Civil Procedure & Federal Courts Blog

Dixon & Jackson on Appointing Foreign Judges to National Constitutional Courts

Rosalind Dixon and Vicki Jackson have published Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283 (2019). Here’s the abstract:

Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model’s attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts—for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions’ appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”—through some meaningful degree of domestic support for the role of such judges and through the foreign judges’ own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”

 

 

 

 

 

Sixth Circuit Judge Larsen on State Courts in a Federal System

The Case Western Reserve Law Review has published Judge Joan Larsen’s Sumner Canary Memorial Lecture, State Courts in a Federal System, 69 Case W. Res. L. Rev. 525 (2019).

 

 

Nelson on Standing, Remedial Rights, and Administrative Law

Caleb Nelson has published "Standing" and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703 (2019). Here’s the abstract:

Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.

Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.

 

 

Burbank & Farhang on the Effects of Judicial Partisanship and Identity on Class Certification Decisions

Steve Burbank & Sean Farhang have posted on SSRN a draft of their article, Politics, Identity, and Class Certification on the U.S. Courts of Appeals. Here’s the abstract:

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with pro-certification outcomes. Contrary to conventional wisdom in the scholarship on diversity on the bench, such diversity may be consequential to lawmaking beyond policy areas conventionally thought to be of particular concern to women and racial minorities.

Class action doctrine is a form of trans-substantive procedural law that traverses many policy areas. The effects of gender and racial diversity on the bench, through making more precertification law, radiate widely across the legal landscape, influencing implementation of consumer, securities, labor and employment, antitrust, prisoner’s rights, public benefits, and many other areas of law. The results highlight how the consequences of diversity extend beyond conceptions of “women’s issues” or “minority issues.” The results also suggest the importance of exploring the effects of diversity on trans-substantive procedural law more generally.

Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of males in the majority (mirroring what we find with respect to African American judges in class certification decisions). These results allowed for optimism that the panel structure — which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority — actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism.

Our gender results are quite different and more normatively troubling. We observe that women have more pro-certification preferences based on outcomes when they are in the majority. However, panels with one female are not more likely to yield pro-certification outcomes. Female majority panels occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships.

Our suggestions regarding mechanisms that may help to explain these results are speculative and tentative. Recent scholarship on the gender gap in political discussions and decision-making illuminates some disquieting possibilities. If the dynamics identified by this research are at play, one possibility is that a female judge in the minority who vigorously advocates for a preferred outcome is less successful because, as a panel minority in a substantive domain that, unlike anti-discrimination law, does not elicit gender-based deference, she is regarded as less authoritative and influential. Another is that the reinforcement of a female majority increases her propensity to advocate preferences that differ systematically from those of her male colleagues in areas without obvious gender salience.

 

 

 

 

 

Schmitz on E-Courts and Access to Remedies

Amy Schmitz has published Expanding Access to Remedies through E-Court Initiatives, 67 Buff. L. Rev. 89 (2019). Here’s the abstract:

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public courts have continued to insist on traditional face-to-face procedures. Nonetheless, e-courts and public ODR pilots are developing throughout the world in particular contexts such as small claims and property tax disputes, and are demonstrating how technology can be used to further efficiency and expand access to the courts. Accordingly, this Article explores these e-court initiatives with a critical eye for ensuring fairness, due process, and transparency, as well as efficiency, in public dispute resolution.

 

 

 

 

Parrillo on Negotiations over Federal Agency Compliance with Court Orders

Nicholas Parrillo has published Negotiating the Federal Government's Compliance with Court Orders: An Initial Exploration, 97 N.C. L. Rev. 899 (2019). Here’s the abstract:

Judicial review of federal agencies rests on the premise that if a court gives an order to an agency, the agency will obey. Yet the federal government’s compliance with court orders is far from automatic, especially with orders telling an agency to act affirmatively, which may strain limited agency resources, interfere with the agency’s other legally required tasks, or force the agency to act on deficient information. An agency may invoke these difficulties to convince a judge that it should be cut more slack—that is, given more latitude (especially more time) to comply. Judges often find the agency’s difficulties to be quite real and hold back from demanding strict and rapid compliance. Thus, whether an agency must actually do what a court has ordered, and on what terms, entails a delicate negotiation between agency, judge, and plaintiff. These compliance negotiations, despite their great practical importance, are little analyzed or understood in the academic literature, for it is difficult to learn about them through traditional sources like appellate case law. This Essay, drawing upon a large cache of dockets from district court cases in which compliance troubles arose, provides an initial exploration of this unexplored subject. This Essay finds that the central problem in these cases is the judge’s access (or lack of access) to information about why the agency is falling short and whether it could do more. On this theme, this Essay discusses (1) the kind of information that an agency can provide about its own internal management so as to convince the judge that it is trying hard enough to comply; (2) the imperfect and even crude methods that judges use to discern whether an agency is trying hard enough; and (3) the ways in which judges can employ information-gathering techniques, such as requiring testimony by high agency officials, as quasi sanctions to force the agency to pay more attention to what the court has ordered.

 

 

 

Li on Climate Change Litigation in China

Jiangfeng Li has published Climate Change Litigation: A Promising Pathway to Climate Justice in China?, 37 Va. Env. L.J. 132 (2019). Here’s the conclusion:

Climate change litigation has yet to take root in China. However, as this article argues, China can develop climate change litigation to effectively address the serious problem of climate change. Tackling climate change requires a multidimensional governance regime that includes both top-down regulation from government agencies and bottom-up regulation from public participation in judicial or non-judicial activity.

Litigation can be a driving force for an effective response to climate change through the process of the courts applying and interpreting statutes, prods and pleas, and the flow-on regulatory effects of the litigation process. While exploring the regulatory role climate change litigation can play, this article has offered a theoretical prognosis of potential pathways for the emergence of climate change litigation in China. It also discussed the economic, social, historical, and cultural factors currently impeding the development of climate change litigation in China. However, considering China’s domestic concerns about the risks and impacts of climate change and China’s evolving legal framework and social sentiments regarding climate change and environmental litigation, climate change litigation has an opportunity to develop in China.

In light of these factors, this article proposes that China should enact a pro-litigation climate change statute, extend government enforcement litigation to climate change, and enhance public participation and education with respect to climate change regulation. Though there is still considerable uncertainty regarding the future prospects of climate change litigation in China, this article holds an optimistic view that China will gradually become receptive to climate change litigation.

 

 

Ninth Circuit partially stays nationwide injunction against Trump administration's asylum restrictions

Today the Ninth Circuit issued a 2-1 decision in East Bay Sanctuary Covenant v. Barr. The court partially grants and partially denies the government’s motion to stay a nationwide injunction issued by the district court against the Trump administration’s recent restrictions on asylum eligibility.

Because the government had not made a “strong showing” that it was “likely to succeed on the merits,” the court denies the motion for a stay “insofar as the injunction applies within the Ninth Circuit.”

However, the court grants the motion for a stay “insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands.” On that point, the court states: “While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”

The judges on the motions panel are Judge Wallace Tashima, Judge Milan Smith, and Judge Mark Bennett. Judge Tashima dissents in part—he would have denied the motion to stay in its entirety.

Download East Bay Sanctuary Covenant v Barr (8-16-2019)

 

 

Durling on Article III and the D.C. Court System

James Durling has published The District of Columbia and Article III, 107 Geo. L.J. 1205 (2019). Here’s the abstract:

Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the District’s non-Article III court system. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III.

This Article challenges that consensus. It shows that, as a historical matter, Article III’s judicial protections were long believed to apply to the District. And it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the capital. In short, this Article demonstrates that the current D.C. court system likely violates Article III.

This conclusion should be significant in its own right, since the right to an Article III judge has long been viewed as an essential constitutional safeguard. Indeed, the modern history of the D.C. court system reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the capital. But the historical research presented in this Article also has broader implications outside the seat of government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.

 

 

 

Call for Nominations: Pound Institute Civil Justice Scholarship Award

The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:

The Pound Institute is pleased to offer again this year our recently-established award designed to recognize current research and writing on civil justice issues, and to encourage such research in the future.  The Civil Justice Scholarship Award will be presented every year (as possible) at Pound’s winter Fellows receptions.  The nomination deadline is Monday, September 16, 2019; the award will be presented on Sunday, February 9, 2020 in New Orleans, Louisiana.

Here are links to the announcement flyer, award criteria, and nomination form.

 

 

 

Fallon on Bidding Farewell to Constitutional Torts

Richard Fallon has published Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933 (2019). Here’s the abstract:

The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among leading scholarly critics—to see interconnected problems in a sufficiently broad frame.

This Article refocuses analysis along four interconnected dimensions. First, it examines relevant constitutional history, centrally including that of the maxim “for every right, a remedy.” That maxim has exerted significant generative force, but it has also been widely misunderstood. Second, the Article reviews and critiques recent Supreme Court decisions involving constitutional tort claims, many of which reflect fallacious assumptions. Third, the Article addresses the question, What role would damages and injunctive remedies for constitutional violations play in a justly and prudently designed legal system unfettered by historical accidents and path dependence? Commentators almost invariably assume that any gap between constitutional rights and individually effective, make-whole remedies is inherently regrettable. This Article refutes that premise. Although an ideal regime would substitute entity liability for officer liability and afford broad opportunities for victims of constitutional violations to vindicate their rights, it would not always authorize recovery of money damages.

Finally, the Article considers reforms that the Supreme Court could effectuate in the absence of action by Congress. Among other proposals, it calls for expansion of municipal liability in suits under 42 U.S.C. § 1983 and for reinvigoration of Bivens actions, but it defends the main outlines of qualified immunity doctrine against a spate of recent critics.

 

 

Alabama Attorney General Concedes that 2019 Abortion Law Should Be Partially Enjoined

This May, a lawsuit was filed challenging Alabama’s 2019 abortion law (House Bill 314). The case, Robinson v. Marshall, is pending before Judge Myron Thompson in the U.S. District Court for the Middle District of Alabama. (No. 2:19-cv-00365).

Last week, the Alabama Attorney General filed a response to the plaintiffs’ motion for a preliminary injunction. He concedes that the law must be—at least partially—enjoined. The Attorney General recognizes that the Alabama statute is unconstitutional under the Supreme Court’s case law, but he states that he will ask the Supreme Court to overrule those decisions. He writes: "For now, though, this Court is bound by Roe and Casey, and these cases require that Plaintiffs’ motion for a preliminary injunction be granted with respect to the Act’s ban on pre-viability abortions."

This would seem to pave the way for the entry of a preliminary injunction against the Alabama statute, from which the Alabama Attorney General would appeal to the Eleventh Circuit and ultimately the Supreme Court.

Here is the Alabama Attorney General’s filing:

• Download Robinson - Defendant's Response to Motion for Preliminary Injunction

Here is the plaintiffs’ complaint and memorandum in support of their motion for a preliminary injunction:

• Download Robinson - Complaint
• Download Robinson - Memo in Support of Motion for Preliminary Injunction

Here is coverage from Abbey Crain at AL.com. and Kim Chandler at the AP.  

 

 

 

 

Rosenbaum on Legislative Procedural Reform

Briana Rosenbaum has published The Legislative Role in Procedural Rulemaking Through Incremental Reform, 97 Neb. L. Rev. 762 (2019). Here’s the abstract:

Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress’s policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature proposed scaling-back access to remedies in courts in almost every type of case. These bills—while seemingly “procedural”—have the potential to shape individual rights and remedies, incentives to sue, and the costs of litigation.

The Article uses an institutional incremental approach to viewing legislative procedural law change. It examines both historical and current legislative efforts at litigation and procedural reform, identifying “major” and incremental policy proposals. Viewing legislative litigation reform in this light reveals that the legislature has taken an active role in the development of procedural law and retrenchment of court access, not just through major reform legislation, but through small targeted actions that can have great effects over time. This Article then provides observations on the character and efficacy of legislative procedural reform. Unlike procedure generated from the court-centered REA process, incremental legislative procedure is often targeted to, and motivated by, altering remedies in a particular substantive area, nontransparent, and unmoored from adjudication and practice-based normative values. The history suggests that procedural scholars should rethink the legislative role in shaping the adjudicatory process.

 

 

 

 

Bechtold, Frankenreiter & Klerman on Forum Selling by Foreign Courts

Stefan Bechtold, Jens Frankenreiter & Daniel Klerman have published Forum Selling Abroad, 92 S. Cal. L. Rev. 487 (2019). Here’s the abstract:

Judges decide cases. Do they also try to influence which cases they decide? Plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This Article shows that forum selling occurs outside the United States as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the United States, German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the United States is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges, and court officials, this Article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts of other countries.

 

 

 

Interesting Ninth Circuit Decision on Article III Standing and Class Certification

Today the U.S. Court of Appeals for the Ninth Circuit issued a unanimous decision in Patel v. Facebook. The panel opinion by Judge Ikuta begins:

Plaintiffs’ complaint alleges that Facebook subjected them to facial-recognition technology without complying with an Illinois statute intended to safeguard their privacy. Because a violation of the Illinois statute injures an individual’s concrete right to privacy, we reject Facebook’s claim that the plaintiffs have failed to allege a concrete injury-in-fact for purposes of Article III standing. Additionally, we conclude that the district court did not abuse its discretion in certifying the class.

Download Patel v Facebook (9th Cir)

 

Lammon on Qualified Immunity Appeals

Bryan Lammon has posted on SSRN a draft of his article, Blatant Contradictions in Qualified-Immunity Appeals. Here’s the abstract:

Courts hearing an interlocutory qualified-immunity appeal normally have jurisdiction to address only whether the facts assumed by the district court make out a clear constitutional violation. They lack jurisdiction to look behind the district court’s assumed facts to see whether the evidence supports them. The Supreme Court created this limit on the scope of interlocutory review to reduce the burdens of qualified-immunity appeals. But the blatant-contradiction exception to this limit on the scope of review (which stems from the infamous Scott v. Harris) allows appellate courts to review the genuineness of a fact dispute when something in the record blatantly contradicts the district court’s assumed facts.

To assess the blatant-contradiction exception, I created an original dataset of cases invoking the exception in the 12 years after Scott. The data show that the exception is both profoundly unpragmatic and unnecessary. It is an unwieldy and inefficient method for determining appellate jurisdiction. And all of the time spent addressing supposedly blatant contradictions produces few (if any) benefits. Defendants frequently raise the exception and courts regularly reject it — courts unanimously found a blatant contradiction in only 15% of the cases that squarely addressed the matter. The blatant-contradiction exception nevertheless invites attempted appeals, fights over appellate jurisdiction, wasted merits briefing, and delayed district court proceedings.

Scott’s blatant-contradiction exception needs to go. A better practice is one modeled on a supervisory rule that the Third Circuit created (in an opinion written by then-Judge Alito): require district courts to state the facts they assume when denying qualified immunity at the summary-judgment stage, and limit qualified-immunity appeals to addressing only whether those facts make out a clear violation of federal law. The Supreme Court could adopt this rule in an appropriate case. Or the Rules Committee could get involved; the Committee can craft rules on interlocutory appeals. And if the Committee does decide to address qualified-immunity appeals, there are several other aspects of those appeals that are ripe for reform. This article is the first in a series tackling these issues, all written with an eye towards ultimately reforming the law of qualified-immunity appeals.

 

 

Tillman and Blackman on the Plaintiff's Cause of Action in the Wall Litigation

Seth Barrett Tillman (Maynooth University) and Josh Blackman (South Texas College of Law) have posted What is the Plaintiff's Cause of Action in the Wall Litigation to the Volokh Conspiracy blog hosted at reason.com.

Arizona Invokes SCOTUS Original Jurisdiction in Suit Against Sackler Family Over Opioids

This week Arizona filed a bill of complaint (and a motion for leave to file that bill of complaint) in the Supreme Court.

Download Arizona-Motion-for-Leave-to-File-Bill-of-Complaint

The bill begins:

1.  Defendants Richard Sackler, Theresa Sackler, Kathe Sackler, Jonathan Sackler, Mortimer D.A. Sackler, Beverly Sackler, David Sackler, and Ilene Sackler Lefcourt (“the Sacklers”) for decades owned and controlled The Purdue Frederick Company, Inc., Purdue Pharma Inc. and Purdue Pharma, L.P. (collectively, “Purdue”). The Sacklers and Purdue have made billions of dollars off the promotion and sale of opioids, fueling a crisis with devastating effects in Arizona and the nation. The Sacklers and Purdue reaped profits through misleading marketing tactics that were barred by a 2007 consent judgment that Purdue entered into with the State of Arizona. The State is seeking civil penalties and other relief for violation of that consent judgment in a pending case before Pima County Superior Court. See Arizona ex rel. Brnovich v. Purdue Pharma, L.P., et al., No. C20072471 (Ariz. Super. Ct.).

2.  The State brings this action because it has evidence that the Sacklers, Purdue, and the other Defendants were parties in recent years to massive cash transfers—totaling billions of dollars— at a time when Purdue faced enormous exposure for its role in fueling the opioids crisis. These transfers threaten the ability of Purdue to satisfy any relief the State may obtain in its pending proceeding against Purdue. The State therefore brings this action to hold the Defendants accountable for their attempts to loot Purdue, and to ensure that the people of Arizona can obtain adequate relief for the devastation that the Sacklers and Purdue have wrought in this state.

The bill asserts jurisdiction under 28 U.S.C. § 1251(b)(3), which provides: “The Supreme Court shall have original but not exclusive jurisdiction of . . . [a]ll actions or proceedings by a State against the citizens of another State or against aliens.”

Here’s a NYT story from Adam Liptak: Arizona Files Novel Lawsuit in Supreme Court Over Opioid Crisis.

 

 

 

Blocking the Courthouse Door: Federal Civil Procedure Obstacles to Justice

The University of the Pacific Law Review has published a symposium issue entitled “Blocking the Courthouse Door: Federal Civil Procedure Obstacles to Justice,” which includes the following contributions:

Michael Vitiello, Due Process and the Myth of Sovereignty 

Donald Doernberg, The Supreme Court’s Cloaking Device: "[C]ongressional judgment about the sound division of labor between state and federal courts" 

Richard Freer, Justice Black Was Right About International Shoe, But for the Wrong Reason 

Thomas Main, Over Passive-Aggressive Model of Civil Adjudication 

Linda Mullenix, Is the Arc of Procedure Bending Towards Injustice?