Friday, October 9, 2020
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, #Getyour$$now!: A New Plan for Class Action Notice and Administration. Robin reviews Amanda Rose’s article, Classaction.gov, U. Chi. L. Rev. (forthcoming 2020).
Wednesday, September 30, 2020
Case-Linked Jurisdiction and the Ford Cases (Guest Post by Howard M. Erichson, John C. P. Goldberg & Benjamin C. Zipursky)
Howie Erichson, John Goldberg, and Ben Zipursky present the following guest post on the much-anticipated Ford cases that will be argued next week:
* * *
On October 7, an eight-member Supreme Court will hop on the phone and hear oral argument in a pair of cases carried over from last term: Ford Motor Company v. Montana Eighth Judicial District Court and Ford Motor Company v. Bandemer. Because these cases focus on personal jurisdiction, Justice Ginsburg will be especially missed. A former civil procedure professor, Justice Ginsburg was the most important voice on the Court in this area of the law. Here, as elsewhere, she occupied positions of principle that cut across political divides.
The Court will need wisdom for these cases because they present a surprisingly difficult legal problem whose resolution could have a significant impact on future civil litigation. Suits were brought on behalf of a Montana resident and a Minnesota resident involved in car accidents in their respective home states. The Montana resident was killed and the Minnesotan suffered a severe brain injury. In both cases, the injury was allegedly caused by a product malfunction in the Ford vehicle in which they rode: a Ford Explorer with rollover problems in the Montana case and a Ford Crown Victoria with defective airbags in Minnesota. Ford has argued that, because the Explorer was first sold by a Ford dealer in Washington State, rather than Montana, the Montana courts have no personal jurisdiction over it. Similarly, it has argued that because the Crown Victoria was first sold by a Ford dealer in North Dakota, rather than Minnesota, the Minnesota courts have no personal jurisdiction over it. The high courts of Montana and Minnesota rejected Ford’s arguments, but Ford successfully petitioned the U.S. Supreme Court to hear both cases. Due to COVID-19, the oral argument originally scheduled in May of 2020 was pushed over until the Term that is about to begin.
Tuesday, September 29, 2020
I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.
Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.
Thursday, September 10, 2020
Today on the Courts Law section of JOTWELL is Leonardo Mangat’s essay, Unshrouding Our Day-to-Day Courts. Leonardo reviews Justin Weinstein-Tull’s article, The Structures of Local Courts, which is forthcoming in the Virginia Law Review.
Thursday, September 3, 2020
Rich Freer has posted on SSRN a draft of his article, The Political Reality of Diversity Jurisdiction, which is forthcoming in the Southern California Law Review. Here’s the abstract:
Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts.
But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine.
These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.
Wednesday, August 26, 2020
Judge Patrick Higginbotham, Judge Lee Rosenthal, and Professor Steve Gensler have published Better by the Dozen: Bringing Back the Twelve-Person Civil Jury in the latest issue of Judicature. Their article begins:
A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers. To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.
History. Social science. Civics. Common sense. That’s a powerful quartet. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.
Tuesday, August 11, 2020
Now on the Courts Law section of JOTWELL is my essay, No Laughing Matter. I review a recent article by Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019).
Thursday, August 6, 2020
The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.
Tuesday, August 4, 2020
Elizabeth Cabraser and I have posted on SSRN our recent article, What Is a Fair Price for Objector Blackmail? Class Actions, Objectors, and the 2018 Amendments to Rule 23, 24 Lewis & Clark L. Rev. 549 (2020). Here’s the abstract:
As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes — along with other on-the-ground developments — are important steps toward improving the class action settlement process.
Thursday, July 30, 2020
Bob Klonoff has posted drafts of two articles on SSRN: Class Action Objectors: The Good, the Bad, and the Ugly, which is forthcoming in the Fordham Law Review; and The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, which is forthcoming in the University of Missouri-Kansas City Law Review.
Here are the abstracts:
Tuesday, July 28, 2020
Today on the Courts Law section of JOTWELL is Jordan Singer’s essay, The Machinery of Justice. Jordan reviews Amnon Reichman, Yair Sagy & Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).
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.