Civil Procedure & Federal Courts Blog

SCOTUS Decision in Walden v. Fiore: More on Personal Jurisdiction

Today the Supreme Court issued a unanimous decision in Walden v. Fiore. The case is a Bivens action against an officer involved in seizing cash that the plaintiffs were carrying through the Atlanta airport. Justice Thomas’s unanimous opinion begins: “This case asks us to decide whether a court in Nevada may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Geor­gia would delay the return of funds to plaintiffs with connections to Nevada.” The answer? No. From the final paragraph:

Well-established principles of personal jurisdiction are sufficient to decide this case. The proper focus of the “minimum contacts” inquiry in intentional-tort cases is “‘the relationship among the defendant, the forum, and the litigation.’” Calder, 465 U. S., at 788. And it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State. In this case, the application of those principles is clear: Petitioner’s rele­vant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdic­tion.

Here are some highlights from the opinion:

 

Continue reading

Class Actions and Mandatory Arbitration: GVR on CarMax Cert Petition

Plaintiffs filed class complaints against CarMax, alleging wage and hour violations.  The trial court granted CarMax's motion to compel arbitration, and the California Court of Appeals reversed. 

SCOTUS granted CarMax's petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of American Express Co. v. Italian Colors Restaurant, 570 U.S. ___ (2013).

The Washing Machine Trilogy: SCOTUS Denies Cert. in Three Class Actions

Today the Supreme Court denied certiorari in three cases that have come to be known as the “smelly washing machine” class actions. In all three, the lower court certified the class action, and the defendants—invoking Wal-Mart and Comcast—sought certiorari. The cases are:

• Whirlpool Corp. v. Glazer (S.Ct. No. 13-431), from the Sixth Circuit
• Sears Roebuck & Co v. Butler (S.Ct. No. 13-430), from the Seventh Circuit
• BSH Home Appliances Corp. v. Cobb (S.Ct. No. 13-138), from the Ninth Circuit (which did not issue an opinion but denied permission under Rule 23(f) to appeal the district court’s order granting class certification).

 

More on the Proposed Abrogation of Rule 84

Brooke Coleman has posted a guest blog entry on the patent blog, PatentlyO, regarding the proposed abrogation of Rule 84 and the official forms.

Unprecedented Number of Public Comments on Proposed FRCP Changes

Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules.  He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned ­comments with a committee of the Judicial Con­ference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."

 

Supplemental Jurisdiction Over State-Law Claim Proper Despite Plaintiff's Statement in Brief of "Dismissal" of Federal Claims

Plaintiff Thomas, a union member and an employee of U.S. Steel, was a team leader at a facility in Minnesota.  He had an altercation with one of the employees under his supervision, and that employee reported the incident as harassment.  At a fact-finding meeting held to determine what happened, the union representative attending the meeting made several allegedly defamatory comments about plaintiff, such as “[Thomas] has been verbally abusive to others for the past five years,” and plaintiff was thereafter removed from his position as team leader.

In his second amended complaint against the union and the union representative, plaintiff asserted federal labor-law claims and a state-law claim of defamation.  The defendants moved for summary judgment on all of the claims.  In his memorandum in opposition to the motion, plaintiff stated “the [Collective Bargaining Agreement] is not implicated in any of Plaintiff’s claims and as such [he is] dismissing all claims except the defamation claim . . .”  The district court granted summary judgment.

On appeal, the Eighth Circuit sua sponte raised the question of whether the district court maintained subject matter jurisdiction to decide the defamation claim, after plaintiff stated he was dismissing the federal claims.  The court held that the district court had jurisdiction: "we are not persuaded that an attempt to dismiss federal claims in a memorandum in opposition to a motion for summary judgment is the equivalent of filing an amended complaint because such act does not satisfy the requirements of Federal Rule of Civil Procedure 15.  We therefore hold that because Thomas failed to follow Rule 15’s procedures and nothing in the district court’s order or the record suggests that leave to amend the complaint was granted, the federal claims were not withdrawn from the second amended complaint and remained before the district court until those claims were dismissed by the court in its order. . . . [T]the claims were merely abandoned for purposes of argument, not removed from the second amended complaint."

Having determined that the district court had subject matter jurisdiction, the court further concluded that the district court properly exercised supplemental jurisdiction over Thomas’s state-law defamation claim, “[g]iven the substantial amount of time and judicial resources expended in this case and the well-settled principles of state law concerning defamation."

On the merits of Thomas’s defamation claim, the court reversed the grant of summary judgment, finding genuine issues of material fact.  Thomas v. United Steelworkers Local 1938, No. 12-3625 (8th Cir. Feb. 20, 2014).

Tidmarsh on Civil Procedure Reforms in the U.K.

Now on the Courts Law section of Jotwell is a review by Jay Tidmarsh (Notre Dame) entitled Jackson.

It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson. 

 

Extended Deadline for Submitting Comments on the Proposed FRCP Amendments

Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:

NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.

Download USCourts.gov pdf 

 

Coleman on the Proposed Amendments to the FRCP Discovery Rules

Over on the ACS blog is a post by Prof. Brooke Coleman (Seattle) entitled The Real Cost of Litigation Reform: Justice, Not Discovery Costs, Are at Stake, which discusses the current proposals to amend the discovery provisions of the Federal Rules of Civil Procedure. It concludes:

Our litigation system necessarily costs money. But, the purpose of the system is to achieve justice. No doubt, the costs should be contained as much as possible, but that containment should be achieved without sacrificing basic access to our federal system of courts. The proposed discovery rules incentivize producing parties to hold back information that is necessary to get to the truth, and they further burden requesting parties with proving that they need materials before they can even know what that information is. These proposals may make CEOs and general counsels feel more sanguine about the bottom line of their litigation costs, but they should provoke a great amount of dread in the rest of us. Corporations are less likely to be held accountable for their misdeeds if these changes are made. That cost alone renders the current litigation reform proposals unjustified.

 

To Say What The Law Is

The NBA starts its all-star break today. The U.S. Supreme Court is on break as well, and it too is right at the midpoint of the season. The Term has already been quite active on the civil procedure and federal courts front, with decisions on personal jurisdiction, Younger abstention, transfer of venue, the Class Action Fairness Act, and appellate jurisdiction. And there’s more on the horizon:

• Walden v. Fiore (venue and personal jurisdiction);
• Halliburton v. Erica P. John Fund (class actions);
• Wood v. Moss (on qualified immunity and, perhaps, pleading standards more generally);
• Highmark v. Allcare and Octane Fitness v. Icon Health (two cases on awarding attorneys’ fees in patent cases);
• Petrella v. MGM (laches in civil copyright claims)
• Executive Benefits Insurance Agency v. Arkison (Article III and bankruptcy proceedings);
• UBS Financial Services v. Union de Empleados de Muelles (Rule 23.1’s pre-suit demand requirement)

Why do we pay so much attention to these cases? For most court-watchers, it’s not because there is a strong interest in whether a Massachusetts gravel supply company underpaid its benefit fund obligations. Rather, it’s because of what the Supreme Court’s decisions mean going forward. Because of stare decisis, judicial decisions can prospectively bind future courts just as an Act of Congress or a Federal Rule of Civil Procedure can. In many areas of procedure, Supreme Court decisions may be the most significant lawmaking acts we’re going to see.

With that in mind, I thought I would share a link to my recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Virginia L. Rev. 1737 (2013). The article was driven in part by the struggle to figure out the precedential effect of controversial Supreme Court decisions like Wal-Mart and Iqbal. But I try to tackle more generally the question of what parts of a judicial decision should actually create binding law, and in what way. Here’s the abstract: 

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions — Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal — turn this conventional wisdom on its head. In both cases, what the Court said about the governing rules was not inherently controversial, and would leave courts with considerable flexibility going forward. But what the Court did in applying those rules — the ultimate results in Wal-Mart and Iqbal — could be very destabilizing if stare decisis mandates consistency with those results in future cases.

This article assesses competing approaches to stare decisis, and argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case. While the end result may be instructive, enlightening, or valuable for any number of reasons, it should not create binding obligations on future courts as a matter of stare decisis. A rules-only approach is an unconventional position (even those who favor rule-based stare decisis typically presume that consistency with results is also required). But it strikes the optimal balance. To infer binding obligations from results alone creates a risk that — as with Wal-Mart and Iqbal — future courts will be forced to intuit more radical legal changes than the precedent-setting court actually embraced. Put simply, a judicial decision should create binding law only to the extent that it says what the law is. Unless and until new legal rules are declared (whether by the judiciary in later cases or by legislation), courts should be free to operate within the existing legal framework, without being required to reconcile their decisions with the mere results of earlier ones.

Thanks again to the editors at the Virginia Law Review, who did a fantastic job on the article, and to the many colleagues who gave me such terrific feedback and suggestions. 

 

Quintanilla on Critical Race Empiricism and Twombly/Iqbal

Victor D. Quintanilla has published Critical Race Empiricism: A New Means to Measure Civil Procedure, 3 U.C. Irvine L. Rev. 187 (2013).

From the Introduction:

In this Article, I first discuss why social psychology offers a fertile source for both theory and methods to explore CRT. Drawing on social-psychological theory and methods, I then conduct an empirical legal study of judicial decision making under the U.S. Supreme Court's new, highly subjective pleading standard. Although one of my previous projects yielded similar findings, I have updated my empirical legal analysis in three ways. First, I have extended the time horizon from eighteen months to twenty-four months, increasing the sample size of cases I analyze, and thereby increasing the power of my study. Second, I now compare and contrast how White and Black judges apply both the old and new pleading standards. This comparison offers a baseline to evaluate whether the new pleading standard produces differences in how White and Black judges decide motions to dismiss Black plaintiffs' claims of race discrimination. Third, to assess whether the race of federal judges predicts how they apply the new pleading standard, I conducted multiple and sequential regressions, which pitted judges' race against their political ideology.

 

This enhanced empirical legal study supports the conclusion that the new pleading standard serves as a context for aversive racism, implicit bias, and lay theories of racism to operate against stereotyped-group members who assert claims of discrimination. Under notice pleading, White and Black judges decided discrimination claims similarly; yet under plausibility pleading, White and Black judges decided these claims differently. White judges were much more likely to dismiss the claims of stereotyped-group members, even after controlling for political ideology. This strongly suggests that, because plausibility pleading requires judges to draw on their “judicial experience and common sense,” federal judges are drawing on their lay theories of discrimination, their priors, their schemas, and their stereotypes when judging the plausibility of discrimination claims. These findings also suggest that implicit bias is operating against Black plaintiffs. This empirical study is but one of many means to harness empirical methods to explore CRT. The study, moreover, illustrates how infusing CRT with empirical legal methods illuminates implicit bias in legal decision making and the process by which race and law interact.

 

Kagan on Ginsburg and Civil Procedure

Adam Liptak reports in the New York Times on last week’s appearance by Justices Ginsburg (Brooklyn) and Kagan (Manhattan) at the New York City Bar Association. A few of the funnier bits from Justice Kagan’s lecture involve civil procedure. From the article:

Justice Kagan also had a little fun with Justice Ginsburg’s writing and interests. “As a law professor, she was a pathmarking scholar of civil procedure,” Justice Kagan said, and then paused. “Pathmarking. Have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”

Justice Ginsburg is also an expert in comparative civil procedure, Justice Kagan said: “She wrote what I am confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg.”

Joint Comment on the Proposed FRCP Amendments

This week, some colleagues and I submitted a joint comment opposing the recently proposed amendments to the Federal Rules of Civil Procedure. Our letter addresses the proposals regarding the scope of discovery as defined by Rule 26(b)(1), the reduced presumptive limits on discovery devices, and the elimination of Rule 84 and the Forms. From the introduction: 

In our judgment, two key issues bear close consideration by the Committee as it considers how to proceed: (1) What problem does the Committee seek to solve? (2) On balance, how likely is it that the proposed amendments will improve the status quo? As in 1993 and 2000, the Committee is focused on addressing a perceived problem of excessive discovery costs. In supporting the current proposed amendments, the Committee recognizes that empirical data show no widespread problem, but nevertheless hopes that new across-the-board limits on discovery will lessen discovery costs in the small number of complex, contentious, high stakes cases where costs are high. The Committee is correct about the data: most critically, the Federal Judicial Center’s (“FJC”) 2009 closed-case study shows that in almost all cases discovery costs are modest and proportionate to stakes. As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.*** In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.

The comment was submitted on behalf of myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alexander Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard).

 

Young on Erie

Prof. Ernest Young (Duke) has posted on SSRN his article, A General Defense of Erie Railroad Co. v. Tompkins, 10 J. Econ. L. & Pol’y 17 (2013). Here’s the abstract:

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision of all time” (Suzanna Sherry). Other scholars, such as Caleb Nelson and Michael Green, have been less damning in their conclusions but nonetheless raised serious questions about Erie’s reasoning. Out in the real world, Erie’s restrictive vision of federal lawmaking has been undermined and circumvented by unfettered executive lawmaking and expansive theories of federal common law.

 This article undertakes to rescue Erie from its critics. Rather than reinventing the case’s rationale, I argue that Justice Brandeis’s reasoning was fundamentally sound. Although the case Erie overruled — Swift v. Tyson — was surely correct when decided, Justice Brandeis rightly read the Rules of Decision Act to foreclose the broad practice of “general federal common law” that had arisen by the end of the nineteenth century. And Brandeis was right to worry about divergence between the law applied in state and federal courts sitting within the same jurisdiction. Most important, Erie announced a constitutional principle of judicial federalism — that federal courts may not make law on their own, even in areas where Congress could legislate. This principle forms the intellectual core of modern federalism doctrine, which is primarily concerned with procedural and political limits on national lawmaking.

More ambitiously, I hope that by shoring up Erie’s intellectual foundations this essay may lend support to the vision of limited federal lawmaking that Erie embodied — that is, one in which the federal separation of powers reinforces federalism by limiting the occasions on which federal lawmaking may displace state law. That vision is of more than theoretical import. Its implications may govern practical controversies ranging from the domestic force of customary international law to the preemptive effect of federal regulatory policies on state tort law. Likewise, in an era of resurgent dynamism at the state level, Erie’s respect for the preservation of state prerogatives in the absence of a federal legislative consensus takes on renewed importance.

 

Call for Nominations: 2015 AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2015 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg, and in 2014 the award honored Catharine A. MacKinnon.  Both of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.

 

The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years.  The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

 

The Section is now seeking nominations for this most prestigious award. The nominations from 2014 will be automatically included for consideration for the 2015 award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award.  As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2015 AALS Annual Meeting. 

 

Please submit your nomination by filling out this electronic form by March 3, 2014. Please note that only nominations submitted via the electronic form by the deadline will be accepted.

Final Public Hearing on the Proposed Amendments to the FRCPs (Feb. 7 in Dallas)

Tomorrow, the Judicial Conference Committee on Rules of Practice and Procedure is holding its final public hearing on the recent set of proposed amendments to the Federal Rules of Civil Procedure. Here are some links:

• The draft of the proposed amendments
• Comments received (over 500 uploaded so far)
• Transcript of November hearing in Washington, D.C.
• Transcript of January hearing in Phoenix

The public comment period closes on February 15, 2014. You can submit comments here.

 

SEALS 2014 Conference Registration Opens Today

The annual conference of the Southeastern Association of Law Schools will be held August 1-7, 2014, at the Omni Hotel on Amelia Island, Florida.  Registration opened this morning.  Frequently, the conference hotel fills up quickly, so you should hurry.

The full program is here.

 

Glancing through the schedule, it looks like these are the programs that directly relate to Civil Procedure or Federal Courts (if I overlooked one, I apologize):

Supreme Court and Legislative Update: Business and Regulatory Issues

This part of the Supreme Court and Legislative Update panels focuses on decisions relating to corporate issues, civil litigation, and administrative and business issues, as well as important legislation enacted by Congress or the states.

 

Speakers: Professor Christopher Green, The University of Mississippi School of Law; Professor Erin Hawley, University of Missouri School of Law; Professor Joan Heminway, The University of Tennessee College of Law; Professor David Hricik, Mercer University Law School; Professor Andrew Siegel, Seattle University School of Law; Professor Douglas Williams, Saint Louis University School of Law

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Discussion Group: Civil Procedure Discussion Group: Procedural Hurdles and the Day in Court

The judicial process has transformed over the last decades, which has impacted the ability of plaintiffs to obtain a day in court. Federal statutory and rule revisions, as well as recent Supreme Court decisions, have made marked changes in the enforcement of arbitration clauses, federal subject matter jurisdiction, personal jurisdiction, venue, pleading standards, class certification standards, and the discovery process. These changes have combined to place greater emphasis on the pretrial process at the expense of the availability of a trial. This discussion group will explore these changes, at both an individual and collective level, and the resulting changes to the American system of procedure. Discussants will exchange papers before the conference examining these issues from a variety of perspectives.

 

Moderators: Professor Michael Allen, Stetson University College of Law; Professor Thomas Metzloff, Duke University School of Law

 

Discussants: Professor Donald Childress III, Pepperdine University School of Law; Professor Scott Dodson, University of California, Hastings, College of the Law; Professor Richard Freer, Emory University School of Law; Professor Paul Gugliuzza, Boston University School of Law; Professor Megan LaBelle, American University, Washington College of Law; Professor Benjamin Madison, Regent University School of Law; Professor Philip Pucillo, Michigan State University College of Law; Professor Charles Rocky Rhodes, South Texas College of Law; Professor Cassandra Robertson, Case Western Reserve University School of Law; Professor Howard Wasserman, Florida International University College of Law

 

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NEW SCHOLARS COLLOQUIA (Panel #6)

Civil Procedure and Courts

 

Speakers: Professor Jason Parkin, Pace University School of Law, Due Process Disaggregation (Mentor: Professor Benjamin Barton, The University of Tennessee College of Law); Professor Victoria Shannon, Washington and Lee University School of Law, Regulating the Procedural Facet of Third-Party Funding (Mentor: Professor Danielle Holley-Walker, University of South Carolina School of Law); Professor Jessica Steinberg, The George Washington University Law School, Demand Side Reform in the Poor People's Court (Mentor: Professor Cassandra Burke Robertson, Case Western Reserve University School of Law)

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Judicial Deception

Some lawyers and scholars believe Judges mischaracterize facts and law leading to confusion about the meaning of decisions as well as questions about the integrity of the judicial system. Yet the rhetoric of the profession may accepting fictions that mask problems and uncertainty caused by misstatements in judicial opinions. These fictions may also perpetuate the judiciary's apolitical image.

 

To what extent should scholars call attention to instances of judicial misinformation? To what extent should judges object to misleading statements in other judges' opinions? To what extent do compromises in appellate courts justify misstatements of prior doctrine? This panel will ask whether misleading statements in judicial opinions are a serious problem and, if so, what should be done about it.

 

Moderator: Professor Steve Wermiel, American University, Washington College of Law

 

Speakers: Professor Michael Dimino, Widener University School of Law; Professor Eric Segall, Georgia State University College of Law; Professor Mark Tushnet, Harvard Law School

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Discussion Group: Mandatory Arbitration and Justice

Mandatory binding arbitration has come under increasing scrutiny in Congress, the Supreme Court, and public discourse. Critics argue that the process is unfair because it is not truly consensual or because it lacks important procedural safeguards. By contrast, defenders claim that baseline norms of fairness are presupposed in the idea of arbitration and that outcomes for consumers and employees are at least as good as those in litigation.

 

Is justice possible in mandatory arbitration? How important is it in relation to other values such as autonomy and efficiency? How should we measure “justice”? We will discuss both historical and contemporary focuses, as well as individual and group perspectives.

 

Moderators: Professor Hiro Aragaki, Loyola Law School, Los Angeles; Professor Andrea Doneff, Atlanta's John Marshall Law School

 

Discussants: Professor Sarah Cole, The Ohio State University, Moritz College of Law; Professor Jaime Dodge, University of Georgia School of Law; Professor Richard Frankel, Drexel University, Earle Mack School of Law; Professor Michael Green, Texas A&M University School of Law; Professor Jill Gross, Pace University School of Law; Professor Stephen Ware, University of Kansas School of Law; Professor Maureen Weston, Pepperdine University School of Law; Professor Michael Yelnosky, Roger Williams University School of Law

 

 

 

 

 

Registration for ABA Litigation Section Annual Conference Opens

The Section of Litigation of the American Bar Association will hold its Annual Conference in Scottsdale, Arizona at the Phoenician, April 9-11, 2014.  The brochure is available here.  Register here.

The keynote speaker will be Janet Napolitano.

Thomas on Judicial Restraint (or the Lack Thereof)

Suja Thomas' recent article, How Atypical, Hard Cases Make Bad Law (See, e.g., the Lack of Judicial Restraint in Wal-Mart, Twombly, and Ricci), was posted on SSRN some months ago, but has just been published at 48 Wake Forest L. Rev. 989.

Abstract:

Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.