Civil Procedure & Federal Courts Blog

Levy on Huq on the Rationing of Constitutional Remedies

This month’s essay on the Courts Law section of JOTWELL is Rationing Constitutional Justice by Marin Levy. Marin reviews Aziz Huq’s recent article, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. (forthcoming 2015). 

 

 

Note on Class Ascertainability

The Yale Law Journal has published a note by student Geoffrey C. Shaw on Class Ascertainability.  It may be of interest given the Civil Rules Advisory Committee's recent report to the Standing Committee that "ascertainability" perhaps should be added to the list of class action topics currently being studied by the Rule 23 Subcommittee.

The May 2, 2015 Advisory Committee Report (available at p. 178 of the Standing Committee's Agenda Book for its May 2015 meeting) states:

Recently there has been much concern about what must be shown to demonstrate that a proposed class is “ascertainable,” largely resulting from Third Circuit decisions.  This concern seems to be limited to Rule 23(b)(3) class actions.  See Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2014) (ascertainability is not required in a class action seeking only injunctive relief).  And the Third Circuit treatment of the issue may be evolving.  See, e.g., Byrd v. Aaron’s Inc., ___ F.3d ___, 2015 WL 3887938 (3d Cir., April 16, 2015), in which the panel stated that “it is necessary to address the scope and source of the ascertainability requirement that our cases have articulated” and added that “[w]e seek here to dispel any confusion.”  (Judge Rendell, concurring in reversal of the district court’s denial of certification, suggested that “it is time to retreat from our heightened ascertainability requirement in favor of following the historical meaning of ascertainability under Rule 23.”)

The Subcommittee intends to examine this issue; it is not certain at present whether a rule change might be indicated. 

The abstract for the Note in the Yale Law Journal on Class Ascertainability is:

ABSTRACT. In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.

This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.

 

Wasserman on Mixed Signals on Summary Judgment

Howard Wasserman has posted on SSRN  his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.

Abstract:

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.

Female Lawyers Less Likely to be First Chair, Especially in High-Dollar Cases

From The Legal Intelligencer (by Gina Passarella, July 14, 2015):

Women comprise a disproportionately low percentage of lead trial counsel compared to their representation in the overall legal profession, a study for the American Bar Association's Commission on Women in the Profession has found.

While women make up at least 36 percent of the profession, according to the study, they comprise 24 percent of first-chair roles in civil cases. And those numbers are lower when looking at tort cases or the representation of businesses and individuals. Women are more highly represented in lead counsel roles on behalf of government entities or by working as prosecutors, the study found.

The study was performed by former commission chair Roberta Liebenberg of Fine, Kaplan and Black in Philadelphia and current commissioner Stephanie Scharf of Scharf Banks Marmor in Chicago. The two litigators based their survey on data from case filings in 2013 in the U.S. District Court for the Northern District of Illinois in an effort to capture a large district with a diverse caseload.

For more, click here. 

Burbank and Farhang on Class Actions and the Counterrevolution Against Federal Litigation

Stephen B. Burbank and Sean Farhang have posted on SSRN their article, Class Actions and the Counterrevolution Against Federal Litigation.

Abstract:

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.

Call for Papers: Best Untenured Article on Fed Courts

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
 
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 
 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015(date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

 

Post-Obergefell Update from Alabama: Federal Injunction Now in Effect

In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”

According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.