Monday, August 19, 2019
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.
Friday, August 16, 2019
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.
Wednesday, August 14, 2019
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.
Monday, August 12, 2019
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.
Friday, August 9, 2019
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.
Thursday, August 8, 2019
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.
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?
Wednesday, July 31, 2019
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.
Monday, July 29, 2019
Jane Stoever has published Access to Safety and Justice: Service of Process in Domestic Violence Cases, 94 Wash. L. Rev. 333 (2019). Here’s the abstract:
Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve personal service--whether because respondents evade service or are impossible to locate yet continue threats and abuse--are left without vitally needed protection. Procedural rules operate to inhibit the legal remedy's effectiveness and create a two-stage dilemma by: (1) often requiring notice prior to the temporary protection order stage, which can create danger pre-hearing, and (2) requiring personal service for a full protection order when danger may still exist and the respondent may successfully evade service.
In stark contrast, other areas of the law--including antitrust, bankruptcy, domestic and international business, eviction, divorce, and termination of parental rights--readily permit alternative service methods. In seeking to understand the law's differential treatment of domestic violence, this Article explores the historic origins of the heightened notice and service requirements for domestic violence remedies and the ongoing race, class, and gender implications, including as displayed by the #MeToo movement. In proposing expanded service methods that satisfy due process rights and address procedural justice, the Article examines both the respondent's interests and the petitioner's constitutionally protected right to a hearing on the merits, which is not normally acknowledged. States need not wait for tragedy before making the protection order remedy more accessible, as has been the pattern for several states that have adopted alternative service means for domestic violence remedies.
Friday, July 26, 2019
Sarath Sanga has published A New Strategy for Regulating Arbitration, 113 Nw. U. L. Rev. 1121 (2019). Here’s the abstract:
Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act.
In this Article, I argue that states can and should adopt a new strategy: Deter parties from forming such contracts in the first place. The Article proceeds in three parts.
First, I explain the problem. Over the last fifty years, the Supreme Court systematically immunized arbitration provisions against every plausible contract defense. Yet the Supreme Court continues to insist that, just as the Federal Arbitration Act requires, arbitration agreements are still subject to “generally applicable contract defenses, such as fraud, duress, or unconscionability.” This is false.
Second, I present the first large-scale evidence on the pervasiveness of arbitration. The Supreme Court’s arbitration precedents have effect only to the extent private parties agree to arbitrate their disputes. To study this, I use machine-learning protocols to parse millions of filings with the Securities and Exchange Commission and create a database of nearly 800,000 contracts formed by public companies. These contracts include employment agreements, credit agreements, joint ventures, purchases, and others. Employment contracts are by far the most likely to include a mandatory arbitration provision.
Finally, I argue that, because the Supreme Court has all but stripped states of their power to enforce contracts, states should adopt policies that deter formation of objectionable contracts. For example, states cannot prohibit forced arbitration of sexual harassment claims. They can, however, prohibit sexual harassment as a subject matter for employment contracts; they can also enforce this with civil penalties and whistleblower rewards. Similarly, states cannot stop an employer from arbitrating under the laws of another jurisdiction, thereby evading mandatory limits on noncompete agreements. But states can declare noncompetes illegal, levy civil fines on employers that form them, and again offer employees whistleblower rewards to report violations. These approaches work because they create a cause of action for a third party—the state—who is not subject to the arbitration agreement. And unlike past efforts, these laws would not be preempted because they do not “derive their meaning from the fact that an agreement to arbitrate is at issue.”
Tuesday, July 23, 2019
Seth Davis has published The New Public Standing, 71 Stan. L. Rev. 1229 (2019). Here’s the abstract:
Today’s public litigants are not citizens or individual taxpayers who, suffering no injury of their own, seek instead to stand for the public. Instead, they are states that have suffered financial injuries. In recent years, states have brought many high-profile public law cases against the federal government based upon financial injuries. State standing to sue the federal government for financial injuries is the new public standing.
This Article’s goal is to offer a comprehensive account of the new public standing. It argues that we should not hope—or expect—that the federal courts will treat the new public standing with the disfavor they have shown to citizen and taxpayer standing. Nor, however, should we hope or expect that the federal courts will treat the new public standing as indistinguishable from private standing based upon financial injuries.
One aspect of this thesis is doctrinal and normative. Under the U.S. Supreme Court’s Article III jurisprudence, financial injuries are the paradigmatic example of an injury in fact that supports standing to sue, as contrasted with an ideological injury that does not suffice for standing. What makes the new public standing doctrinally difficult is that while some financial injuries to states mirror those to private parties, others do not. And what makes these cases normatively difficult is that the state attorneys general who sue based upon financial injuries to their states are ideological litigants. The new public standing thus requires us to rethink the terms of the debate about state standing to sue the federal government.
Another aspect of this thesis is descriptive and positive. To ground its normative analysis, this Article attempts to identify the ideological, institutional, and political factors that have contributed to the new public standing and that will shape its future prospects. Analysis of these factors leads to the conclusion that the Court will preserve the new public standing while tinkering with its remedial scope. The new public standing will prove more durable than citizen and taxpayer standing for the public, but will not substitute for the promise of an individual standing upon her conscience in federal court.
Monday, July 15, 2019
Thursday, June 13, 2019
Eugene Volokh has published Chief Justice Robots, 68 Duke L.J. 1135 (2019). Here’s the abstract:
Say an AI program someday passes a Turing test, because it can converse in a way indistinguishable from a human. And say that its developers can then teach it to converse—and even present an extended persuasive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, capable of regularly winning brief-writing competitions against human lawyers.
Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment.
Wednesday, June 12, 2019
Lisa Grumet has published Hidden Nondefense: Partisanship in State Attorneys General Amicus Briefs and the Need for Transparency, 87 Fordham L. Rev. 1859 (2019). It begins:
In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public.
This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws without disclosing that similar state or local laws exist in the SAGs’ own jurisdictions. This Essay explores this problem through analysis of multistate amicus briefs filed in the 2017 Supreme Court term. It proposes requiring that SAGs disclose relevant laws from their state when they file amicus briefs on behalf of their state with the Supreme Court.
Wednesday, June 5, 2019
Antonio Gidi has posted on SSRN a draft of his article, Incorporation by Reference: Requiem for a Useless Tradition, which is forthcoming in the Hastings Law Journal. Here’s the abstract:
Lawyers mechanically introduce each count in a pleading with the talismanic clause of “repeat and reallege” everything said before in that same pleading. This medieval practice made sense in the formalistic common-law pleading of the sixteenth century but has no place in modern pleadings.
This article traces the origin of the practice, demonstrates that it is not used in any other country, and argues that it is an empty tradition that must stop.
Tuesday, June 4, 2019
Today on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits. Howard reviews two recent articles: Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. (forthcoming 2019), and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. (forthcoming 2019).
Zoe Niesel has published #PersonalJurisdiction: A New Age of Internet Contacts, 94 Ind. L.J. 103 (2019). Here’s the abstract:
No other issue has proved more challenging in the sphere of personal jurisdiction than the internet. In addition to refusing to respect territorial boundaries, the internet allows users to access, change, create, and manage content in ways that are not present in physical space. Further, the rise of social media and other more interactive technologies, such as bots and cookies, make determining a user’s minimum contacts with a forum more challenging than ever. The time has come to acknowledge that the internet has minimum contacts with every jurisdiction.
Current approaches used when personal jurisdiction and the internet collide are straining under technological developments. The premiere approach to internet jurisdiction is the so-called “Zippo test,” which bases personal jurisdiction on whether a website is “interactive.” The Zippo approach has left the case law inconsistent and does not account for recent innovations, such as social media, targeted advertising, artificial intelligence, and bots. This Article proposes a shift in the manner in which courts should think about personal jurisdiction and website interactivity. Specifically, this Article proposes that the time has come to embrace a revised analysis that incorporates traditional fairness factors with the defendant’s implicit acknowledgement that the internet is targeting a national forum.
The analytical framework proposed by this Article seeks to remove inconsistent applications of an outdated Zippo test. However, it also attempts to be proactive. The internet is moving to become even more customized, ubiquitous, and self-aware than ever before. A new way to examine internet contacts is thus needed to account for changing technologies to ensure fairness and predictability.
Friday, May 31, 2019
Alexandra Lahav and Peter Siegelman have published The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 U.C. Davis L. Rev. 1371 (2019). Here’s the abstract:
For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained — albeit with increased volatility — for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most obvious explanations for the remaining fall in the win rate and subsequent volatility do not fit the data and assumptions about rational behavior.
Changes in system-level “outputs” of the justice system require a justification that is consistent with rule of law values. The absence of such an explanation for the falling win rate should be a source of concern. Further empirical studies could help explain this mystery, but such studies require data only in the possession of the courts themselves, or that are not currently systematically collected. We conclude with an explanation for why systemic studies of the workings of the justice system are important.
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.”