Monday, August 31, 2015
Remember Edwards v. First American Corp., the putative class action under RESPA filed in 2007? The Supreme Court granted cert in 2011 on the issue (as slightly expanded on this blog at the time): “Does [a private purchaser of real estate settlement services] have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), [in the absence of any claim that the alleged violation affected the price, quality, or other characteristics of the settlement services provided]?”
After full briefing and oral argument, the Supreme Court issued a one-sentence order in 2012 dismissing the writ as improvidently granted. (Another case, Spokeo v. Robins, is currently pending before the Court for the October 2015 term and supposedly involves somewhat the same issue.)
Anyway, after the Supreme Court dismissed the writ in Edwards, the case trundled along in the district court. Plaintiffs moved for class certification of a “nationwide class consisting of all home buyers who entered into a federally-related mortgage transaction using one of thirty-eight title agencies that sold a minority ownership interest to First American and, in the same transaction, agreed to refer future title insurance business to First American.” The district court denied class certification (again).
The Ninth Circuit just reversed in part (again). First, the court disagreed with the district court’s holding that “individual inquiries were required to determine whether First American overpaid for its ownership interests in each title agency.”
Monday, August 24, 2015
Conference: Magistrate Judges and the Transformation of the Federal Judiciary (Las Vegas, 9/25-9/26)
Here is the announcement:
The UNLV School of Law and the Duke School of Law are hosting a conference Magistrate Judges and the Transformation of the Federal Judiciary on September 25-26 in Las Vegas, NV. This conference may be the first effort to explore the critically important institution of magistrate judges from interdisciplinary, empirical, theoretical, and practical perspectives. This conference features political scientists, legal academics, statisticians, magistrate judges, district court judges, appellate court judges, and officers from the Administrative Office of U.S. Courts. Although the federal administration of justice is the subject of much academic study, the vital system of magistrate judges is often overlooked. Unlike many traditional academic conferences, this conference prioritizes participation by judges: multiple judges are featured on every panel, and every panel will elicit audience (especially judicial) participation in the form of comments and questions.
Academic participants include Christina Boyd (Georgia—Political Science), Tracey George (Vanderbilt), Mitu Gulati (Duke), Nancy King (Vanderbilt), Jack Knight (Duke), David Levi (Duke), Nancy Welsh,(Penn St) and Albert Yoon (Toronto). From UNLV, Dan Hamilton, Ann McGinley, Jeff Stempel and Jean Sternlight are participating. Federal judges who are panelists include Robert Collings (MA), Valerie Cooke (NV), Candy Dale (ID), Cam Ferenbach (NV), Michael Newman (OH), James O’Hara (KS), Philip Pro (NV), Johnnie Rawlinson (NV), and Neil Wake (AZ). Doug Lee and Tom Davis from the Administrative Office of U.S. Courts are also presenting a paper.
The conference begins at noon on Friday, September 25 and ends at noon the following day. Registration information is available here. For additional information you may also contact Thomas Main, firstname.lastname@example.org.
Friday, August 21, 2015
Appearing in the current issue of the Journal of Empirical Legal Studies is an article by Gregory C. Sisk and Michael Heise entitled "'Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals."
The warp and woof of U.S. law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. Although the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the U.S. Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.
Wednesday, August 19, 2015
A recent Eleventh Circuit opinion is interesting on a number of levels. Glock v. Glock, Inc., No. 14-15701 (11th Cir. Aug. 17, 2015). Helga Glock, the wife of the inventor of the Glock handgun, initiated a proceeding in the United States (under 28 U.S.C. §1782) against the Glock entities to discover documents relating to her divorce proceedings back in Austria. She obtained the documents, subject to a protective order that restricted their use in other proceedings unless she obtained court leave.
About a year and a half later, Helga filed a RICO action against Mr. Glock and the Glock entities in the U.S. She sought and obtained, in the Section 1782 proceeding, the magistrate's permission to use the documents she had obtained in that proceeding in the subsequent RICO action.
The district court reversed, but the Eleventh Circuit upheld the magistrate.
First, the court held that Section 1782 did not prohibit the later use of evidence that had been lawfully obtained in a Section 1782 proceeding, including in subsequent U.S. litigation. Second, the court held that the protective order in Helga’s Section 1782 proceeding had required her to obtain court permission before using the documents in another proceeding, but that she had done that.
Monday, August 17, 2015
LAW SCHOOL TEACHING APPLICANTS SOUGHT
THE UNIVERSITY OF IOWA COLLEGE OF LAW anticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to: Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa 52242-1113.
THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.
Saturday, August 15, 2015
Two brothers, Seneca and Tari Adams, “endured vicious beatings by Chicago police officers and prolonged detentions in the Cook County Jail” in 2004. The City of Chicago admitted liability for false arrest, excessive force, race discrimination, and malicious prosecution.
The case was tried to a jury on the question of damages. The jury verdict awarded $2.4 million to Seneca (who was savagely beaten and detained in Cook County Jail for 204 days) and $1 million to Tari (who was also beaten and detained in Cook County Jail for 45 days). The district court “remitted” those amounts to $1.17 million for Seneca and $350,000 for Tari. The district court failed, however, to give them the option of a new trial instead of accepting the remittitur.
The Seventh Circuit (in an opinion by Judge Diane Wood, with Judges Ilana Rovner and Theresa Springmann on the panel) held that simply remitting the damages award without offering plaintiffs the option of a new trial was error. Rather than remand back to the district court to allow plaintiffs that choice, however, the Court proceeded to consider whether the district court had abused its discretion in ordering the remittitur in the first place, and held that it had.
Reviewing the outrageous facts, and comparing similar excessive force cases, the Court held that the jury’s verdict was “well within the universe of excessive force and malicious prosecution verdicts.” The case was remanded so that the jury’s verdict could be reinstated.
(In passing, the Court mentioned Professor Suja Thomas’ article, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L.J. 731 (2003). The Court did not reach the argument that remittitur was unconstitutional, but ventured “that it would be bold indeed for a court of appeals to come to such a conclusion, given what the Supreme Court has said on the topic.”)
The case is Adams v. City of Chicago.
Thursday, August 13, 2015
A. Benjamin Spencer, University of Virginia School of Law, has posted on SSRN his article, "Rationalizing Cost Allocation in Discovery," forthcoming in the Review of Litigation.
A movement is afoot to revise the longstanding presumption that in civil litigation, the producing party bears the cost of production in response to discovery requests. A proposed amendment to Rule 26(c) - slated to take effect in December 2015 - makes explicit the authority of courts to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next - an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated - on constitutional and policy grounds - by pro-business interest groups and advocates before the Advisory Committee on Civil Rules in letters urging them to place this issue on its agenda.
Given indications that the Advisory Committee will indeed take up the issue of cost shifting in the context of civil discovery, now is an apt time to evaluate the producer-pays rule and the claims of those urging its demise. Specifically, to what extent is the producer-pays rule imposing costs on parties in litigation; are there fairness, policy, or constitutional considerations that warrant a revisiting of the rule; and, ultimately, what would a rational approach to discovery cost allocation look like? This article explores the current landscape of discovery expenses in the federal system and the rules governing their allocation, explores the various purported difficulties with a producer-pays approach, and then builds on these discussions to imagine a rational approach to discovery cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.
Tuesday, August 11, 2015
The Center for Judicial Studies of Duke Law School has issued a draft of “Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.” The Center has asked for public comments on the draft by August 21, 2015.
The Center's website states: “The Center for Judicial Studies holds annual bench-bar-academy conferences that identify serious problems in the law, and effect real improvements in laws, rules, and regulations. The conferences bring together prominent bench leaders, government officials, senior-level lawyers, technical experts, and academics to address emerging legal issues and develop consensus positions that will guide government policy-makers and decision-makers by means of best practices or guidelines.”
The Guidelines on Proportionality result from this process. Of course, the Guidelines do not have the force of law. The authors (who are unnamed on the draft) appear to be emulating the method of The Sedona Conference.
Barring action by Congress, the pending amendments to the FRCP will become effective on December 1, 2015.
Financial sponsors of Duke Law School's Center for Judicial Studies in 2014 included Bank of America, ExxonMobil, GE’s Power and Water, Home Depot, King & Spalding, Kirkland & Ellis, Lieff, Cabraser, Heimann & Bernstein, Merck & Co., Monsanto, Pfizer, Inc., Skadden, Arps, Slate, Meagher & Flom, and State Farm Insurance Company.
Comments on the Guidelines should be sent to the Director of the Center, John Rabiej, email@example.com.
Hat tip: Valerie Nannery.
Brooke Coleman, Seattle University School of Law, has posted on SSRN her recent paper, "The Efficiency Norm," forthcoming in Boston College Law Review.
Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that the efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led them to profoundly shift key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis — one that weighs both the benefits and costs of making litigation cheaper — these now-dominant civil litigation presumptions are dangerous and unwarranted because, among other things, they further de-democratize civil litigation. Finally, the Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.