Saturday, November 23, 2013

Dodson on Party Control of Judicial Authority

Scott Dodson (UC - Hastings) has posted Party Control of Judicial Authority to SSRN.

American civil litigation operates under a presumption of party control. Parties get to frame the lawsuit structure, factual predicates, and legal arguments, while the court intervenes to decide any motions the parties choose to make. Dedication to the principle of party control has expanded, spawning ubiquitous ex ante waivers and agreements that purport to bind the court, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind the trend is that parties do in fact exercise significant control over judicial authority. This Article challenges that assumption by introducing a theory of party/judge independence. Under this theory, parties have no control over judicial authority except where specifically granted such control by law. This theory of party/judge independence spawns a correlative theory of party/law independence, which posits that parties cannot change the law governing the court. Together, these theories of party/judge and party/law independence mean that the law — not party agreement — binds the court; and even when parties can lawfully make litigation choices, those choices generally do not bind the court. Independence suggests that the trend toward litigation customization is on shakier footing than previously acknowledged, while reorienting some key elements of the normative debate surrounding customization. Independence also exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. Together, the theories of party/judge and party/law independence shift the way the federal litigation system views the relationship among parties, courts, and the law.


November 23, 2013 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 21, 2013

Mullenix on The Extraterritorial Reach of American Courts

Professor Linda S. Mullenix (University of Texas School of Law) has posted "Personal Jurisdiction Stops Here: Cabining the Extraterritorial Reach of American Courts" on SSRN.  The article is forthcoming in the University of Toledo Law Review.

Here is the abstract:  

In this 2013-14 term the Supreme Court will again return to its personal jurisdiction jurisprudence in two interesting cases: DaimlerChrysler AG v. Bauman, and Walden v. Fiore. While the Walden appeal asks the Court to revisit its "effects" and "purposeful direction" tests for a state’s ability to assert jurisdiction over a non-resident defendant, DaimlerChrysler’s appeal raises the sexier and more compelling issue of personal jurisdiction in the context of so-called F-cubed cases: lawsuits brought in an American court by foreign plaintiffs suing foreign defendants, based on events that took place in some foreign country. 

In recent years the Court twice has manifested its distaste for F-cubed litigation in American courts, repudiating such litigation based on a lack of subject matter jurisdiction of the U.S. courts to adjudicate such disputes. If the combined Kiobel and Morrison decisions have not completely destabilized the reach of American courts over transnational disputes, then the Court this term has the opportunity to hammer a final nail in this coffin by addressing subject matter jurisdiction’s twin doctrine: that of personal jurisdiction.

This term’s DaimlerChrysler case, the third time in as many years where the Court will evaluate whether American courts may assert personal jurisdiction over non-resident foreign defendants for injuries occurring either in the United States, or on foreign soil. Based on the Court’s general trend declining to allow the extraterritorial reach of American courts over foreign nationals as a matter of subject matter jurisdiction, it seems unlikely that the Court will reverse course and embrace an expansive doctrine of extraterritoriality in the guise of personal jurisdiction jurisprudence. 

Nonetheless, the Court’s personal jurisdiction doctrine has been so muddied and fractured over several decades that one can never predict with certainty where the Court will wind up. This article suggests that while the Court’s consideration of the DaimlerChrysler appeal most likely will look to the Court’s 2011 Goodyear decision relating to general jurisdiction, the Court’s companion opinions in McIntyre Machinery may offer a seductive analytical paradigm that diverts the Court into the ongoing debate between sovereignty and fairness theories of personal jurisdiction. Thus, in deciding the DaimlerChrysler appeal, although the Court’s Goodyear decision is the reigning precedent concerning general personal jurisdiction, it may well turn out that the Court’s McIntyre decision asserts more hydraulic pull with the Court.

November 21, 2013 | Permalink | Comments (0)

Morley on Consent Decrees

Michael Morley (Harvard) has posted Consent of the Governed or Consent of the Government? The Problems With Consent Decrees in Government-Defendant Cases to SSRN.

Consent decrees are a powerful mechanism through which government defendants can settle challenges to statutes and regulations, agency policies, and other administrative actions and determinations. Such decrees are troubling because they allow government agencies and officials to entrench their policy preferences against future change, impose legal restrictions and obligations on their successors, and constrain those successors’ discretion—all without following the procedures of Article I, § 7 or the Administrative Procedures Act, or a court determining that such relief is legally necessary. 

Consent decrees raise serious Article III concerns because a justiciable controversy does not exist when litigants have agreed on their respective rights and liabilities and seek a consent decree. That lack of adverseness between the parties should prevent a court from issuing a substantive judicial order that declares, establishes, or modifies the parties’ rights. Such litigants instead should be required to execute a settlement agreement, which is a private contract between the parties, and the court should dismiss the case. Limitations on government contracts such as the reserved powers doctrine and general prohibition on specific enforcement prevent settlement agreements in government-defendant cases from raising the same entrenchment-related risks as consent decrees. 

Justiciability issues aside, courts also lack a sufficient legal basis for issuing consent decrees in government-defendant cases. Such decrees cannot be justified by a government agency’s or official’s consent, because they lack statutory authority to bind their successors to their interpretations of legal provisions or to otherwise entrench restrictions on successors’ discretion. The decree similarly cannot be justified by the court’s inherent remedial authority, since a court does not determine whether a legal violation has occurred before approving a decree. 

If courts nevertheless continue to issue consent decrees despite the justiciability and statutory problems with them, significant modifications of present practice are necessary. A court should not issue a consent decree in a government-defendant case unless it confirms that the plaintiff has stated valid claims and that the relief is required to remedy the legal violations at issue. It also should require the government defendant to file an Anders-type brief to demonstrate that these requirements are satisfied, and allow for liberal intervention so that adversely affected third parties may argue against the proposed decree. This will ensure that courts have a valid basis for imposing such relief, and close a backdoor through which government litigants can improperly entrench their preferred policies, circumvent the traditional legislative and regulatory processes, and curtail the legal authority of successor administrations.


November 21, 2013 in Recent Scholarship | Permalink | Comments (0)

Monday, November 18, 2013

Another SCOTUS "Statement" on Class Actions (While Denying Cert.)

Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”

Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:

The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.

The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]

Continue reading

November 18, 2013 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Friday, November 15, 2013

SCOTUS Cert. Grant of Interest: Halliburton v. Erica P. John Fund

Today the Supreme Court granted certiorari in Halliburton Co. v. Erica P. John Fund (No. 13-317). Here are the questions presented:

1. Whether this Court should overrule or substantially modify the holding of Basic Inc. v. Levinson, 485 U.S. 224 (1988), to the extent that it recognizes a presumption of classwide reliance derived from the fraud-on-the-market theory.

2. Whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

Links to the cert-stage briefing and the Fifth Circuit’s opinion below available are at SCOTUSblog. If the name of this case sounds familiar, it’s been up to the Supreme Court before. In 2011, the Court unanimously decided that the plaintiff was not required to prove loss causation at the class-certification phase. But at the end of the opinion, Chief Justice Roberts alluded to the issues the Court will now confront:

Because we conclude the Court of Appeals erred by requiring EPJ Fund to prove loss causation at the certification stage, we need not, and do not, address any other question about Basic, its presumption, or how and when it may be rebutted. To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand.


November 15, 2013 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

"Lawsuit Abuse Reduction" Bill Passes House

H.R. 2655,  the so-called "Lawsuit Abuse Reduction Act of 2013," passed the House of Representatives yesterday 228-195 (sigh . . . ). 

In 2011, Professor Lonny Hoffman testified against this bill before the House Judiciary Committee. 

November 15, 2013 in Current Affairs, Federal Courts, In the News | Permalink | Comments (0)

Thursday, November 14, 2013

Clermont and Eisenberg on Plaintiphobia

Kevin Clermont and Theodore Eisenberg (Cornell) have posted Plaintiphobia in the Supreme Court to SSRN.

Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations of pretrial disposition during the last three decades, had a markedly anti-plaintiff impact. 


November 14, 2013 in Recent Scholarship | Permalink | Comments (0)

More Federal Courts' Opinions Available on Federal Digital System

From The Third Branch News:

A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.

The Judicial Conference approved national implementation of the project in September 2012, expanding participation from the original 29 courts. FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.

Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).


November 14, 2013 in Federal Courts, Web/Tech | Permalink | Comments (0)

Dodson and Starger Map SCOTUS Pleading Cases

Scott Dodson and Colin Starger have posted a one-page chart of Supreme Court pleading decisions.  FRCP 8 Pleading: Supreme Court Doctrine 1957-2011.


Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important pleadings decisions the Supreme Court has ever issued. Yet the voluminous commentary on these decisions has tended to gloss over the complicated genealogy of the Court's pleadings decisions from Conley v. Gibson to today. In particular, a number of under-appreciated cases, including Associated General, Papasan, and Broudo, laid foundation for the breakout Twombly decision. Commentary has further tended to elide subsequent cases, which appear to move away from Twombly and Iqbal, at least in result.

We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.

November 14, 2013 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Plaintiffs in Comcast Class Action Allowed to Attempt Recertification of a Narrowed Class

Following the Supreme Court's reversal of certification of an antitrust class in Comcast Corp. v. Behrend,  133 S. Ct. 1426 (2013), the district court in the case has allowed plaintiffs to present another motion for certification of a narrower class.  Glaberson v. Comcast Corp., No. 03-6604 (E.D. Pa. Nov. 13, 2013).

The court rejected Comcast's argument that the rule of mandate prevented the court from considering another motion for class certification, holding:

The Supreme Court reversed our prior certification order because the Plaintiffs’ proffered evidence on antitrust impact was not limited to the overbuilding theory, and thus failed the predominance requirement in Fed. R. Civ. P. 23(b)(3). Importantly, the Supreme Court did not decide as a matter of law that class-wide proof could never be established. Rather, the Supreme Court’s opinion clearly contemplates that a damages model that measured only the antitrust impact of the overbuilding theory, and also plausibly showed that the extent of overbuilding, absent deterrence would have been the same in all counties, or that the extent was irrelevant to any effect upon Comcast’s ability to charge supra-competitive prices, could be common evidence. Comcast Corp., 133 S. Ct. at 1435 n.6. Under the Third Circuit’s law of mandate, Plaintiffs’ ability to certify a significantly narrowed class based on a more limited antitrust impact model that satisfies Footnote 6 is a “matter[] left open by the mandate,” since it was not decided by the Supreme Court in the first appeal and deemed finally settled.

November 14, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Wednesday, November 13, 2013

New Short Articles from ABA Mass Torts Litigation Committee

The Fall 2013 newsletter from the ABA Mass Torts Litigation Committee has several blurbs of possible interest to Civil Procedure professors (the summaries below are in the newsletter's words), including:

Costa Concordia Actions: Florida Courts' Differing Views on Venue 

By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman

Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.

SCOTUS Aims to Resolve Circuit Split in CAFA Parens Patriae Actions 

Undoubtedly, the outcome of this case will impact the "jurisdictional gamesmanship" involved with the litigation of mass-torts actions.



November 13, 2013 in Class Actions, Mass Torts, Recent Scholarship, State Courts | Permalink | Comments (0)

Hearing on Proposed Amendments to the FRCPs

Last week the Advisory Committee on the Civil Rules held a hearing in Washington, D.C. on the most recent round of proposed amendments to the Federal Rules of Civil Procedure. See below for links to:

The public comment period closes on February 15, 2014.

November 13, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, November 7, 2013

Erickson on The New Professional Plaintiffs in Shareholder Litigation

Professor Jessica Erickson (University of Richmond School of Law) has posted on SSRN an article, forthcoming in the Florida Law Review, entitled "The New Professional Plaintiffs in Shareholder Litigation." 

The abstract states:

In 1995, Congress solved the problem of professional plaintiffs in shareholder litigation — or so it thought. The Private Securities Litigation Reform Act (PSLRA) was designed to end the influence of shareholder plaintiffs who had little or no connection to the underlying suit. Yet it may have failed to accomplish its goal. In the wake of the PSLRA, many professional plaintiffs simply moved into other types of corporate lawsuits. In shareholder derivative suits and acquisition class actions across the country, professional plaintiffs are back. They are repeat filers involved in dozens of lawsuits. They are the attorneys’ spouses, parents, and children. They may even be entities created for the primary purpose of filing litigation. These new professional plaintiffs have flown almost entirely under the radar of corporate law scholarship. This Article pulls back the curtain on professional plaintiffs, examining court filings and other public records in the first comprehensive study of professional plaintiffs’ role in corporate law. In most instances, professionalism is a good thing — but not when it comes to choosing plaintiffs.

November 7, 2013 | Permalink | Comments (0)

Wednesday, November 6, 2013

Bremer & Siegel on The Need to Reform 28 U.S.C. sec. 1500

Emily S. Bremer (Administrative Conference of the United States) and Jonathan R. Siegel (George Washington University Law School) have posted on SSRN an article, forthcoming in the Alabama Law Review, entitled Clearing the Path to Justice: The Need to Reform 28 U.S.C. 1500.

The abstract states:

Plaintiffs suing the United States face a little-known obstacle to justice: 28 U.S.C. § 1500. This statute prohibits the United States Court of Federal Claims from exercising jurisdiction over a claim if the plaintiff has the same claim pending in another court. This apparently sensible rule causes considerable trouble because a “claim” is understood to include all claims based on the same operative facts, and Congress has required that certain types of claims against the United States must go to different courts. Therefore, a plaintiff with multiple claims against the United States may neither be able to bring the claims together in one case nor split them into separate cases. Section 1500 may effectively compel such a plaintiff to pursue only one claim and abandon the others. This unjust result is contrary to fundamental principles of modern civil procedure, which allow a plaintiff to pursue multiple claims against a defendant. Worse, it serves no good purpose. This Article argues that Congress should repeal § 1500 to provide justice to plaintiffs with multiple claims against the United States.

November 6, 2013 | Permalink | Comments (0)

Still More on the Second Circuit's Order in the Stop-and-Frisk Case

Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:

More coverage here.

November 6, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Tuesday, November 5, 2013

Senate Judiciary Committee Hearing on Proposed Changes to FRCP Discovery Rules

In the midst of a week that’s chock full of civil procedure, we’re just moments away from a hearing of the Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts entitled “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” Here are the details and witness list:

Continue reading

November 5, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, November 4, 2013

SCOTUS, Class Actions & Cy Pres: Cert. Denied in Marek v. Lane, but with a Statement by Chief Justice Roberts

Today the Supreme Court denied certiorari in Marek v. Lane (No. 13-136), a closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

Scroll to the end of today’s order list, however, and you’ll find a “Statement of Chief Justice Roberts respecting the denial of certiorari.” Here’s the final paragraph of the Chief’s statement:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies. 


November 4, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Sunday, November 3, 2013

More on the Second Circuit's Order in the Stop-and-Frisk Case

We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:


November 3, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Benham on the First Amendment in Protective-Order Litigation

Dustin Benham has posted on SSRN his article Dirty Secrets: The First Amendment in Protective-Order Litigation, forthcoming in Cardozo Law Review.


Courts are split on whether the First Amendment limits judges' power to issue protective orders in the pretrial discovery context. Recent events highlight the importance of the issue. During the summer of 2013, a longstanding protective order in a priest-sex-abuse case was finally vacated. The discovery information made public included details about the offenders and information linking a high-ranking church official to efforts to shield church assets from victims’ abuse claims.

Other examples of important information kept from the public abound – pretrial discovery related to dangerous products, industry contamination of a city’s water supply, and domestic spying by the United States government have all been shielded at one time or another by protective orders. This Article contends that the First Amendment should provide significantly more protection for litigant speech in this context.


November 3, 2013 in Discovery, Recent Scholarship | Permalink | Comments (0)

Friday, November 1, 2013

A Big Week for Civil Procedure & Federal Courts

There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).


November 1, 2013 in Current Affairs, Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News, Supreme Court Cases | Permalink | Comments (0)