Thursday, May 31, 2018
Bob Klonoff has posted on SSRN a draft of his article, Application of the New “Proportionality” Discovery Rule in Class Actions: Much Ado About Nothing, which is forthcoming the Vanderbilt Law Review. Here’s the abstract:
The “proportionality” amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs’ bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, the author has reviewed every published judicial opinion (approximately 135) between December 1, 2015, and April 30, 2018, that applies the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. Nonetheless, the results are striking. At bottom, the proportionality amendment has had little impact, at least in the class action context. Courts have generally indicated that the new rule does not fundamentally change the governing principles. In ruling on discovery disputes in class actions, courts continue to conduct nuanced, highly fact-specific analyses, with results that differ little from pre-amendment case law. The courts are especially liberal in allowing discovery that is relevant to class certification. In short, the class action discovery decisions thus far do not support the predictions that the proportionality rule would lead to a sea change.
Wednesday, May 30, 2018
Tara Grove has published The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018). Here’s the abstract:
The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long-standing norms, federal judges should take none of their current protections for granted.
Tuesday, May 29, 2018
Arthur Miller has published What Are Courts For? Have We Forsaken the Procedural Gold Standard?, 78 La. L. Rev. 739 (2018). The article expands on his Alvin and Janice Rubin Lecture at LSU.
Monday, May 28, 2018
Last week the Supreme Court issued a 5-4 decision in Epic Systems Corp. v. Lewis. Justice Gorsuch wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. It begins:
Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?
As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum.
Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. Here’s an excerpt from her introductory section:
Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”
In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), 29 U. S. C. §101 et seq., Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).
Monday, May 21, 2018
SCOTUS Grants Cert in Jam v. International Finance Corporation: Immunity for International Organizations
Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)— confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.
Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).
Friday, May 18, 2018
Brooke Coleman has posted on SSRN a draft of her essay, #SoWhiteMale - Federal Civil Rulemaking, which is forthcoming in the Northwestern University Law Review. Here’s the abstract:
116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are not apolitical actors. This essay argues that the homogeneous composition of the rulemaking committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the rulemaking committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this essay argues that the rulemaking committee members, the Judiciary, and the Bar should demand that the civil rulemaking committee cease being #SoWhiteMale.
Thursday, May 17, 2018
The Pound Civil Justice Institute has announced a Civil Justice Scholarship Award:
The Pound Institute will make a Civil Justice Scholarship Award, bi-annually as possible, to recognize current scholarly legal research and writing focused on topics in civil justice, including access to justice and the benefits of the U.S. civil justice system, as well as the right to trial by jury in civil cases. Nomination deadline is September 17, 2018. Award to be presented at the Pound Institute's Fellows reception, February 3, 2019 in Miami Beach.
You can find the criteria and nomination form here.
Monday, May 14, 2018
Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.”
The Court rejected both theories and found that the case was moot. In conclusion, however, Chief Justice Roberts observed:
None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.
Tuesday, May 8, 2018
Ninth Circuit Decision in United States v. County of Maricopa: Joe Arpaio, Policymaker Liability & Issue Preclusion
Yesterday the Ninth Circuit issued a unanimous decision in United States v. County of Maricopa. The opinion begins:
The United States brought this action to halt racially discriminatory policing policies instituted by Joseph Arpaio, the former Sheriff of Maricopa County, Arizona. Under Arpaio’s leadership, the Maricopa County Sheriff’s Office (MCSO) routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting violations of federal immigration law. Based on that and other unlawful conduct, the United States sued Arpaio, MCSO, and the County of Maricopa under two statutes: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141). The district court granted summary judgment in favor of the United States on the claims relating to the unlawful traffic stops; the parties settled the remaining claims. Maricopa County is the lone appellant here. Its main contention is that it cannot be held liable for the unlawful traffic-stop policies implemented by Arpaio.
The panel’s decision affirms the district court’s ruling. It concludes that: (1) Arpaio was a final policymaker for the county; (2) policymaker liability applies under Title VI and § 12601; and (3) the county is bound as a matter of issue preclusion by the findings in the earlier litigation against Arpaio.
Monday, May 7, 2018
Friday, May 4, 2018
From the announcement:
In this annual lecture series, up to three scholars from Yale Law School and other leading US-Law Schools are invited to spend some time in Berlin, at Humboldt Law School. During their stay, and as part of a variety of different events, the three visitors will interact with colleagues as well as doctoral candidates and students. The highlight of these series of events is the Yale-Humboldt Consumer Law Lecture, which is open to all interested lawyers. The presentations will be followed by a discussion.
The Yale-Humboldt Consumer Law Lecture aims at encouraging the exchange between American and European lawyers in the field of Consumer Law, understood as an interdisciplinary field that affects many branches of law. Special emphasis will therefore be put on aspects and questions which have as yet received little or no attention in the European discourse.
For this year’s event, we are privileged to welcome Professor Robert C. Post (Yale Law School), Professor Judith Resnik (Yale Law School) and Professor Reva Siegel (Yale Law School) as speakers.
Register here by June 1.
Tuesday, May 1, 2018
I have just posted a short article Solving the Nonresident Alien Due Process Paradox in Personal Jurisdiction to SSRN. It is forthcoming in the Michigan Law Review's online supplement as a response to Bill Dodge and Scott Dodson's forthcoming Michigan piece Personal Jurisdiction and Aliens.
Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed—if not unfairly driven—the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien’s ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the second.
In this short response to Personal Jurisdiction and Aliens by Professors Dodge and Dodson, I consider the implications of the Supreme Court’s jurisprudence concerning the due process rights of aliens, particularly in United States v. Verdugo-Urquidez and its progeny. The modern era of discussion surrounding aliens’ due process rights began with Verdugo-Urquidez. Dodge and Dodson view this line of authority as a potential problem for the concept that aliens can assert the due process right of personal jurisdiction. In their analysis, they correctly conclude that Verdugo-Urquidez does not stand for the proposition that aliens are barred from asserting due process claims (including personal jurisdiction claims) in federal and state courts. Dodge and Dodson, however, have missed the opportunity to explore how Verdugo-Urquidez establishes a direct link to their argument for a test of nationwide contacts.
Verdugo-Urquidez and its progeny show that the Supreme Court has developed a doctrine in which the exploration of an alien’s ability to assert constitutional rights is not a binary question, but a complicated inquiry which rests on the relationship of the alien (and often the conduct at issue in the assertion of the constitutional right) to the United States as a whole. This line of cases, with its emphasis on the relationship of the alien to the United States, bears a remarkable resemblance to the analysis of relationships between litigant, forum, and conduct that are involved in personal jurisdiction analysis. They strengthen the argument that the United States (as opposed to individual states) is, in fact, the relevant sovereign for analyzing the personal jurisdiction of nonresident aliens.
There are two benefits to examining the relationship of Verdugo-Urquidez to personal jurisdiction doctrine. The first is to demonstrate that Verdugo-Urquidez is far from a problem—it actually figures into an “alienage jurisdiction” solution. The second is realizing that Verdugo-Urquidez fits within alienage jurisdiction allows us to directly address what was considered a doctrinal conundrum in personal jurisdiction: How is it that aliens have greater constitutional rights in personal jurisdiction as their connection to the United States lessens, while aliens in all other contexts seem to require a closer relationship to the United States? By viewing Verdugo-Urquidez as a necessary part of the argument for alien personal jurisdiction, focusing on the United States as the relevant sovereign, and clarifying that nationwide contacts are the correct solution, this supposed doctrinal incongruity becomes a harmonious (and even necessary) reconciliation of the two doctrines.