Wednesday, December 19, 2012
The 2013 meeting for the Association of American Law Schools is a couple of weeks away. A link to the complete program is here. For those of you who are venturing to New Orleans, below are some events that may be of interest. The panel on the 75th Anniversary of the Federal Rules of Civil Procedure - which includes Justice Scalia - is a particular must-see.
Tuesday, December 18, 2012
Professor Richard Freer (Emory) has posted on SSRN a draft of his article, The Supreme Court and the Class Action: Where We Are and Where We Might Be Going. Here's the abstract:
In 2010 and 2011, the Supreme Court decided five class action cases. In 2012, it has agreed to hear four more. This piece summarizes what the Court has done and where it appears to be going concerning aggregate litigation. The goal of this piece is more practical than theoretical: to place all nine cases in context and draw preliminary conclusions about the impact these cases have had and will have -- not only on class action practice, but in other areas, including the Erie Doctrine, waivers of class arbitration, anti-suit injunctions, the binding effect of judgments on class members, enforcement of Rule 10b-5, and the apparent efforts of defendants to front-load litigation by demanding greater consideration of merits-based facts (and qualification of experts) at the class certification stage.
The cases dealing with waivers of class arbitration implicate the role of the civil suit in law enforcement. If small (usually consumer) claims cannot be pursued on an aggregate basis, they may never be vindicated; individuals and lawyers will not find it economically feasible to do so. Yet the Court appears unwilling to recognize a public-policy exception to the primacy of contract. Thus, if the underlying contract waives aggregate litigation or arbitration, apparently this will not be trumped by the concern that the relevant law (often consumer protection laws) will not be enforced through civil litigation.
Luke Meier has posted Probability, Confidence, and the Constitutionality of Summary Judgment to SSRN.
Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the issue was resolved by the Supreme Court in Fidelity & Deposit Co. v. United States. This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court caselaw. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise; contrary to popular believe, the Supreme Court has not addressed these Seventh Amendment concerns.
Friday, December 14, 2012
Mark Brown (Capital University) has posted Serving State Officers in Official-Capacity Actions: Is Mail an Option? to SSRN.
Rule 4 distinguishes service rules for states that are "subject to suit" from those rules that are applicable to individuals. In particular, Rule 4's mail "alternative," which provides incentives to defendants to accept informal service-by-mail, does not apply to state-defendants. Of course, states are ordinarily immune from suit in federal court because of the Eleventh Amendment, meaning they will usually not be subject to suit, let alone service of process. In Constitutional cases, however, states can be yoked into federal court under the fiction of Ex parte Young. Suits seeking prospective relief (as opposed to money damages) are not prohibited by the Eleventh Amendment (or the modern interpretation of 42 USC 1983) because they are not (wink, wink) suits against states. Given this fiction, the question I explore is how service should proceed in an Ex parte Young action. Should the state officials be served as individuals or as states. If the former, then mail is an option. If the latter, it is not under Rule 4. My thesis is that state officials in these cases must be served as individuals, which not only changes the basic mechanics of service, but also makes mail an option. The Circuits are presently split over this issue.
Thursday, December 13, 2012
A new Case Note posted by the ABA Class Action & Derivative Suits Committee:
Judge Posner's opinion in Johnson v. Meriter Health Services Employee Retirement Plan, No. 12-2216 (7th Cir. Dec. 4, 2012), focuses on one question arguably left open by Wal-Mart Stores v. Dukes – what kind of incidental monetary relief may be certified in a Rule 23(b)(2) case? The Court affirmed the class certification order in this ERISA class action, concluding that the variations and the complexity of the claims did not destroy commonality because the claims of each sub-class were homogeneous. The Court also noted that the Supreme Court's holding that damages could not be sought in a Rule 23(b)(2) action was limited to “monetary relief [which] is not incidental to
the injunctive or declaratory relief.” Here, the plan participants were permitted to seek monetary relief incidental to the declaration of their rights under the subject pension plan. The Court also provided detailed guidance as to calculating this incidental monetary relief where the plaintiffs' claims might require an evidentiary hearing, including certification of a Rule 23(b)(2) class with notice and opt out, bifurcated certification, or damage calculations via a computer program.
Submitted by Jocelyn Larkin, Impact Fund
- Walter Dellinger, No Harm, No Standing (Slate)
- Linda Greenhouse, Standing and Delivering (N.Y. Times)
“The Public Life of the Private Law: The Logic and
Experience of Mass Litigation”
A Conference in Honor of Richard A. Nagareda
Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program. “The Public Life of Private Law: The Logic and Experience of Mass Litigation” Conference will be held on September 27 and 28, 2013, at Vanderbilt and is jointly sponsored by the Branstetter Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media. Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas).
Junior scholars are invited to submit paper proposals for the conference by February 15. More details in the full announcement, linked below:
Tuesday, December 11, 2012
Today the Supreme Court issued an order in United States v. Windsor (docket no. 12-307) appointing Prof. Vicki Jackson (Harvard) “to brief and argue this case, as amicus curiae, in support of the positions that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of Representatives lacks Article III standing in this case.”
For more coverage, check out Lyle Denniston (SCOTUSblog).
Monday, December 10, 2012
We covered earlier the additional questions the Supreme Court asked the parties to brief in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307), especially on the issue of Article III standing. Here’s some recent coverage of those issues:
- Prawfsblawg, by Howard Wasserman (Florida International)
- SCOTUSblog, by Neal Devins & Tara Grove (William & Mary)
Friday, December 7, 2012
SCOTUS Cert Grants of Interest: Hollingsworth v. Perry; U.S. v. Windsor; Oxford Health Plans v. Sutter
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
Not surprisingly, the cert grants in two cases on same-sex marriage—Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307)—have garnered considerable attention. The Court asked the parties in these cases to brief some additional questions that may be of particular interest to our readers, including an issue that’s has been all over the Court’s docket this Term – standing.
In Hollingsworth, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: whether petitioners have standing under Article III, §2 of the Constitution in this case.
In Windsor, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.
In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.
The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.
Tuesday, December 4, 2012
Professors Mitchell Polinsky (Stanford) and Steven Shavell (Harvard) have posted on SSRN a draft of their article, Costly Litigation and Optimal Damages. Here’s the abstract:
A basic principle of law is that damages paid by a liable party should equal the harm caused by that party. However, this principle is not correct when account is taken of litigation costs, because they too are part of the social costs associated with an injury. In this article we examine the influence of litigation costs on the optimal level of damages, assuming that litigation costs rise with the level of damages.