Thursday, April 27, 2017
Alex Platt has posted on SSRN a draft of his article, Unstacking the Deck: Administrative Summary Judgment and Political Control, which will be published in the Yale Journal of Law & Regulation. Here’s the abstract:
The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as a way for agency prosecutors to avoid “futile” hearings, and courts have upheld it based on the same technocratic approach. Yet administrative procedure is not merely an instrument to be expertly calibrated by administrators; it is a mechanism of political control. When Congress assigns enforcement of a given program to a formal adjudication regime, it is exercising its authority to “stack the deck,” giving defendants access to elaborate procedural protections and limiting or channeling the enforcement program. Administrative summary judgment “unstacks the deck” – it unwinds Congress’s procedural controls and allows an agency to recalibrate its enforcement priorities.
At the Securities and Exchange Commission, many administrative proceedings are now resolved on “summary disposition” without any in-person hearing. The recent expansion of summary dispositions has facilitated a broad shift in the agency’s enforcement priorities towards easy-to-prosecute offenses, enabling the agency to show Congress a “record number of enforcement actions” year after year. That figure has (apparently) significant political value, but does not indicate anything about the effectiveness of the SEC’s enforcement program.
Setting enforcement priorities is a critical function for agencies like the SEC that are charged with enforcing a vast and complex array of legal obligations but which have resources to pursue only a relatively small number of possible violations. Securities scholars have long debated the SEC’s enforcement priorities, but have overlooked the role administrative adjudication procedure plays in shaping those priorities – as both a vehicle for Congressional control and administrative rebellion.
Tuesday, April 25, 2017
Monday, April 24, 2017
Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).
Today the U.S. Supreme Court denied certiorari in Salazar-Limon v. City of Houston. Unlike most cert denials, this one prompted written opinions—one dissenting and one concurring. Justice Sotomayor, joined by Justice Ginsburg, authored a dissenting opinion, which begins:
Just after midnight on October 29, 2010, a Houston police officer shot petitioner Ricardo Salazar-Limon in the back. Salazar-Limon claims the officer shot him as he tried to walk away from a confrontation with the officer on an overpass. The officer, by contrast, claims that Salazar-Limon turned toward him and reached for his waistband—as if for a gun—before the officer fired a shot. The question whether the officer used excessive force in shooting Salazar-Limon thus turns in large part on which man is telling the truth. Our legal system entrusts this decision to a jury sitting as finder of fact, not a judge reviewing a paper record.
The courts below thought otherwise. The District Court credited the officer’s version of events and granted summary judgment to respondents—the officer and the city. 97 F. Supp. 3d 898 (SD Tex. 2015). The Fifth Circuit affirmed. 826 F. 3d 272 (2016). But summary judgment is appropriate only where “there is no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The courts below failed to heed that mandate. Three Terms ago, we summarily reversed the Fifth Circuit in a case “reflect[ing] a clear misapprehension of summary judgment standards.” Tolan v. Cotton, 572 U. S. ___, ___ (2014) (per curiam) (slip op., at 10). This case reflects the same fundamental error. I respectfully dissent from the Court’s failure to grant certiorari and reverse.
Justice Alito authored an opinion concurring in the cert denial. An excerpt:
The dissent acknowledges that summary judgment would be proper if the record compelled the conclusion that Salazar-Limon reached for his waist, but the dissent believes that, if the case had gone to trial, a jury could have reasonably inferred that Salazar-Limon did not reach for his waist—even if Salazar-Limon never testified to that fact. The dissent’s conclusion is surely debatable. But in any event, this Court does not typically grant a petition for a writ of certiorari to review a factual question of this sort, see this Court’s Rule 10, and I therefore concur in the denial of review here.
Tuesday, April 18, 2017
Today the Supreme Court issued a unanimous decision in Goodyear Tire & Rubber Co. v. Haeger. Justice Kagan’s opinion begins:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Gorsuch took no part in the decision.
Monday, April 17, 2017
Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:
- Perry v. Merit Systems Protection Board (earlier coverage here)
- Town of Chester v. Laroe Estates (earlier coverage here)
- California Public Employees Retirement System v. ANZ Securities (earlier coverage here)
Thursday, April 13, 2017
Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.
Wednesday, April 12, 2017
Teddy Rave has posted on SSRN his article, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). Here’s the abstract:
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties — the defendant and the lead lawyers for the plaintiffs — at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
Friday, April 7, 2017
After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues.
Monday, April 17:
- Perry v. Merit Systems Protection Board
- Town of Chester v. Laroe Estates
- California Public Employees Retirement System v. ANZ Securities
Tuesday, April 25:
Russell Gold has posted on SSRN his article, “Clientless” Lawyers, 92 Wash. L. Rev. 87 (2017). Here’s the abstract:
Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make — and indeed that legal ethics rules would expressly require clients to make in other contexts — such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.
More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.
Thursday, April 6, 2017
Wednesday, April 5, 2017
Call for Papers: Fifth Annual Workshop for Corporate & Securities Litigation (UCLA Law School, Oct. 20-21, 2017)
Below is the call for papers for the Fifth Annual Workshop for Corporate & Securities Litigation, which will be held at UCLA School of Law on October 20-21, 2017. The deadline for submitting papers or abstracts is May 26.
Tuesday, April 4, 2017
Yesterday the Supreme Court issued its decision in McLean Co. v. EEOC, which begins:
Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute authorizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion.
That first paragraph pretty much says it all, but Justice Sotomayor’s decision also contains a nice summary of the Court’s general approach for identifying the proper standard of review where the relevant statutes do not provide one.
Monday, April 3, 2017
This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Sunday, April 2, 2017
Newly published: Stephen N. Subrin and Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (Winter 2016).
From the Introduction:
Of course, the Federal Rules and their amendments could be the product of a flawed rulemaking process, fail to deliver on the promise of uniformity, and yet still be compelling content that is suitable for adoption by the states. But it turns out that proponents of replication at the state level would have to make a lot of assumptions that turn out not to be true, namely that:
- the number, the substantive mix, and the stakes of federal and state caseloads, respectively, are the same;
- the state courts have the judicial resources that federal procedure pre-supposes;
- the litigants in state courts can afford federal practice;
- the federal procedural amendments, whether by actual amendment or judicial decree, are working well for most cases;
- the drastic diminution of trials and juries in federal courts are salutary for our democracy; and
- state court procedural experimentation should be discouraged.
The Conclusion reveals the misguided nature of these assumptions. This Article will give examples of the mismatch of the federal amendments for the state court caseload.
The Conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.