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.
Thursday, August 1, 2019
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
Thomas Main, Over Passive-Aggressive Model of Civil Adjudication
Linda Mullenix, Is the Arc of Procedure Bending Towards Injustice?
Tuesday, July 30, 2019
Patrick Woolley has published Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565 (2019). Here’s the abstract:
It is widely taken for granted that Federal Rule of Civil Procedure 4(k) may validly regulate whether a defendant is amenable to personal jurisdiction in federal court. But whether a person is subject to the authority of a court is a substantive matter outside the scope of rulemaking authorized by the Rules Enabling Act (REA). This fundamental principle was well understood when the Federal Rules were originally drafted. It has since been obscured by the failure of courts and commentators alike to place in historical context the 1938 version of Rule 4 and the Supreme Court’s 1946 decision validating that Rule.
The 1938 Rule reflected a paradigm shift in jurisdictional thinking that began to take hold just before the REA became law in 1934: the recognition when a defendant is otherwise amenable to jurisdiction in a federal district, requiring that notice through service of summons be given in the district itself is a formality that serves no substantive purpose. The 1938 Rule simply put aside that formality.
Almost forty years later, the Court intimated in dicta that a Federal Rule may regulate whether a person is amenable to jurisdiction. But casual dicta in a decision that did not even discuss the REA cannot override basic statutory limits on rulemaking. And in the absence of a federal statute that requires otherwise, the Rules of Decision Act generally demands that state law govern amenability to jurisdiction.
Recognizing that the REA does not authorize rules regulating amenability will have a real (albeit limited) effect on jurisdiction in federal court. To the extent that effect is undesirable, the remedy lies with Congress.
Thursday, June 6, 2019
Today the en banc Ninth Circuit issued its decision in In Re Hyundai and Kia Fuel Economy Litigation (covered earlier here). Judge Nguyen authors the majority opinion, and Judge Ikuta authors a dissenting opinion.
Contrary to the earlier panel ruling, the en banc Ninth Circuit affirms the district court with respect to both class certification and approval of the settlement.
Monday, June 3, 2019
Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:
Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
Wednesday, May 29, 2019
Ion Meyn has published The Haves of Procedure in the William & Mary Law Review. Here’s the abstract:
In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.
The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the forum and thus prefers a permissive pleading standard. In contrast, a “civil have” seeks to impede a plaintiff from bringing suit and thus prefers a demanding pleading standard. As to discovery, “criminal haves,” possessing actionable facts and seeking to control the pretrial distribution of information, resist discovery and judicial involvement. In contrast, “civil haves” often need information to pursue legal objectives, and thus prefer a formal discovery phase, along with the option of judicial intervention to temper instances of discovery abuse. The procedural divide allows the “haves” to achieve these otherwise incompatible objectives.
In the absence of a procedural divide, “criminal haves” and “civil haves” would engage in contestation over what rules govern litigation. This Article suggests that, should civil and criminal litigants be subject to the same rules, as initially proposed during federal reform in the 1940s, the introduction of litigants into a unified forum would result in a fairer approach to procedure, mitigate existing inequalities, and accomplish some litigation objectives of the “havenots.”
Wednesday, May 22, 2019
Seth Endo has published Discovery Hydraulics, 52 UC Davis L. Rev. 1317 (2019). Here’s the abstract:
Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. However, like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.
In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information; and (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. Last, but not least, a significant practical benefit is that this analytical approach should provide courts with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.
Thursday, May 9, 2019
Fifty years ago, Charles Alan Wright and Arthur Miller first published the Federal Practice & Procedure treatise. Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary.
The first episode, which is now posted, features Arthur Miller discussing the initial development of the treatise.
Monday, April 22, 2019
Maureen Carroll has published Class Actions, Indivisibility, and Rule 23(b)(2), 99 B.U. L. Rev. 59 (2019). Here’s the abstract:
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the plaintiffs seek.
Some defendants have encouraged federal courts to adopt an extremely restrictive version of indivisibility, which I term “endpoint indivisibility,” as a standard for applying Rule 23(b)(2). This Article argues that an endpoint indivisibility requirement would be fundamentally inconsistent with the historical models for Rule 23(b)(2). Moreover, such a requirement would have devastating effects on civil rights litigation. An alternative standard, which I term “root-cause indivisibility,” offers a better logical and historical fit.
Tuesday, March 26, 2019
Now on the Courts Law section of JOTWELL is my essay, When American Pipe Met Erie. I review a recent article by Steve Burbank and Tobias Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).
Monday, March 4, 2019
Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)
On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”
You can find all the details – and register for the symposium (it’s free) – here. Come join us!
From the announcement:
An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.
The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.
Confirmed panelists include:
Wednesday, February 27, 2019
SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling
Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.
In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:
“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]
Howard Wasserman has a more detailed recap at SCOTUSblog.
Thursday, January 31, 2019
Rhonda Wasserman has posted on SSRN her article, Ascertainability: Prose, Policy, and Process, 50 Conn. L. Rev. 695 (2018). Here’s the abstract:
One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like soft drinks and snacks and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue.
Ascertainability is not only of great practical importance, but it is interesting on three different levels. First, there is a question of prose – whether the text of the Rule supports the implication of the strict ascertainability requirement. Second, there is a question of policy – whether concern for the class action defendant, the absent class members, or the trial court overseeing the action justifies imposition of the strict requirement, notwithstanding its harsh impact on consumer class actions. Third, there is a process question: which governmental actor – the lower courts, the Supreme Court, the Advisory Committee on Civil Rules, or Congress – has the greatest institutional competency to resolve the policy issue and establish a uniform approach to ascertainability. This Article addresses each of these questions in turn.
Thursday, December 20, 2018
Campos on the Bolch Judicial Institute’s Guidelines and Best Practices for Implementing the 2018 Amendments to FRCP 23
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Practice Makes Perfect. Sergio reviews Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions, which was published in 2018 by the Bolch Judicial Institute at Duke Law School.
Wednesday, December 19, 2018
Diego Zambrano has published Judicial Mistakes in Discovery, 113 Nw. U. L. Rev. 197 (2018). Here’s the abstract:
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Saturday, December 1, 2018