Monday, July 6, 2020
Allan Erbsen has posted on SSRN a draft of his article, A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law, 10 U.C. Irvine L. Rev. (forthcoming 2020). Here’s the abstract:
This Article proposes overhauling the Supreme Court’s approach to choice of law under Erie and Hanna. It develops three primary points.
First, Hanna’s “unguided” “twin aims” of Erie test for resolving conflicts between federal common law and state law is irredeemably flawed. The test is a canon of interpretation masquerading as a choice-of-law rule and fails at both tasks. The Hanna approach:
(1) relies on an arbitrary distinction between federal common law and statutory law that elides the indeterminate boundary between lawmaking and interpretation;
(2) fails to directly confront questions about federal common law’s validity and scope;
(3) cannot rely on the oft-cited but inapposite Rules of Decision Act; and
(4) ignores the judiciary’s authority to fill gaps in procedural codes with federal common law.
This Article is also the first to extensively explore how FRCP 83’s authorization of gap-filling undermines Hanna’s approach to choice of law.
Second, preemption doctrine implementing the Supremacy Clause should fill the choice-of-law role that courts mistakenly assign to Hanna. Under the Supremacy Clause, valid federal law — including federal common law — preempts state law on matters within the federal law’s scope. The “unguided” Hanna inquiry is misguided because it invents a distracting alternative to preemption analysis.
Third, reframing choice of law in terms of preemption spotlights policy questions that courts applying Hanna overlook. Preemption can occur only when a particular federal law is a valid exercise of federal lawmaking power and encompasses a disputed issue. Courts considering whether to apply federal law — including federal common law — must therefore assess the federal law’s validity and breadth. Relevant questions include:
(1) whether the federal government has authority to create law covering the issue;
(2) if so, which federal institutions — Congress or the judiciary — can create law; and
(3) whether federal courts should interpret the ensuing federal law broadly or narrowly to embrace or avoid conflict with state law.
These sensitive policy questions would benefit from direct attention and should not be blurred with Hanna’s tangents.
This approach would make choice of law analysis more coherent, enhance understanding of federal common law, and require courts to directly engage the federalism and separation of powers concerns at Erie’s core.
Friday, July 3, 2020
The Akron Law Review has published its symposium issue on federal appellate procedure, featuring contributions by Andrew Pollis, Joan Steinman, Andra Robertson & Greg Hilbert, Mike Solimine, Bryan Lammon, and Adam Steinman.
Unfortunately we were unable to gather together for the in-person symposium because of the COVID-19 pandemic. But it’s great to see the issue “in print.” Thanks to the law review editors for their terrific work!
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 22, 2020
The William & Mary Law Review has published its symposium issue, The Role of Courts in Politically Charged Moments. It features contributions by Jack Beermann, Erwin Chemerinsky, Barry Cushman, Bert Huang, Alli Larsen, Marin Levy, and Mary-Rose Papandrea.
Wednesday, June 17, 2020
Alyssa King has published Arbitration and the Federal Balance, 94 Ind. L.J. 1447 (2019). Here’s the abstract:
Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek to make arbitration more closely resemble judging. Some common reforms that have been proposed or adopted at the state level include conflict-of-interest rules for arbitrators, default process rules, and publication requirements. These proposals might bring arbitration more in line with the processes and outcomes one might expect from a state court.
Reform along these lines is worth pursuing, but faces two significant problems. The first is federal preemption. Most prior cases have focused on state law controls before an arbitration gets started. State laws implemented during and after arbitration may avoid the same fate. A less obvious problem comes from the degree certain state reforms aim to treat arbitration as a substitute for court. Arbitrators lack the authority that judges have to develop the law, creating a further due process problem for parties who expect to be operating in a common law system. Accommodating arbitration may mean moving further from a model of common law adjudication.
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.
Friday, June 5, 2020
Today the Lewis & Clark Law Review posted the symposium issue, featuring contributions by Jennie Anderson; Bob Klonoff; Teddy Rave & Zach Clopton; Dave Marcus; David Noll; Lynn Baker & Steve Herman; Josh Davis & Brian Devine; Alexi Lahav; Elizabeth Cabraser & Adam Steinman; Bob Bone; Gerson Smoger; Judith Resnik, Stephanie Garlock & Annie Wang; Brian Fitzpatrick; and Arthur Miller.
My personal thanks to the Pound Institute, Lewis & Clark, and Bob Klonoff for organizing a wonderful symposium, and to the law review editors for their excellent editorial work. It’s great to see the finished product!
Wednesday, June 3, 2020
Friday, May 29, 2020
The Notre Dame Law Review has published its symposium issue, Federal Courts, Practice & Procedure: State Standing. It features contributions by Tara Grove, Ernie Young, Andy Hessick, Brad Mank & Mike Solimine, Jonathan Nash, Ann Woolhandler & Michael Collins, Robert Mikos, Katherine Crocker, Seth Davis, and Aziz Huq.
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.
Monday, May 18, 2020
Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Discretion, Division, and the Supreme Court’s Docket. Allan reviews Jonathan Nash and Michael Collins’ recent article, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. (forthcoming 2021).
Monday, April 20, 2020
Thursday, April 9, 2020
Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, The Wild, Wild West for Low Wage Workers with Wage and Hour Claims. Suja reviews Llezlie Green’s recent article, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019).
Tuesday, March 24, 2020
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.
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.
Tuesday, March 3, 2020
The Pound Civil Justice Institute has published the report of its 2019 Judges Forum, Aggregate Litigation in State Courts: Preserving Vital Mechanisms, which features academic papers by Teddy Rave and Myriam Gilles, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Monday, March 2, 2020
Amanda Rose has posted drafts of two papers on SSRN. One is Cutting Class Action Agency Costs: Lessons from the Public Company, which is forthcoming in the U.C. Davis Law Review. Here’s the abstract:
The agency relationship between class counsel and class members in Rule 23(b)(3) class actions is similar to that between executives and shareholders in U.S. public companies. This similarity has often been noted in class action literature, but until this Article no attempt has been made to systematically compare the approaches taken in these two settings to reduce agency costs. Class action scholars have downplayed the importance of the public company analogy because public companies are subject to market discipline and class actions are not. But this is precisely why the analogy is useful: because public companies are subject to market discipline, the tools they utilize to reduce agency costs are more likely to be efficient. This Article looks to those tools as inspiration for class action reform, proposing several novel ways to improve current practice.
Another is Classaction.gov. Here’s the abstract:
This Essay proposes the creation of a federally-run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multi-forum litigation, the limited success of CAFA’s notice requirement in spurring effective pubic oversight of class actions, and the potential for abuse inherent in cy pres settlement awards.
Monday, February 24, 2020
Today on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, A Return to First Principles: Class Actions & Conservatism. Jasminka reviews Brian Fitzpatrick’s recent book, The Conservative Case for Class Actions.
Friday, February 14, 2020
Suja Thomas has posted on SSRN a draft of her article, The Customer Caste: Lawful Discrimination by Public Businesses. Here’s the abstract:
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.