Wednesday, July 1, 2020
Today on the Courts Law section of JOTWELL is Seth Endo’s essay, Charting the Interactions of Legal Tech and Civil Procedure. Seth reviews David Engstrom and Jonah Gelbach’s article, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. (forthcoming 2020).
Monday, June 29, 2020
Today the Supreme Court issued its decision in June Medical Services L.L.C. v. Russo. By a 5-4 vote, the Court strikes down Louisiana’s admitting-privileges law (Act 620) as imposing an undue burden on women seeking an abortion. The five-Justice majority comes from Justice Breyer’s opinion, which is joined by Justices Ginsburg, Sotomayor, and Kagan, and Chief Justice Roberts’ concurring opinion. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent—each of them authoring dissenting opinions.
In addition to the substantive constitutional issues regarding access to abortion, the case implicates some interesting civil procedure and federal courts issues: standing, standards of review, and stare decisis.
The standing issue is whether the plaintiffs, who were abortion providers and clinics, could challenge the Louisiana law as infringing their patients’ rights. Justice Breyer’s opinion concludes that Louisiana waived its standing argument:
The State’s argument rests on the rule that a party cannot ordinarily “‘rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This rule is “prudential.” 543 U. S., at 128–129. It does not involve the Constitution’s “case-or-controversy requirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190, 193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976). And so, we have explained, it can be forfeited or waived. See Craig, 429 U. S., at 193–194.
Louisiana had argued in the lower courts that “there was ‘no question that the physicians had standing to contest’ Act 620.” This was an “unmistakable concession,” according to Justice Breyer. He adds that “even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis.” He explains:
What we said some 45 years ago in Craig applies equally today: “[A] decision by us to forgo consideration of the constitutional merits”—after “the parties have sought or at least have never resisted an authoritative constitutional determination” in the courts below—“in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.” 429 U. S., at 193–194 (quotation altered).
Justice Breyer also questions whether Louisiana’s standing argument would be persuasive in any event, noting that “[w]e have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”
Chief Justice Roberts concurs in Justice Breyer’s standing analysis: “For the reasons the plurality explains, ante, at 11–16, I agree that the abortion providers in this case have standing to assert the constitutional rights of their patients.”
2. Standard of Appellate Review
Another procedural issue is the standard of appellate review regarding the district court’s findings. Justice Breyer’s opinion notes:
We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule Civ. Proc. 52(a)(6). In “‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969)).
And the opinion concludes:
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution.
Chief Justice Roberts also emphasizes the deferential standard of review:
The question is not whether we would reach the same findings from the same record. These District Court findings “entail[ed] primarily . . . factual work” and therefore are “review[ed] only for clear error.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___, ___ (2018) (slip op., at 6, 9). Clear error review follows from a candid appraisal of the comparative advantages of trial courts and appellate courts.
3. Stare Decisis
And of course, the case presents important questions of stare decisis, especially in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down Texas’s admitting privileges requirement. Stare decisis is key to Chief Justice Roberts’ tie-breaking fifth vote in favor of the plaintiffs: “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Roberts concludes:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
Friday, June 19, 2020
Yesterday the Supreme Court issued its decision in Department of Homeland Security v. Regents of University of California. As folks are surely aware by now, the Court voted 5-4 to vacate the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as “arbitrary and capricious” under the Administrative Procedure Act (APA).
The case raised some interesting issues relating to civil procedure and federal courts that are worth flagging. The first is pleading. On the APA issue, Chief Justice Roberts authors the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. But the plaintiffs had also argued that the rescission of DACA violated the equal protection component of the Fifth Amendment because the rescission was motivated by discriminatory animus. In Part IV—which Justice Sotomayor did not join—Chief Justice Roberts finds that the plaintiffs’ allegations of animus were “insufficient.” He writes:
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim.
Justice Sotomayor does not join this part of Chief Justice Roberts’ opinion, and she writes a partial dissent on the equal protection issues. From her opinion:
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 274 (EDNY 2018).
I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus.
The Supreme Court’s handling of the equal protection claims raises another recurring chestnut for federal courts enthusiasts: the Marks rule and nonmajority opinions. The dissenting justices on the APA issue—Justices Thomas, Alito, Gorsuch, and Kavanaugh—write that they “concur in the judgment insofar as the Court rejects [the] equal protection claim.” It’s not clear, however, whether and how those votes can be added to the four-justice plurality on the plaintiffs’ pleading of their equal protection claims to generate a binding “majority” opinion on that issue.
Finally, it’s worth noting that the Court avoided the recurring-yet-still-unaddressed question of nationwide injunctions (see, e.g., here). Footnote 7 of Chief Justice Roberts’ opinion explains that, because the Supreme Court affirmed the D.C. federal court’s order vacating the Trump administration’s rescission of DACA, it was “unnecessary to examine the propriety of the nationwide scope of the injunctions” that had been issued by other federal courts.
Friday, June 12, 2020
Susan Provenzano has posted on SSRN a draft of her article, Can Speech Act Theory Save Notice Pleading?, which is forthcoming in the Indiana Law Journal. Here’s the abstract:
Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew those lines. It treats as legal conclusions an entire subset of factual allegations and does so whenever, in the court’s view, those facts are presented too generally or too rhetorically. To date, the contours of “conclusory” have not been pinned down by legal-theoretic approaches, while lower court reactions range from conflicting to confused to avoidant. It is clearer than ever that Iqbal left an analytical void in the wake of its novel pleading inquiry—a void that must be filled in a stable way while recognizing the FRCP’s normative commitments.
That way is through speech act theory. Speech act theory is a philosophy of language that employs a descriptive methodology for understanding what speakers mean with their words. A speech act- theoretic approach targets Iqbal’s central flaws—failing to treat pleading as an act of communication, and ignoring how the pleader intends her allegations to function in the pleading conversation. Indeed, Iqbal makes the judge’s omniscient view of meaning the decisive factor. Furthermore, Iqbal conflates two types of speech acts whose difference was vital pre-Iqbal: allegations meant to report, which merit the truth assumption, and allegations meant to accuse, which do not. Speech act theory shores up pre-Iqbal instability and offers a consistent analytical approach for granting allegations the assumption of truth based on communicative meaning. Using speech act theory to set the parameters of “conclusory” also opens the doors of discovery to complaints that do their job as the FRCP intended: providing functional fair notice of the nature of the plaintiff’s claims and the grounds on which they rest.
Thursday, June 4, 2020
In addition to Monday’s decision on Article III standing in Thole v. U.S. Bank, here are some other notable developments at One First Street this week...
The Court issued a 7-2 decision in Banister v. Davis. Justice Kagan’s majority opinion holds that a habeas petitioner’s FRCP 59(e) motion to alter or amend the habeas court’s judgment is not a second or successive habeas petition for purposes of 28 U.S.C. § 2244. Justice Alito writes a dissent, joined by Justice Thomas. Check out Steve Vladeck’s analysis at SCOTUSblog.
The Court issued a unanimous decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC. Justice Thomas’s opinion holds that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Convention) does not conflict with domestic equitable estoppel doctrines permitting the enforcement of arbitration agreements by nonsignatories. Justice Sotomayor authors a concurring opinion. Ronald Mann analyzes the decision at SCOTUSblog.
The Court issued a 7-2 decision in Nasrallah v. Barr. Justice Kavanaugh’s majority opinion interprets 8 U.S.C. § 1252(a)(2) to permit the federal courts of appeals to review a factual challenge to an order denying relief under the Convention Against Torture, even for individuals who committed a crime specified in § 1252(a)(2)(C). Justice Thomas writes a dissent, joined by Justice Alito. Check out Jennifer Chacon’s analysis at SCOTUSblog and Bryan Lammon’s post at Final Decisions.
Finally, Monday’s order list included denials of certiorari in two cases—Comcast v. Tillage and AT&T Mobility v. McArdle—involving FAA preemption of state law on the enforceability of contractual provisions that waive a party’s right to seek public injunctive relief. Alison Frankel has coverage at Reuters (On the Case).
Thursday, May 28, 2020
Bryan Lammon has posted on SSRN a draft of his article, Interlocutory Class-Certification Appeals Under Rule 23(f). Here’s the abstract:
This Article presents my empirical study of petitions to appeal from class-certification decisions under Federal Rule of Civil Procedure 23(f). I created a dataset of Rule 23(f) petitions filed from 2013 through 2017. The data revealed three insights on Rule 23(f) and class actions generally.
First are the basic findings. Litigants filed over 850 petitions to appeal from 2013 through 2017. The courts of appeals granted about 25% of them. And when appellate courts granted permission to appeal, they reversed the district court's class-certification decision about 54% of the time.
Second, I used the data to test two common criticisms of Rule 23(f): (1) that the rule favors defendants, and (2) that the circuits apply the rule inconsistently. I found little empirical support for either of these criticisms. And what little evidence there is comes with some significant caveats.
Finally, the data shed some light on the largely unknown universe of class actions. We have very little hard data on class actions — how many are brought, the types of cases, their success rate, etc. And some question whether the class action is still a viable tool for plaintiffs to obtain relief. My study provides a glimpse into one corner of the class-action universe. And, perhaps surprisingly, it's a corner in which plaintiffs are not always losing: in the Rule 23(f) context, the courts of appeals reached a plaintiff-favorable outcome over 50% of the time.
Tuesday, April 28, 2020
Yesterday the Supreme Court adopted an amendment to the Federal Rules of Civil Procedure (covered earlier here) and transmitted it to Congress. This amendment would add to Rule 30(b)(6) (the provision for a subpoena or notice of deposition directed to an organization) a duty to confer about the matters for examination. It would add the following language: “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.”
Here is the full Rules Package that has been transmitted to Congress.
Thursday, April 16, 2020
Yesterday a Sixth Circuit panel issued its decision in In re National Prescription Opiate Litigation, granting the pharmacy defendants’ petition for a writ of mandamus regarding the district court’s order allowing the counties to amend their complaints to add new claims in advance of an upcoming bellwether trial. Judge Kethledge’s opinion begins:
The rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case. Nothing in § 1407 provides any reason to conclude otherwise. Moreover, as the Supreme Court has made clear, every case in an MDL (other than cases for which there is a consolidated complaint) retains its individual character. That means an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.
The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does. The petitioners seek a writ of mandamus, on grounds that, in three instances, the district court has either disregarded or acted in flat contradiction to those Rules. We grant the writ.
Wednesday, March 25, 2020
Following on the heels of decisions by the D.C. Circuit and the Seventh Circuit earlier this month, the Fifth Circuit issued a decision today that touches on the relationship between personal jurisdiction and class actions in the wake of the Supreme Court’s Bristol-Myers decision. Specifically, the panel decision in Cruson v. Jackson National Life Insurance Co. addresses whether the defendant had waived its argument that the Texas district court lacked personal jurisdiction with respect to the claims of class members outside of Texas.
In the district court, the defendant (Jackson) had filed a Rule 12 pre-answer motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim but did not assert a lack of personal jurisdiction until it served its answer. The district court found this constituted a waiver of the lack-of-personal-jurisdiction defense, but today’s Fifth Circuit decision disagrees. Judge Duncan’s opinion states:
“Jackson’s objection to personal jurisdiction concerned only class members who were non-residents of Texas. Those members, however, were not yet before the court when Jackson filed its Rule 12 motions. What brings putative class members before the court is certification: Certification of a class is the critical act which reifies the unnamed class members and, critically, renders them subject to the court’s power. When Jackson filed its pre-certification Rule 12 motions, however, the only live claims belonged to the named plaintiffs, all Texas residents as to whom Jackson conceded personal jurisdiction. Thus, at that time, a personal jurisdiction objection respecting merely putative class members was not ‘available,’ as Rule 12(g)(2) requires for waiver.” [Slip Op. at 9-10 (citations, internal quotation marks, and footnotes omitted)]
The Fifth Circuit did not, however, address the merits of the defendant’s personal jurisdiction argument. In footnote 7, Judge Duncan states:
“We decline Jackson’s request to address the merits of its personal jurisdiction defense for the first time on appeal. . . . Because we find that Jackson did not waive the defense, and because we vacate the district court’s certification order and remand for further proceedings, Jackson is free to raise the defense again should plaintiffs seek to re-certify a class. We express no opinion on the merits of the personal jurisdiction issue, should it be raised again on remand.”
Monday, March 23, 2020
I just posted to SSRN my article, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057 (2020). Here’s the abstract:
According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.
Shout out to the Cardozo Law School, the Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy for hosting such an excellent symposium last spring. I’ll post links to all of the symposium pieces once they’re available.
Thursday, March 12, 2020
Yesterday the Seventh Circuit did what the D.C. Circuit refrained from doing one day earlier—it weighed in on the hotly-contested question of whether the Supreme Court’s Bristol-Myers decision applies to class actions filed in federal court. Judge Wood’s unanimous panel decision in Mussat v. IQVIA, Inc. begins:
Florence Mussat, an Illinois physician doing business through a professional services corporation, received two unsolicited faxes from IQVIA, a Delaware corporation with its headquarters in Pennsylvania. These faxes failed to include the opt-out notice required by federal statute. Mussat’s corporation (to which we refer simply as Mussat) brought a putative class action in the Northern District of Illinois under the Telephone Consumer Protection Act, 47 U.S.C. § 227, on behalf of itself and all persons in the country who had received similar junk faxes from IQVIA in the four previous years. IQVIA moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class.
The district court granted the motion to strike, reasoning that under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), not just the named plaintiff, but also the unnamed members of the class, each had to show minimum contacts between the defendant and the forum state. Because IQVIA is not subject to general jurisdiction in Illinois, the district court turned to specific jurisdiction. Applying those rules, see Walden v. Fiore, 571 U.S. 277, 283–86 (2014), it found that it had no jurisdiction over the claims of parties who, unlike Mussat, were harmed outside of Illinois. We granted Mussat’s petition to appeal from that order under Federal Rule of Civil Procedure 23(f). We now reaffirm the Rule 23(f) order, and we hold that the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute. We reverse the order of the district court and remand for further proceedings.
In reaching this conclusion, Judge Wood also clarified that Rule 23(f) permitted an immediate appeal of the district court’s ruling on the motion to strike—even though that ruling did not formally grant or deny class status. She explained that “[t]he district court’s order eliminates all possibility of certifying the nationwide class Mussat sought, and so to that extent it operates as a denial of certification for one proposed class.”
Monday, March 9, 2020
Today on the Courts Law section of JOTWELL is Robin Effron’s essay, Discovery and the Limits of Transsubstantivity. Robin reviews Diego Zambrano’s recent article, Discovery as Regulation, which is forthcoming in the Michigan Law Review.
Friday, December 20, 2019
Wednesday, November 20, 2019
Last month Judge Lorna Schofield (U.S. District Court for the Southern District of New York) issued an interesting decision that is one of the first to apply the 2018 amendment to Rule 23 regarding objectors to class action settlements. The new language in Rule 23(e)(5)(B) provides:
“Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with: (i) forgoing or withdrawing an objection, or (ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.”
The recent decision comes in the case of In re Foreign Exchange Benchmark Rates Antitrust Litigation. Two objectors had appealed Judge Schofield’s approval of the class settlement in that case, but the objectors reached an agreement with class counsel to dismiss the appeal in exchange for a $300,000 payment to the objectors’ counsel and a $5,000 incentive award payment to one of the objectors.
Judge Schofield refused to approve the payment, quoting this language from the Advisory Committee Note to the 2018 amendment:
“But some objectors may be seeking only personal gain, and using objections to obtain benefits for themselves rather than assisting in the settlement-review process. At least in some instances, it seems that objectors -- or their counsel -- have sought to obtain consideration for withdrawing their objections or dismissing appeals from judgments approving class settlements. And class counsel sometimes may feel that avoiding the delay produced by an appeal justifies providing payment or other consideration to these objectors. Although the payment may advance class interests in a particular case, allowing payment perpetuates a system that can encourage objections advanced for improper purposes.”
She reasoned: “The Agreement here seems to fit that description; the Agreement does little more than benefit Objector’s counsel and ‘perpetuate a system that can encourage objections advanced for improper purposes.’”
Here is the full opinion:
It’s also available on Westlaw at 2019 WL 5256957.
Here’s coverage of Judge Schofield’s decision from Bloomberg’s Perry Cooper.
PS: Because Judge Schofield refused to approve the payment, the Second Circuit appeal went forward. Just a few weeks after oral argument, the Second Circuit issued an opinion affirming Judge Schofield’s approval of the settlement. Here is the Second Circuit’s opinion:
The Second Circuit opinion is available on Westlaw at 2019 WL 5681336.
Friday, November 8, 2019
Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.
Here is today’s order:
Monday, September 23, 2019
Monday, September 16, 2019
As covered earlier, Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary of Charles Alan Wright & Arthur Miller’s Federal Practice & Procedure treatise.
The first three episodes have now been posted:
- Episode 1: Building the Wright & Miller Treatise (Arthur Miller & Jean Maess)
- Episode 2: The Evolution & Future of Class Actions (Arthur Miller & Mary Kay Kane)
- Episode 3: The Evolution & Future of Personal Jurisdiction & Pleadings (Arthur Miller, Ben Spencer & Adam Steinman)
Tuesday, September 10, 2019
Brian Soucek & Remington Lamons have published Heightened Pleading Standards for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875 (2019). Here’s the abstract:
In over a thousand cases, federal district courts have considered whether the heightened pleading standards imposed on plaintiffs in Twombly and Iqbal also apply to the affirmative defenses raised in defendant’s answers. Courts are split, and alongside the usual textual and policy arguments they offer, a less expected consideration is often raised: the fact that a majority of other courts have decided the same way. Court-counting precedent, as we call this kind of reasoning, requires justification, not least because—as we find here—judges get their count wrong a full third of the time.
This Article—based on a study of 1,141 federal opinions decided in the ten years after Twombly—does two things. It provides the first comprehensive answer to an important doctrinal question: what pleading standard do federal courts apply to defendants—and how has that standard varied over time and across the country? Second, the Article reveals that judges deciding this issue have engaged in court-counting a surprising 27% of the time. Given the previously unacknowledged importance of court-counting precedent in the lower federal courts, this Article asks whether and when it is warranted.
Friday, August 23, 2019
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.
Thursday, August 8, 2019
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.