Wednesday, December 11, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Due Process and National Injunctions. Jim reviews Mila Sohoni’s recent article, The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review.
Wednesday, December 4, 2019
The Pound Civil Justice Institute has announced the winners of its 2020 Civil Justice Scholarship Award. From the announcement:
The Pound Civil Justice Institute has chosen the recipients of the Institute’s 2020 Civil Justice Scholarship Award: Professor Zachary D. Clopton (Northwestern) and Professor Adam N. Steinman (Alabama).
Professor Clopton, of Northwestern Pritzker School of Law, is honored for his article Procedural Retrenchment and the States, 106 Calif. L. Rev 411 (2018), in which he evaluated possible state-court and state-enforcement responses to the Roberts Court’s recent procedural decisions, and suggested further interventions by state courts and public enforcers that could offset the recent regression in access to justice.
Professor Steinman, of The University of Alabama School of Law, is honored for his article Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), in which he analyzed the United States Supreme Court’s recent decisions on personal jurisdiction in civil litigation, examined the situations where personal jurisdiction doctrine is most likely to threaten access to justice and the enforcement of substantive law, and proposed ways to work within the Court’s case law to preserve meaningful access and enforcement.
High Distinction for an Article: The Institute also recognized an article for high distinction among the nominations received: The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Geo. L. J. 559 (2017), by Professor Deborah Brake, of the University of Pittsburgh School of Law. In an interesting and well-written article addressing one of the most frustrating aspects of employment discrimination law, pay discrimination, Brake argues for using recent developments in the law of pregnancy discrimination to shift the understanding of discriminatory intent in the jurisprudence of equal pay.”
On a personal note, I’m very grateful to be chosen for this award, and to be recognized alongside Zach and Deborah as well as last year’s honorees Alexandra Lahav, Suja Thomas, and Myriam Gilles. Congrats to all, and sincere thanks to the Pound Civil Justice Institute!
Wednesday, November 27, 2019
Today on the Courts Law section of JOTWELL is Ryan Azad’s essay, Decision-Making in the Dark. Ryan reviews Merritt McAlister’s recent article, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, which is forthcoming in the Michigan Law Review.
Monday, November 18, 2019
Pound Civil Justice Institute/Lewis & Clark Law School Symposium: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"
Wednesday, November 13, 2019
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, The Negotiation Class Action. Jay reviews a recent paper by Francis McGovern & Bill Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders.
Monday, November 4, 2019
Mullenix on Choi, Erickson & Pritchard on Attorneys Fees in Securities Fraud Class Action "Mega-Settlements"
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements. Linda reviews a recent paper by Stephen Choi, Jessica Erickson, and Adam Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions.
Thursday, October 17, 2019
Now on the Courts Law section of JOTWELL is Pam Bookman’s essay, New Courts, New Perspectives. Pam reviews two recent articles: Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, Va. J. Int’l L. (forthcoming 2020); and Will Moon, Delaware’s New Competition, Nw. U. L. Rev. (forthcoming 2020).
Friday, October 11, 2019
Sergio Campos has published The Uncertain Path of Class Action Law, 40 Cardozo L. Rev. 2223 (2019). Here’s the abstract:
For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This Article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.
Friday, October 4, 2019
Ann Juliano has published The Games We Play, 63 St. Louis U. L.J. 453 (2019). The article begins:
We Civil Procedure professors like to shake our heads and grimly note the unique difficulties we face in teaching Procedure to first year students. We use phrases like “alien and incomprehensible,” “abstract and alienating,” and “not the most spellbinding course in the first-year curriculum.” Students approach the “pamphlet” of the Federal Rules of Civil Procedure (“the Rules”) with trepidation and a weary sigh. To fight against this predisposition and to demonstrate to students that they have read, interpreted, and employed “rules” for many years, I now begin the semester by playing board games. By spending some time in the first class with Monopoly, Jenga, and several other games, I hope to accomplish many of the objectives suggested in the pedagogical research. More specifically, by playing card games or Apples to Apples, I am able to raise important points about rules and how we interpret them while setting a less formal, collegial tone for the semester.
Tuesday, October 1, 2019
The Hastings Law Journal has published an issue dedicated to Geoff Hazard, featuring articles and tributes by David Faigman, Ben Barton & Deborah Rhode, Antonio Gidi, Neil Andrews, Loïc Cadiet, Ed Cooper, Judge William Fletcher, William Hodes, Peter Jarvis, Mary Kay Kane, Susan Koniak, Evan Lee, John Leubsdorf, Rick Marcus, Koichi Miki, Judge Anthony Scirica, Cathie Struve, Michele Taruffo, and Mike Traynor.
Friday, September 27, 2019
Mila Sohoni has posted on SSRN a draft of her article, The Lost History of the 'Universal' Injunction, which is forthcoming in the Harvard Law Review. Here’s the abstract:
The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide cases “in … equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced by the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it also allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired, and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial re-definition of Article III — should halt.
Wednesday, September 25, 2019
John Coyle has published Interpreting Forum Selection Clauses, 104 Iowa L. Rev. 1791 (2019). Here’s the abstract:
Over the past half century, courts in the United States have developed canons of construction that they use exclusively to construe forum selection clauses. These canons play an important role in determining the meaning of these clauses and, by extension, whether litigation arising out of a particular contract must proceed in a given place. To date, however, these canons have attracted surprisingly little attention in the academic literature.
This Article aspires to fill that gap. It provides the first comprehensive taxonomy of the canons that U.S. courts use to construe forum selection clauses. These interpretive rules fall into four groups: (1) the canons relating to exclusivity, (2) the canons relating to scope, (3) the canons relating to non-signatories, and (4) the canons relating to federal court. When a judge is presented with ambiguous language in a forum selection clause, she will frequently turn to one of these interpretive rules of thumb to resolve the ambiguity.
In principle, each of these canons produces outcomes that are broadly consistent with the preferences of most contracting parties. In practice, this is not always the case. Drawing upon interviews and e-mail exchanges with 86 attorneys, the Article shows that several of these canons produce outcomes that are arguably inconsistent with majoritarian preferences. In such cases, the Article argues that these canons should be cast aside. In their place, the courts should adopt new interpretive default rules that more closely track the preferences of most contracting parties.
The Article’s final contribution to the literature relates to contract drafting. If a forum selection clause is unambiguous, there will be no need for the courts to invoke the canons. The Article concludes by urging contracting parties incorporate certain words and phrases into their contracts ex ante so as to avoid incurring the costs associated with litigating their meaning ex post.
Monday, September 23, 2019
Wednesday, September 18, 2019
Kathleen Noonan, Jonathan Lipson & Bill Simon have published Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation, 94 Ind. L.J. 545 (2019). Here’s the abstract:
Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.
This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.
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.
Wednesday, September 4, 2019
Today on the Courts Law section of JOTWELL is Marin Levy’s essay, Confronting Online Advocacy. Marin reviews Jeff Fisher & Alli Larsen’s recent article, Virtual Briefing at the Supreme Court, 109 Cornell L. Rev. (forthcoming 2019).
Thursday, August 29, 2019
Rosalind Dixon and Vicki Jackson have published Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283 (2019). Here’s the abstract:
Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model’s attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts—for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions’ appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”—through some meaningful degree of domestic support for the role of such judges and through the foreign judges’ own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”
Wednesday, August 28, 2019
Monday, August 26, 2019
Caleb Nelson has published "Standing" and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703 (2019). Here’s the abstract:
Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.
Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.
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.