Wednesday, March 29, 2017
Nora Freeman Engstrom has posted on SSRN her article, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639 (2017). Here’s the abstract:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Thursday, March 23, 2017
Tuesday, March 21, 2017
Several interesting civil procedure cases on the Supreme Court’s March 2017 oral argument calendar (more details in the links)...
Today (3/21): Microsoft v. Baker
Tomorrow (3/22): Water Splash v. Menon
Monday (3/27): TC Heartland v. Kraft Foods
Monday, March 20, 2017
The Akron Law Review is publishing a symposium issue entitled Discovery and the Impact of the December 2015 Amendments to the Federal Rules of Civil Procedure. From the announcement:
The Akron Law Review invites papers regarding the application and impact of the 2015 amendments to the Federal Rules of Civil Procedure, including articles relating to proportionality and the scope of discovery; protective orders regarding cost-shifting in discovery; sanctions for failing to preserve electronically stored information; measures to promote just, speedy, and inexpensive litigation; court application of the amended discovery rules; and the impact of the rule amendment process on rule content. This symposium issue will be published in the Akron Law Review in the 2017-2018 Academic Year.
Details in the full announcement below...
Simona Grossi has posted on SSRN a draft of her article, Procedural Due Process. Here’s the abstract:
Any democratic judicial system must be built on the principle of due process, the fountain from which all procedural rules and doctrines flourish. Understanding the scope and contours of due process is thus crucial to the development of procedural and substantive rules that could achieve the optimal results in a democratic system. Yet the scholarly articles entirely devoted to the topic are scarce to say the least, and most of the relevant monographs have not articulated a theory of due process, but largely provide an historical overview or a survey of the rights that are commonly understood as due process rights.
A theory of due process is missing and this deficiency has, in my opinion, contributed to the lack of a true understanding and, thus, truthful, real investment of the system in the principle.
An article cannot do justice to the complexities and depth of the due process principle. But there are some ideas and insights I thought I might share here, to start defining the theory of procedural due process, and prompt deeper judicial investigation and scholarship on this topic.
Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.
Tuesday, March 14, 2017
A very interesting ruling came down today from District Judge Mark Bennett of the Northern District of Iowa. From the opening paragraph:
This ruling involves one of the least favorite tasks of federal trial and appellate judges—determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections.
Judge Bennett finds that the parties’ objections violated several discovery rules, including Rule 26(b)(5)’s provisions on asserting privileges and Rules 33 and 34’s requirements that objections to interrogatories and requests for production be stated “with specificity.” He concludes (footnotes omitted):
To address the serious problem of “boilerplate” discovery objections, my new Supplemental Trial Management Order advises the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.” The Order also imposes an “affirmative duty to notify the court of alleged discovery abuse” and warns of the possible sanctions for obstructionist discovery conduct.
I recall the words of a former U.S. Attorney General in a different context: “Each time a [person] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, [they] send[ ] forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance.” I pledge to do my part— enough of the warning shots across the bow.
The conduct identified in the Show Cause Order does not warrant sanctions, notwithstanding that the conduct was contrary to the requirements for discovery responses in the Federal Rules of Civil Procedure. NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.
The case is Liguria Foods v. Griffith Laboratories.
Sunday, March 12, 2017
Anna Carpenter has posted on SSRN a draft of her article, Active Judging and Access to Justice, which will be published in the Notre Dame Law Review. Here’s the abstract:
Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.
Michael Morley has posted on SSRN a draft of his article, The Federal Equity Power. Here’s the abstract:
Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.
Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power.
There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.
Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.
Friday, March 10, 2017
We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.
- H.R. 725 (the Innocent Party Protection Act) passed by a vote of 224–194.
- H.R. 985 (the Fairness in Class Action Litigation Act) passed by a vote of 220-201-1.
Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.
Thursday, March 9, 2017
Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami. Suzette reviews a recent article by Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).
Wednesday, March 8, 2017
Tuesday, March 7, 2017
Jason Kilborn provides the following guest post on Amalia Kessler’s recent book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale Univ. Press 2017):
* * *
Given the title, I thought the book was about why US lawyers (or our legal culture generally) are so bellicose. Instead, it's about why we gravitated toward lawyer-driven adversarial (accusatorial) procedure, as opposed to European style, judge-driven inquisitorial procedure, and how the result of our choice is now a deeply ingrained part of US legal culture. It's about the fiercely independent US rejection of the canon-civil law approach of chancery/equity (secret, written, controlled by bureaucrats, headed by one elitist chancellor) in favor of the supposedly more democratic law courts (open, oral, lawyer-driven, headed by many judges and involving juries in fact-finding). It thus nicely supplements other recent books, like Suja Thomas's on the key role of our (all but moribund) trial-and-jury process as a key aspect of our democracy (http://sujathomas.com/missing-american-jury/).
Monday, March 6, 2017
In my opinion, the video is suitable for law students and also the general public. I think there is a great need for clear, brief videos on various aspects of the U.S. government. There appears to be a dearth of knowledge on that score. For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.
Now on the Courts Law section of JOTWELL is Alexandra Lahav’s essay, (Almost) Everything You Wanted to Know About Class Actions. Alexandra reviews John Coffee’s recent book, Entrepreneurial Litigation: Its Rise, Fall, and Future.
Thursday, March 2, 2017
The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).
Hat tip: Adam Zimmerman
Wednesday, March 1, 2017
In addition to the six bills already reported here and here, House Republicans have also introduced H.R. 1118, the so-called “Innocent Sellers Fairness Act,” which would federalize the law of product liability by limiting liability for the sellers of a product. The bill is sponsored by Rep. Blake Farenthold (R-TX 27), Rep. John Duncan (R-TN 2), and Rep. Lamar Smith (R-TX 21).
The operative provisions of the bill provide:
(a) In general
No seller of any product shall be liable for personal injury, monetary loss, or damage to property arising out of an accident or transaction involving such product, unless the claimant proves one or more of the following activities by the seller:
(1) The seller was the manufacturer of the product.
(2) The seller participated in the design of the product.
(3) The seller participated in the installation of the product.
(4) The seller altered, modified, or expressly warranted the product in a manner not authorized by the manufacturer.
(5) The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant.
(6) The seller had actual knowledge of the defect in the product at the time the seller supplied the product.
(7) The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer.
(8) The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
(b) Liability of seller in cases of negligence
If the claimant proves one or more of the activities described in subsection (a) and such activity was negligent, the seller’s liability is limited to the personal injury, monetary loss, or damage to property, directly caused by such activity.
These provisions resemble Section 8 of the American Legislative Exchange Council's so-called “model policy” on product liability for state legislators to copy.
Unlike the other six bills, this one has not passed the House Judiciary Committee.