Saturday, February 1, 2014
Suja Thomas' recent article, How Atypical, Hard Cases Make Bad Law (See, e.g., the Lack of Judicial Restraint in Wal-Mart, Twombly, and Ricci), was posted on SSRN some months ago, but has just been published at 48 Wake Forest L. Rev. 989.
Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.
Friday, January 31, 2014
Andrew Hull, law clerk to the Chief Administrative Law Judge of the Drug Enforcement Administration, has posted on SSRN his article, Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition.
Despite blatant jury misconduct that can result in an improper guilty-verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place. Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.
Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury. Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition. As will be discussed further, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the jury’s subjective deliberative process of reaching a verdict.
Part I of this paper describes the history of Rule 606(b) and its underlying policies. Part II discusses the origin of this rule — a case decided by the renowned Lord Mansfield — and questions its legitimacy as a bedrock principle in the common law tradition. Part III analyzes the policy of finality at the expense of overlooking certain juror misconduct in light of historical writings surrounding trial by jury. Finally, Part IV provides a suitable amendment to Rule 606(b) that embraces both a holistic understanding of a just trial by jury while also respecting the inviolate nature of the process of jury deliberation.
Monday, January 6, 2014
Brooke Coleman has posted an essay on SSRN, "Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms." Professor Coleman is testifying this week in Phoenix at the Civil Rules hearing, and the essay reflects the comments she intends to make.
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof — after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.
Wednesday, December 18, 2013
William H. J. Hubbard (University of Chicago) has posted A Theory of Pleading, Litigation, and Settlement to SSRN.
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important cases on pleading in fifty years. A large literature argues that these cases have raised pleading standards, empowered federal judges as the gatekeepers to federal court, and undermined the “liberal ethos” of the Federal Rules of Civil Procedure. This understanding of pleading doctrine has in turn led to predictions of dramatic effects on dismissal rates, particularly for claims, such as employment discrimination claims, where plaintiffs often lack knowledge of the defendant’s intent at the outset of the case. The accumulating empirical evidence, however, confounds these predictions. Why have the most significant pleading cases in 50 years had virtually no statistically significant effects? Why, in an era of heightened pleading, do defendants file motions to dismiss in only 6 percent of cases? Why have employment discrimination cases been largely unaffected by Twombly and Iqbal? To explain these puzzles, I develop a new theory of pleading, in which pleading practices are not driven by pleading rules and doctrine, but by litigation strategy, and in particular the use of detailed pleadings to precipitate early settlement. I argue that even in a world with no motions to dismiss, we should expect detailed, plausible pleadings to be the norm. I conclude by arguing that Twombly and Iqbal advance rather than weaken the “liberal ethos” of the Federal Rules. Viewed in this light, Twombly and Iqbal point us to a crucial margin on which they may — or may not — have had a hard-to-detect but potentially important effect: with respect to a small, but disproportionately expensive, set of cases.
Monday, December 9, 2013
Professors Charlie Sullivan and Tim Glynn (Seton Hall) have uncovered what appears to be a draft Supreme Court opinion in Pasquinade v. Quillet Enterprises, Inc. Or not. Here’s the abstract:
The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States. Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.
In light of its unverified origins, the Pasquinade opinion should not be cited as authority. Nevertheless, it contains a few points of interest, and, who knows, could represent a kind of trial run by the Justice who supposedly authored it, complete with reaction to anticipated dissent. We express no opinion on the matter and merely offer Pasquinade “for what it’s worth.”
Saturday, November 23, 2013
Scott Dodson (UC - Hastings) has posted Party Control of Judicial Authority to SSRN.
American civil litigation operates under a presumption of party control. Parties get to frame the lawsuit structure, factual predicates, and legal arguments, while the court intervenes to decide any motions the parties choose to make. Dedication to the principle of party control has expanded, spawning ubiquitous ex ante waivers and agreements that purport to bind the court, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind the trend is that parties do in fact exercise significant control over judicial authority. This Article challenges that assumption by introducing a theory of party/judge independence. Under this theory, parties have no control over judicial authority except where specifically granted such control by law. This theory of party/judge independence spawns a correlative theory of party/law independence, which posits that parties cannot change the law governing the court. Together, these theories of party/judge and party/law independence mean that the law — not party agreement — binds the court; and even when parties can lawfully make litigation choices, those choices generally do not bind the court. Independence suggests that the trend toward litigation customization is on shakier footing than previously acknowledged, while reorienting some key elements of the normative debate surrounding customization. Independence also exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. Together, the theories of party/judge and party/law independence shift the way the federal litigation system views the relationship among parties, courts, and the law.
Thursday, November 21, 2013
Michael Morley (Harvard) has posted Consent of the Governed or Consent of the Government? The Problems With Consent Decrees in Government-Defendant Cases to SSRN.
Consent decrees are a powerful mechanism through which government defendants can settle challenges to statutes and regulations, agency policies, and other administrative actions and determinations. Such decrees are troubling because they allow government agencies and officials to entrench their policy preferences against future change, impose legal restrictions and obligations on their successors, and constrain those successors’ discretion—all without following the procedures of Article I, § 7 or the Administrative Procedures Act, or a court determining that such relief is legally necessary.
Consent decrees raise serious Article III concerns because a justiciable controversy does not exist when litigants have agreed on their respective rights and liabilities and seek a consent decree. That lack of adverseness between the parties should prevent a court from issuing a substantive judicial order that declares, establishes, or modifies the parties’ rights. Such litigants instead should be required to execute a settlement agreement, which is a private contract between the parties, and the court should dismiss the case. Limitations on government contracts such as the reserved powers doctrine and general prohibition on specific enforcement prevent settlement agreements in government-defendant cases from raising the same entrenchment-related risks as consent decrees.
Justiciability issues aside, courts also lack a sufficient legal basis for issuing consent decrees in government-defendant cases. Such decrees cannot be justified by a government agency’s or official’s consent, because they lack statutory authority to bind their successors to their interpretations of legal provisions or to otherwise entrench restrictions on successors’ discretion. The decree similarly cannot be justified by the court’s inherent remedial authority, since a court does not determine whether a legal violation has occurred before approving a decree.
If courts nevertheless continue to issue consent decrees despite the justiciability and statutory problems with them, significant modifications of present practice are necessary. A court should not issue a consent decree in a government-defendant case unless it confirms that the plaintiff has stated valid claims and that the relief is required to remedy the legal violations at issue. It also should require the government defendant to file an Anders-type brief to demonstrate that these requirements are satisfied, and allow for liberal intervention so that adversely affected third parties may argue against the proposed decree. This will ensure that courts have a valid basis for imposing such relief, and close a backdoor through which government litigants can improperly entrench their preferred policies, circumvent the traditional legislative and regulatory processes, and curtail the legal authority of successor administrations.
Thursday, November 14, 2013
Kevin Clermont and Theodore Eisenberg (Cornell) have posted Plaintiphobia in the Supreme Court to SSRN.
Scott Dodson and Colin Starger have posted a one-page chart of Supreme Court pleading decisions. FRCP 8 Pleading: Supreme Court Doctrine 1957-2011.
We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.
Wednesday, November 13, 2013
The Fall 2013 newsletter from the ABA Mass Torts Litigation Committee has several blurbs of possible interest to Civil Procedure professors (the summaries below are in the newsletter's words), including:
By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman
Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.
Undoubtedly, the outcome of this case will impact the "jurisdictional gamesmanship" involved with the litigation of mass-torts actions.
Sunday, November 3, 2013
Dustin Benham has posted on SSRN his article Dirty Secrets: The First Amendment in Protective-Order Litigation, forthcoming in Cardozo Law Review.
Courts are split on whether the First Amendment limits judges' power to issue protective orders in the pretrial discovery context. Recent events highlight the importance of the issue. During the summer of 2013, a longstanding protective order in a priest-sex-abuse case was finally vacated. The discovery information made public included details about the offenders and information linking a high-ranking church official to efforts to shield church assets from victims’ abuse claims.
Other examples of important information kept from the public abound – pretrial discovery related to dangerous products, industry contamination of a city’s water supply, and domestic spying by the United States government have all been shielded at one time or another by protective orders. This Article contends that the First Amendment should provide significantly more protection for litigant speech in this context.
Thursday, October 17, 2013
Lochlan Shelfer has posted on SSRN his note, Special Juries in the Supreme Court, 123 Yale L.J. 208 (2013). Here’s the abstract:
This Note presents the first detailed analysis of the Supreme Court’s only published jury trial, Georgia v. Brailsford (1794). It examines the case’s hitherto unstudied oral arguments and list of potential jurors, and argues that the "special jury" the Court employed was a Mansfieldian special jury of merchants. Brailsford has fascinated scholars both for the intriguing prospect of the Supreme Court presiding over a jury trial, and for the case’s provocative language on the power of juries to find the law. But for all of this interest, the case remains ill-understood. This Note’s conclusion that the Supreme Court used a special jury of merchants offers insights into both of these puzzles.
Wednesday, October 16, 2013
Alex Reinert (Cardozo) has posted Screening Out Innovation: The Merits of Meritless Litigation to SSRN.
Frivolous and merit-less litigation are not the same, however. Frivolous claims are easier to identify at the outset of litigation because they rest on unrecognizable legal theories or fantastical factual allegations. More importantly, merit-less litigation has a distinct and identifiable value that is obscured by conflating merit-less claims with frivolous ones. Unlike frivolous litigation, merit-less litigation can bring to light facts that may lead to systematic reform (even where no legal cause of action lies), lead to legal innovation by announcing new interpretations of common law and statutory and constitutional texts, and pave the way for future changes in the law. Recognizing the value of merit-less litigation and distinguishing merit-less from frivolous cases therefore raises questions about the recent barriers that have been imposed to civil litigation. Taking the value of merit-less litigation into account is essential if we are to strike the correct balance between the costs and benefits of keeping courthouse doors open.
Tuesday, October 8, 2013
Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander (Northwestern) entitled James Wilson, the Committee of Detail, and the Federal Judiciary. It reviews a recent article by William Ewald (U. Penn.), The Committee of Detail, 28 Const. Comment. 197 (2012).
Thursday, October 3, 2013
Wednesday, October 2, 2013
Now in print is an essay by Prof. Benjamin Spencer (Washington & Lee) entitled Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710 (2013). Here’s the abstract:
Wednesday, September 18, 2013
Herbert M. Kritzer, Guangya Liu, and Neil Vidmar have posted on SSRN their article An Exploration of Non-Economic Damages In Civil Jury Awards. This article is forthcoming in William & Mary Law Review.
Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of economic damages increased. We found less consistency in our simple regression models where we predicted the log of noneconomic damages from the log of economic damages. In all of those models, the slopes of the fitted line were positive, but the slopes and the measures of fit (r2) varied from dataset to dataset, and among type of case within those datasets with multiple case types. Also, where we had the same type of case across datasets, we found variation in the fit and slope. With two of the datasets we were able to extend our regression models with regard to medical malpractice cases. Using the RAND jury study from 1995-99 we were able to separate out California’s medical malpractice cases which were governed by the MICRA cap on noneconomic damages from the cases coming from five other states included in the study. We found that MICRA dampened the relationship between economic and non-economic damages. Using the data we coded from on Cook County, Illinois jury verdicts, we were able to expand our regression model to include the NAIC severity index plus the gender and age of the plaintiff. We found no evidence that the two demographic variables systematically influenced the amount of non-economic damages, but the severity of injury did make a difference. Most importantly, we found that the severity of the injury conditioned the relationship between economic and non-economic damages.
Monday, September 9, 2013
Reginald Sheehan, Stacia Haynie, Kirk A. Randazzo, and Donald R. Songer have posted on SSRN their article, "Winners and Losers in Appellate Court Outcomes: A Comparative Perspective."
The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.
Friday, September 6, 2013
The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013). The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students.
My own classroom policy seems somehow misguided in light of this conclusion. I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses. My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out. After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to.
By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.
Monday, September 2, 2013