Friday, May 31, 2013

Campos on Jones on Judicial Review and the Lost Constitution

Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos (Miami) entitled Back to the Future. It reviews a recent article by Robert Jones (Northern Illinois), Lessons from a Lost Constitution, 27 J. L. & Politics 459 (2012).


May 31, 2013 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, May 28, 2013

Hubbard on the Empirical Effect of Shady Grove on Forum Shopping

William H. J. Hubbard, of University of Chicago Law School, published "An Empirical Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts" as University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 642 and U of Chicago, Public Law Working Paper No. 428.  It is posted on SSRN here. 


Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of original filings and removals in federal courts in New York that are consistent with the predicted forum shopping response to Shady Grove. In addition to providing the first empirical evidence of vertical forum shopping induced by a decision applying the Erie doctrine, this paper seeks to serve as a proof of concept for empirical research in this area. While there are significant obstacles to empirical research on the effects of Erie and its progeny, this paper outlines a methodology that may be feasible for future projects in this area.


May 28, 2013 in Recent Scholarship | Permalink | Comments (0)

SCOTUS Grants Cert in Another Class Action Fairness Act Case

Today the Supreme Court granted certiorari in Mississippi ex rel. Hood v. AU Optronics Corp. (No. 12-1036), which presents the question:

Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint.

You can find a link to the Fifth Circuit’s decision below and the cert-stage briefing at SCOTUSblog’s case file.

It will be the second Supreme Court case to interpret CAFA in as many Terms, following the decision this March in Standard Fire Insurance Co. v. Knowles.


May 28, 2013 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, May 22, 2013

Pereyra and Sunshine on Settlement Rates After Twombly and Iqbal

Victor Abel Pereyra and Benjamin Sunshine, of University of Illinois College of Law, have posted on SSRN their paper Access-to-Justice v. Efficiency: An Empirical Study of Settlement Rates After Twombly and Iqbal.


A party’s decision to settle may be affected by the plausibility pleading standard required by Twombly. While previous empirical studies have focused on motions to dismiss, this study attempts to find a relationship between settlement rates and the pleading standard. Our data and analysis show that the probability of settling after Twombly has decreased while the rates of settlements themselves are increasing. In particular, IP and civil rights cases are especially likely to settle and "meritorious" claims settle at a higher rate than "non-meritorious" claims. These findings question the current arguments that the Twombly pleading standard may be inhibiting access to justice and/or improving efficiency. The goal of conserving judicial resources may have been circumvented by litigant behavior as more cases are going on to litigation rather than settling. The access to justice arguments may have also been challenged in that more cases are being adjudicated after Twombly instead of less.


May 22, 2013 in Twombly/Iqbal | Permalink | Comments (0)

Friday, May 17, 2013

Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal

Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.


May 17, 2013 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal, Weblogs | Permalink | Comments (0)

Meyn on Comparing Civil and Criminal Discovery

Prof. Ion Meyn (Wisconsin) has posted on SSRN a draft of his article Discovery and Darkness: The Information Deficit in Criminal Disputes, which will appear in the Brooklyn Law Review. Here’s the abstract:

Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants. The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file. This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation. Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative. This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing. This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources. Certainly, greater access to the prosecutorial file and more resources will mitigate discovery deprivations that currently plague criminal defendants. But without extending a criminal defendant the power to direct an independent and formal investigation, adequate pretrial testing cannot occur. Evaluating the investigative tools that should be extended to a criminal defendant, the Article utilizes a case study to ascertain how the application of these tools might affect a pretrial investigation. Finally, the Article surveys and responds to policy arguments against permitting the participation of criminal defendants in criminal investigations.


May 17, 2013 | Permalink | Comments (0)

Thursday, May 16, 2013

Brescia and Ohanian on the Politics of Procedure

Raymond H. Brescia and Edward J. Ohanian, both of Albany Law School, have posted on SSRN their new paper, "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard." 


Is civil procedure political? In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings. That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief. For many, these rulings represented a sea change in civil pleading standards. Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge their claims across the line from conceivable to plausible.” In the years since their issuance, this standard has provoked many questions. One such question, which lurks behind all otherwise neutral rules of procedure is the following: could this apparently neutral principle of procedure be subject to political manipulation?

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.

The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.


May 16, 2013 in Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0)

Sequel to the Fifth Circuit’s Quorum Conundrum: Comer v. Murphy Oil II

Two years ago we covered the strange set of developments in Comer v. Murphy Oil USA, a class action lawsuit against a number of chemical and energy companies based on their alleged contribution to climate conditions that exacerbated the force and effect of Hurricane Katrina. The district court had dismissed the case on political question grounds, but a Fifth Circuit panel reversed — rejecting the political question argument and finding that the plaintiffs had standing. See 585 F.3d 855 (2009).

The en banc Fifth Circuit granted rehearing, although due to several recusals only nine of the sixteen Fifth Circuit judges were able to vote. Then one of those nine judges recused, thus depriving the en banc court of its quorum. However, the quorum-less en banc court chose not to revert to the Fifth Circuit panel’s decision, which would have reversed the district court’s dismissal and remanded the case for further proceedings. Rather, the quorum-less en banc court (per five of the remaining eight judges) dismissed the appeal in its entirety, thereby reinstating a district court ruling that had already been unanimously reversed by a three-judge Fifth Circuit panel. See 607 F.3d 1049 (2010).

In 2011, the plaintiffs filed a new lawsuit alleging many of the same claims. This week, a Fifth Circuit panel affirms the dismissal of that lawsuit, finding it barred by res judicata. In Comer II (No. 12-60291, May 14, 2013), the panel concludes that — despite the unusual chain of events at the Fifth Circuit two years ago — the first lawsuit satisfied all the elements of res judicata: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” [Slip Op. 7]


(Hat Tip: David Coale)

May 16, 2013 in Federal Courts, Recent Decisions | Permalink | Comments (2)

Tuesday, May 14, 2013

Strong on Commercial Arbitration

S.I. Strong (Missouri/Supreme Court Fellow) has posted two articles about international commercial arbitration to SSRN.

Beyond the Self-Execution Analysis:  Rationalizing Constitutional, Treaty and Statutory Interpretation in International Commercial Arbitration.  

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States.

Efforts have been made to place the debate about the New York Convention within the context of post-Medellin jurisprudence concerning self-executing treaties. However, that framework does not adequately address the difficult constitutional question as to what course should be adopted when a particular issue is governed by both a treaty and a statute that is meant to incorporate that treaty into domestic law.

This Article addresses that question by considering the role of and relationship between the New York Convention and the Federal Arbitration Act, and by providing a robust analysis of the constitutional, statutory and public international issues that arise in cases involving international treaties and incorporative statues. Although the discussion is rooted in the context of international commercial arbitration, the Article provides important theoretical and practical insights that are equally applicable in other types of public international law.

Discovery Under 28 U.S.C. §1782:  Distinguishing International Commercial Arbitration and International Investment Arbitration.

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to distinguish between requests made in the context of international commercial arbitration and requests made in the context of international investment arbitration. In so doing, the Article considers issues relating to grants of jurisdiction, state interests and standard interpretive canons.




May 14, 2013 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, May 13, 2013

SCOTUS cert grant on the ability of in forma pauperis filers to amend their complaints under the Prison Litigation Reform Act

Today the Supreme Court granted certiorari in Burnside v. Walters (No. 12-7892), which presents the question:

Whether the Sixth Circuit erred in holding—in conflict with all eleven other federal circuit courts of appeals—that the in forma pauperis statute, 28 U.S.C. § 1915(e)(2), prohibits indigent defendants from amending their complaints.

You can find a link to the decision below and the cert-stage briefing at SCOTUSblog’s casefile.


May 13, 2013 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Fifth Circuit Decision on Personal Jurisdiction, McIntyre, and the Stream of Commerce

Last week, the U.S. Court of Appeals for the Fifth Circuit issued an important decision on personal jurisdiction: Ainsworth v. Moffett Engineering, Ltd., No. 12-60155 (May 9, 2013). In an opinion by Judge Patrick Higginbotham (joined by Judges Jerry Smith and Jennifer Elrod), the court reaffirms its “stream-of-commerce approach to personal jurisdiction” [Slip Op. 1] in the wake of J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). Below are some excerpts (footnotes omitted). From Slip Op. 3-4:

In cases involving a product sold or manufactured by a foreign defendant, this Circuit has consistently followed a “stream-of-commerce” approach to personal jurisdiction, under which the minimum contacts requirement is met so long as the court “finds that the defendant delivered the product into the stream of commerce with the expectation that it would be purchased by or used by consumers in the forum state.” Under that test, “mere foreseeability or awareness [is] a constitutionally sufficient basis for personal jurisdiction if the defendant’s product made its way into the forum state while still in the stream of commerce,” but “[t]he defendant’s contacts must be more than ‘random, fortuitous, or attenuated, or of the unilateral activity of another party or third person.’”

On interlocutory appeal, Moffett argues that application of the Fifth Circuit’s stream-of-commerce approach is no longer proper after the Supreme Court’s decision in McIntyre…. We disagree and find that application of the stream-of-commerce approach in this case does not run afoul of McIntyre’s narrow holding….

Continue reading

May 13, 2013 in Recent Decisions | Permalink | Comments (0)

Tuesday, May 7, 2013

Wake Forest Seeks Civil Procedure VAP

From our friends at Wake Forest comes this announcement:

Wake Forest University School of Law welcomes applications for a Visiting Assistant Professor (VAP) to teach Civil Procedure in the 2013-2014 academic year, and perhaps beyond.  Additional information is here.

May 7, 2013 | Permalink | Comments (0)

Monday, May 6, 2013

New blog tracks Federal Arbitration Act cases

Professor Imre Szalai has created a new blog,, posting about recent state and federal cases involving the Federal Arbitration Act.


May 6, 2013 in Current Affairs, Recent Scholarship | Permalink | Comments (0)

Singer and Young on Bench Presence

Jordan Singer (New England Law) and Judge William Young (D. Mass.) have posted two articles about bench presence to SSRN.

Bench Presence: Toward a More Complete Model of Federal District Court Productivity:

This Article considers what it means for a federal district court to be productive, and how such productivity might be assessed. Previous studies have focused almost exclusively on the speed of case processing, equating a court’s productivity (explicitly or implicitly) with the court’s rate of docket clearance or a case’s average time from filing to disposition. This thin definition of “productivity,” however, is not consistent with either classical economic understandings of the term or common public expectations of the courts. In particular, analyzing the speed or efficiency of a court says nothing about whether the parties or the public view the adjudicative process as accurate, fair, transparent, and dignified. 

We seek to bridge the disconnect between existing measures of court productivity and real-world expectations of the district courts by offering a more robust model of district court productivity that explicitly incorporates measures of accuracy and procedural fairness. We then introduce a new metric for procedural fairness called bench presence. Bench presence is a measure of the time that a district judge spends on the bench, presiding over the adjudication of issues in a public forum. Bench presence provides a rough but meaningful proxy for many components of procedural fairness, by quantitatively capturing the degree to which parties and the public are directly exposed to the judge’s practices and procedural safeguards. It also refocuses the discussion of court productivity on the core role of the district judge: presiding over trials and open hearings.

 Measuring Bench Presence: Federal District Judges in the Courtroom, 2008-2012:

In a companion piece, the authors argued for a more comprehensive model of federal district court productivity which included, among other things, a measure of each court’s capacity and commitment to provide procedural fairness to litigants. The authors further proposed a new procedural fairness metric called bench presence, a measure of the time that district judges spend adjudicating issues in an open forum. 

This article examines real-world bench presence data from the Administrative Office of the U.S. Courts. On the surface, the numbers are disappointing for those who view courtroom time as integral to procedural fairness protections. Specifically, the data reveal a decline in total courtroom hours in more than two-thirds of the federal district courts between FY2008 and FY2012, and an overall national decline in total courtroom hours of more than 8 percent during that same period.

But there is encouraging news in the data as well. Strong levels of bench presence are not restricted to courts of a particular size, circuit, or docket composition, suggesting that there are no persistent structural barriers to any district court increasing the amount of time that its judges spend in the courtroom. In addition, there is only a weak correlation between a district court’s average courtroom hours per judge and its average time to case disposition, indicating that district courts need not choose between efficiency and procedural fairness in addressing their caseloads. Based on these findings, the authors urge judges to increase courtroom hours in their own districts, and invite scholars and court administrators to further investigate the potential of the bench presence metric.



May 6, 2013 | Permalink | Comments (0)

Sunday, May 5, 2013

NY Times on SCOTUS's Pro-Business Civil Procedure Decisions

Today’s New York Times features a story by Adam Liptak, Corporations Find a Friend in the Supreme Court, which discusses several of the Court’s recent decisions on civil procedure, including Comcast v. Behrend, Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, Kiobel v. Royal Dutch Petroleum, and Standard Fire Insurance v. Knowles.


May 5, 2013 in In the News, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, May 4, 2013

Company Cannot Assert Attorney-Client Privilege Against Its Director, Delaware Court Holds

Plaintiff is a director of the defendant Company, a Delaware corporation, and he owns an entity that was the Company's largest shareholder. The remaining directors of the Company are also defendants. The Board of Directors established a Special Committee to explore strategic alternatives for the Company. Plaintiff was a member of the Special Committee. Later, the entity owned by Plaintiff announced it would nominate candidates for election at the Company's annual meeting. The defendants then secretly "sprang into action" and 11 days later, Company counsel notified Plaintiff by email that a special Board meeting would occur the next day to approve a recapitalization in which an entity controlled by one of the defendants would emerge as the largest shareholder of the Company. At meetings of the Special Committee and the Board of Directors the next day, the recapitalization was approved over Plaintiff's negative vote. The day after that, the Company announced the recapitalization and also announced that it was postponing the annual meeting and deferring the record date. That same day, Plaintiff filed suit challenging the recapitalization and the postponement of the annual meeting and record date.

Plaintiff subpoenaed counsel to the Company and to the Special Committee for documents relating to the planning and scheduling of the special meetings and the structuring of the recapitalization. Defendants asserted the attorney-client privilege and work product protection.

The court granted Plaintiff's motion to compel, holding that until the day the Board voted to approve the recapitalization, the Company could not assert either privilege against Plaintiff, who was a director of the Company. After the Board voted to recapitalize, however, sufficient adversity existed between Plaintiff and the Company such that Plaintiff could no longer have a reasonable expectation that he was a client of the Board's counsel. Kalisman v. Friedman, 2013 Del. Ch. LEXIS 100 (Delaware Court of Chancery, April 17, 2013).


May 4, 2013 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Friday, May 3, 2013

Balkin on Erie

Over at Balkinization, Prof. Jack Balkin (Yale) has a post entitled Erie Railroad v. Tompkins and the New Deal Constitution. It begins:

Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products.  The video is available here.  Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55.  I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.

Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint.  Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent.  If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different.  It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.


May 3, 2013 in Federal Courts, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Wednesday, May 1, 2013

Ninth Circuit Requires Evidentiary Hearing on Enforceability of Forum Selection Clause

            Pro se plaintiff Robin Petersen was recruited to work in Saudi Arabia as a flight instructor for a subsidiary of Boeing Corporation.  His complaint alleged that on arrival in Saudi Arabia, he was forced to sign an employment agreement which he was not given time to read and which he was told he must sign or else return immediately to the U.S. at his own expense.  This agreement contained a forum selection clause requiring any contractual disputes to be resolved in the Labor Courts of Saudi Arabia.  Petersen then alleged a series of wrongful incidents in Saudi Arabia perpetrated by his employer. Finally returning to the U.S. after the intervention of the U.S. Consulate, he filed suit alleging breach of contract and other claims.  He submitted an affidavit along with his complaint claiming that he was not financially capable of returning to Saudi Arabia to pursue the lawsuit, that he would be subject to harsh conditions there, and that the forum selection clause was foisted on him through fraud and undue pressure.  He also submitted a report from the U.S. Department of State indicating that, among other things, he would not be able to obtain a fair trial in Saudi Arabia.

            The district court dismissed the lawsuit without a hearing under Rule 12(b)(3), holding the forum selection clause enforceable.  The district court also denied leave to amend the complaint, although plaintiff submitted additional information indicating that he would not even be eligible for a visa to Saudi Arabia.

            The Ninth Circuit reversed and remanded for an evidentiary hearing.  Under M/S Bremen v. Zapata Off-Shores Co. and Carnival Cruise Lines, Inc. v. Shute, a forum selection clause may be unenforceable if, for example, “the inclusion of the clause in the agreement was the product of fraud or overreaching,” or “the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced.”  The court held that the complaint and other materials raised an issue of fact as to whether the forum selection clause was enforceable under Bremen, thus requiring an evidentiary hearing, and that the district court abused its discretion by denying leave to amend the complaint. Petersen v. Boeing Co.,, No. 11-18075 (9th Cir. April 26, 2013).


May 1, 2013 in Recent Decisions | Permalink | Comments (0)

Tidmarsh on Lemos & Hensler on Adequate Representation in Parens Patriae Suits by State A-Gs

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).


May 1, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)