Judge Jeffrey S. Sutton (6th Cir.) as chair of the Advisory Committee on Appellate Rules.

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Landsman-Roos on Pre-Certification Fiduciary Duties to Class Members

Nick Landsman-Roos (J.D. 2013, Stanford) has posted on SSRN his note, Front-End Fiduciaries: Pre-Certification Duties and Class Conflict, which will appear in the Stanford Law Review. Here’s the abstract:

On August 31, 2012, the Supreme Court granted certiorari in Standard Fire Insurance v. Knowles to decide whether named plaintiffs may defeat removal under the Class Action Fairness Act of 2005 by filing 'binding stipulations' with complaints in state court, capping a classes’ recovery at under $5 million (the jurisdictional threshold for removal). The case presents an opportunity to address an issue under-theorized in the existing literature on class actions: what fiduciary duties, if any, are owed by a plaintiff's attorney to potential absent class members in a class action prior to certification? What are the contours or scope of such a pre-certification fiduciary duty?

This paper fills two gaps in the literature about fiduciary duties (or more broadly conflicts of interest) in class actions. First, there has been little scholarly treatment of the scope and contours of an attorney’s fiduciary duty to class members prior to class certification - that is, outside the strictures of Rule 23. Pre-certification conflicts are far more difficult to address because no federal rules-based framework exists for addressing pre-certification conduct. Second, this is the first academic treatment of means-based decision making in class actions. Unlike post-certification inquiries into conflicts of interest concerning settlements, this inquiry is particularly complicated because there is often inadequate information about likely outcomes when certain means are employed. Conceivably, there is considerably more grey area surrounding means-related decision making. In the pre-certification stage, without information about how the litigation will run its course, attorneys make decisions that could credibly be defended as in the best interest of the class, or as in breach of the attorney’s fiduciary obligations to those class members.

In discussing pre-certification fiduciary duties, this paper investigates the legitimacy of 'binding stipulations' as a case study. In addition to this specific analysis, this paper offers a specific formulation of the scope of attorneys’ pre-certification fiduciary duties: an attorney breaches his fiduciary duty to class members when he makes a decision that prejudices the substantive legal rights of absent class members without notice and opportunity for objection. When an action potentially prejudices or does prejudice a substantive legal right of absent class members, an attorney should have an opportunity to offer a good faith defense - that the course of conduct was undertaken in a good faith belief that it would maximize the class’s recovery. That defense, in turn, can be evaluated in terms of whether it is legitimate, genuine, or pre-textual.

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Clermont on Aggregation of Claims and Illogic

Kevin Clermont (Cornell) has posted Aggregation of Claims and Illogic to SSRN.

Classical logic and probability theory produce in law the troublesome paradox of aggregation: On the one hand, logic seems to tell us that the aggregated likelihood of alternative claims elevates in response to probability’s rules; thus, if the plaintiff almost proves claim A and almost proves an alternative but independent claim B, then the plaintiff should win one. On the other hand, because the law requires each claim to meet the standard of proof, and thus refuses to apply the proof standard to the aggregation, the plaintiff loses in actuality; legal scholars despair in consequence — including Ariel Porat and Eric Posner in their new article Aggregation and Law.

Fuzzy logic, however, eradicates the aggregation paradox, by showing that the theories’ aggregated likelihood equals the most likely theory’s likelihood. The law is correct in applying this approach.

RJE

Judicature: Invitation to Submit Manuscripts

Judicature, a peer-reviewed journal published by the American Judicature Society, is seeking submissions. If you’re not familiar with Judicature, the articles tend to be shorter than typical law review fare: 4,000–5,000 words (not including footnotes). More information from the Invitation to Submit is below:

Judicature, a peer-reviewed journal, strives to present the best scholarship and commentary on the administration of justice, both civil and criminal, and judicial politics, broadly speaking.

Judicature publishes work from across the social sciences, as well as scholarship and commentary from attorneys, judges, and research organizations. While the journal focuses primarily on the administration of justice in the United States—manuscripts that are global or international in scope, as well as work that is national, local, or examines connections between these levels are welcome. The content of the journal is not subject to restrictions based upon the policy positions of the American Judicature Society.

Judicature is interdisciplinary in focus.

The editor is open to a wide range of analytic approaches including interpretive, historical, quantitative, and multi-method analyses, among others. Applied research on the administration of justice is particularly suited for publication in Judicature.  Judicature also welcomes shorter pieces adapted from works larger in scope.  The readership includes practitioners as well as scholars; contributors should keep this broad audience in mind when crafting their manuscripts for the journal.

Judicature is indexed in Index to Legal Periodicals, Current Law Index, Legal Resource Index, Criminal Justice Periodical Index, and PAIS Bulletin and is available on-line on the WESTLAW service.

(Hat Tip: Steve Burbank)

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SCOTUS Oral Argument in Fisher v. University of Texas

Yesterday’s Supreme Court oral argument in Fisher v. University of Texas has garnered a lot of attention—you can find a host of links at SCOTUSblog’s Thursday round-up.

The argument included several interesting exchanges on the issue of whether Ms. Fisher has standing to challenge the university’s admissions policies (transcript available here):

• On pp.3-8, the plaintiff’s counsel (Mr. Rein) responds to questions by Justices Ginsburg, Sotomayor, and Scalia.
• On pp.54-56, the university’s counsel (Mr. Garre) responds to questions by Chief Justice Roberts and Justice Scalia.
• On pp.72-74, the plaintiff’s counsel (Mr. Rein) responds to questions by Justice Sotomayor.

Also on the civil procedure and federal courts front is yesterday’s post by Prof. Sherrilyn Ifill (Maryland) on Concurring Opinions, which discusses the refusal of many courts to allow minority students to intervene (Fed. R. Civ. P. 24) in cases where affirmative action policies are being challenged.

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Miller on Closing the Courthouse Doors

Concord Law School invites our readers to attend a talk by Professor Arthur Miller (NYU) on Saturday, October 20th at the University Club of Pasadena, entitled Don't Look Now, But They May Be Closing The Courthouse Doors.

Download Invitation (Arthur Miller Lecture)

You can RSVP by phone (310.689.3216) or email.

Grossi on the Case-by-Case Approach to Personal Jurisdiction

Professor Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, A Solution to the Problems Generated by the Supreme Court’s Case-by-Case Approach to Personal Jurisdiction. Here’s the abstract:

The current plethora of doctrines surrounding the law of personal jurisdiction has added more confusion to the law than it has coherence. Among other things, these doctrines confuse the sufficient with the necessary and they elevate the technicalities of doctrine over the fundamental principles at stake. The 2011 Supreme Court’s opinions, Goodyear Dunlop Tires Operations, S.A. v. Brown and J. McIntyre Machinery, Ltd. v. Nicastro are just two recent examples of that phenomenon.

This article argues that since the decision in International Shoe, which focused more on fundamental principles than it did on the niceties of doctrine, the Supreme Court has moved more steadily toward a technical and specialized approach to personal jurisdiction doctrine that has ended up confusing lower courts and the Supreme Court itself. Thus, by deconstructing the law of personal jurisdiction, and carefully examining over one hundred years of the Court’s jurisprudence as well as lower courts’ confusion, the article suggests to clear the confusion by returning to the principles traceable to International Shoe and Pennoyer and codifying them in a “due-process-style” rule premised on connecting factors and expectations.

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Call for Papers: Texas Wesleyan Law Review

From the call for papers:

The Texas Wesleyan Law Review, flagship law review of the Texas Wesleyan School of Law, invites submissions for its Spring Issue. We welcome an article or essay addressing any topic of the author’s choosing.

Please direct submissions and any questions to Jamie Winchenbach, Editor in Chief, via email at [email protected]

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SCOTUS Cert Grant of Interest: Gunn v. Minton

Last week the Supreme Court granted certiorari in Gunn v. Minton (No. 11-1118), which presents the question:

Did the Federal Circuit depart from the standard this Court articulated in Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005), for "arising under" jurisdiction of the federal courts under 28 U.S.C. § 1338, when it held that state law legal malpractice claims against trial lawyers for their handling of underlying patent matters come within the exclusive jurisdiction of the federal courts? Because the Federal Circuit has exclusive jurisdiction over appeals involving patents, are state courts and federal courts strictly following the Federal Circuit's mistaken standard, thereby magnifying its jurisdictional error and sweeping broad swaths of state law claims - which involve no actual patents and have no impact on actual patent rights - into the federal courts?

You can find a link to the Texas Supreme Court’s opinion below and other information about the case at SCOTUSblog’s case file.

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Curry and Ward on Twiqbal's Effect on Removal Rates from State to Federal Court

To be published in Texas Tech Law Review and posted on SSRN: Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State, by Jill Curry and Matthew Ward.

Abstract:

This article originated from a 2010-11 study the Federal Judicial Center conducted to examine the impact, if any, of the Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation in the United States federal courts. To examine this impact, we compared removal rates of cases to federal courts between states using notice pleading standards and states using fact pleading standards. We predicted that heightened pleading standards in federal courts would encourage plaintiffs in cases with federal and state claims, especially plaintiffs alleging a violation of their civil rights, to file in
state courts to benefit from the liberal notice pleading standard. Therefore, defendants would be more likely to remove such cases filed in notice pleading state court to federal courts to take advantage of the newly announced heightened pleading standard. After reviewing existing commentary and existing empirical research about the impact of Twombly and Iqbal, we explain the methodology for our removal study, present the results of a preliminary study to examine removal rates of four states, and subsequently present the results of our expanded examination of removal rates of all fifty states and the District of Columbia. However, the results demonstrate that these expectations were not met. There was no systematic increase in the rate of removal after Twombly and Iqbal and the effect was not more pronounced in notice pleading states compared to fact pleading states, questioning the assertion that cases are being diverted from federal court to state courts due to heightened pleading standards.  

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Kaplow on Multistage Adjudication

Prof. Louis Kaplow (Harvard) has posted on SSRN a draft of his article, Multistage Adjudication, which will be published in the Harvard Law Review. Here’s the abstract:

Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Iqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.

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(Hat Tip: Larry Solum)

Grossi on Forum Non Conveniens

Prof. Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, Forum Non Conveniens as a Jurisdictional Doctrine. Here’s the abstract:

In Forum Non Conveniens as a Jurisdictional Doctrine, I reconsider the doctrine of forum non conveniens from a jurisdictional perspective and, by so doing, challenge the current approach to and understanding of that doctrine. As a solution, I offer a novel, statutory-based framework designed to ameliorate an array of problems generated by the currently accepted model.

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Epstein on Greenhouse on Introducing the Supreme Court

Now available on the Courts Law section of JOTWELL is an essay by Prof. Lee Epstein entitled Introducing the Court. It reviews Linda Greenhouse’s recent book, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012).  The review begins:

The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.

And concludes:

As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.” (p. 87).

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SCOTUS Oral Argument Transcript in Kiobel v. Royal Dutch Shell

Today the Supreme Court heard oral argument in Kiobel v. Royal Dutch Shell (10-1491) for the second time. The transcript is available here.

Parenthetically, there are some interesting exchanges for folks who are teaching (or taking) 1L civil procedure, on topics such as (1) waiver of defenses by omitting them from pre-answer motions [pp.3-4], (2) federal question jurisdiction under 1331 [pp.17-20]; (3) Erie and general common law [pp.18-19]; and (4) the 2011 personal jurisdiction decisions [p.54].

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Conference Announcement: Advocacy Under the Federal Rules of Civil Procedure After 75 Years

Conference:  Advocacy Under the Federal Rules of Civil Procedure at the University of Kansas, November 8-9, 2012

The Kansas Law Review in conduction with the Shook, Hardy & Bacon Center for Excellence in Advocacy will host "Advocacy Under the Federal Rule of Civil Procedure After 75 Years"

Speakers include:

 • Professor Richard Marcus – Horace O. Coil Chair in Litigation at University of California Hastings College of the Law; Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S.

• John Barkett – Partner, Shook Hardy & Bacon L.L.P, Miami office; ABA Section of Litigation’s liaison member to the Federal Civil Rules Advisory Committee.

• Professor Steven Gensler – Professor, Associate Dean of Research and Scholarship at University of Oklahoma College of Law; Member of the United States Judicial Conference Advisory Committee on Civil Rules; Former Supreme Court Fellow at the Administrative Office of the United States Courts

• Professor Robert Burns – Professor of Law at Northwestern University School of Law; Program Director and Section Leader for the National Institute for Trial Advocacy.

• Honorable Lee H. Rosenthal – U.S. District Court Judge for the Southern District of Texas, Houston Division; Chair of the Judicial Conference Committee on the Rules of Practice and Procedure; Former Chair of the Judicial Conference Advisory Committee on Civil Rules.

• Rebecca Kourlis – Founder and Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver; Former Justice of the Colorado Supreme Court.

• John H. Martin – Partner, Thompson & Knight LLP; Fellow, American College of Trial Lawyers; Fellow, International Academy of Trial Lawyers

• Kelley Sears – Senior Vice President and Deputy General Counsel, Wal-Mart

• Honorable David J. Waxse – Magistrate Judge for the United States District Court, District of Kansas; Former Chair of Kansas Commission on Judicial Qualifications; Past-President of the Kansas Bar Association.

 

All are invited to attend the conference.  Additionally, some funds are available to sponsor room and board faculty wishing to attend.  Please contact Prof. Lou Mulligan at [email protected]

RJE

If you teach Passa v. Derderian

There is an article in today's NYTimes on the ten years that have passed since the accident, providing some context for the victimes, their families, the club owners, the criminal case, and the slow path to a memorial.

RJE