PrawfsBlawg

Practical Implications of Legal Scholarship

Prison officials seized a copy of a prisoner's copy of the Georgetown Law Journal.  The prisoner claimed that this confiscation denied him access to the courts and the Fifth Circuit affirmed the district court's conclusion that this claim was frivolous:

An inmate alleging the denial of his right of access to the courts must demonstrate a relevant, actual injury stemming from the defendant’s unconstitutional conduct. . . . Brewster wrote in his more definite statement that his research on several pending lawsuits was delayed by the law journal’s confiscation and that his ability to draft pleadings was hindered by the loss of the wite-out. On appeal, Brewster argues that “he was attempting to formulate an appeal of his criminal conviction” when the law journal was confiscated. At no point in any of his pleadings does Brewster identify any issue that he would have brought in his criminal appeal or other suit if the law journal had not been taken from him. This omission is fatal to his claim.

Much has been made of the alleged irrelevance to modern legal scholarship to practical litigation, so I mostly found myself wondering-- what issue of the Georgetown Law Journal was it?

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

The role of lawyers in making the law

Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great. It could lend some interesting insight into the future of civil rights attorney fees.

There were some interesting exchanges involving Chief Justice Roberts about the role attorneys play in the process of making the law and whether good lawyering truly affects the outcome and how. Roberts commented that "The results that are obtained are presumably the results that are dictated or command or required under the law." He later asked "[W]hat does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?"

These exchanges connect to the Roberts view of judging (last seen in the Sotomayor hearings) as mechanical application of obvious law to fact to reach the one clear answer. But his comments seem to suggest that, in his world view, lawyers do not have a significant role to play, since what they do does not (or at least should not) affect the court finding the "right" answer. Otherwise, why wouldn't the quality of the lawyers and their lawyering matter? This view is ironic, of course, because the courts have raised adversariness to an essential component of judicial decisionmaking and one of the cornerstones of whether a case is even justiciable--courts must decide cases in concrete factual situations involving truly adverse parties. Standing doctrine insists that courts should not act unless there are adverse parties with the expertise, competence, and interest to litigate vigorously--generally with the expertise and interest coming from counsel. But why do we demand vigorous litigation? Not for its own sake. Presumably because it will be informative and convincing to the court; the better the vigorous presentation of evidence and arguments (by lawyers), the more it helps courts reach the "right" answer. If that is true, then the premise of Roberts' questions seems wrong.

I can understand Roberts being uncomfortable with the idea that the brilliant lawyer will win out, regardless of law or fact (recall the cynical saying that juries simply find in favor of the lawyer they like more). But Roberts seems to be going much further, saying that the manner and quality in which arguments are made does not affect how the court comes to view the law (because there is only one right answer to be mechanically found) and facts or the conclusions courts will reach. But if so, why bother having lawyers?

Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

More about the European Pharmaceutical Sector: Procedural Changes

Earlier, I described the European Commission’s recent examination of the pharmaceutical sector.  Part of the EC's inquiry focuses on procedural concerns. 

 

Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC’s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, “[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 – 2007, is estimated to exceed € 420 million, of which a significant proportion could have been saved” if a cross-border litigation system could have been enacted.

 

A separate review of the European patent system by Prof. Dietmar Harhoff, Ph.D states:

 

The results obtained here suggest that currently, between 146 and 311 infringement cases are being duplicated in the Member States. By 2013, this number is likely to increase to between 202 and 431 cases. Total private savings in 2013 would span the interval between EUR 148 and 289 million.

 

Meanwhile, it appears that the EC is rapidly moving toward a unified litigation system for all types of patents. This raises a more profound question: to what degree is a uniform litigation system desirable?

The Harnoff study considers literature studying the U.S. Court of Appeals for the Federal Circuit, which has provided a unified system for patent litigation at the appellate level since 1982.  This includes Rethinking Patent Law's Uniformity Principle, a paper by Craig Nard and John Duffy, which, as Harnoff describes "questions the values of uniformity altogether."   In their paper, Nard and Duffy point out that "uniformity is not a proxy for quality," and propose a "polycentric decisionmaking structure that would allow for a diversity of peer appellate voices to be heard."  Certainly, Nard and Duffy's proposal has been subject to debate, including an article co-authored by Lynne E. Pettigrew and the Federal Circuit's Hon. S. Jay Plager, Rethinking Patent Law's Uniformity Principle:  A Response to Nard and Duffy, 101 Nw. U. L. Rev. 1735 (2007).  It will be fascinating to see whether the EC considers these issues when contemplating these large structural changes to its system.

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Official liability for abuse of material witness warrants

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).

More Iqbal: What's a plaintiff to do?

I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service.

The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police). The anti-Bush protesters were to be pushed a block east (they actually were pushed more than two blocks away, as well as subject to some rough policing). Pro-Bush counter-protesters, who had been a block west of the inn, were not made to move.

The plaintiffs brought First Amendment claims against the two agents on the scene, the former director of the Secret Service, and the Service itself (OK, that last one just shows the plaintiffs' lawyer did not entirely know what he was doing). The basic claims were that the plaintiffs were moved because they were presenting an anti-Bush viewpoint, consistent with a sub rosa Secret Service policy of suppressing speech critical of the President.

After the jump, take a look at Iqbal in action in a fairly straightforward Bivens action. It's not pretty.

1) The court followed the two-step approach described in Iqbal: a) Disregard (or at least not accord a presumption of truth to) conclusory allegation and b) Look at the remaining allegations to determine whether they "plausibly" give rise to an entitlement to relief, purportedly by accepting them as true and according reasonable inferences in the pleader's favor.

The court thus disregarded as bald and conclusory the allegations that the on-the-scene agents acted with an impermissible viewpoint-discriminatory motive and the allegations of a discriminatory policy in the agency.

This presents the first problem for the plaintiffs: What facts can they plead as to state of mind at this point, without the benefit of discovery? How can they know what was in the agents' minds until they have had a chance to depose them?* I suppose they might use FOIA to find out about formal Service policies regarding protesters. But the allegation was about a sub rosa policy--in other words, an agency-wide custom, accepted and enforced informally, having the force of law but without being formally established. No FOIA request is going to turn that up. Perhaps allegations about other examples of Service treatment of protesters would lend factual support. But it also would require that superiors knew about those other incidents--again, impossible to allege (in an acceptably non-conclusory manner) without discovery.

2) The court then looked to the remaining allegations and (surprise!) found they did not show a plausible violation. The court considered several distinct allegations. What is noteworthy is how unwilling the court was to draw inferences from these facts in favor of plaintiffs.

a) Only the anti-Bush protesters were moved. But, the court said, the police were ordered simply to move them to a distance equidistant from the Inn as where the pro-Bush protesters already were standing. So the end result (at least of the agents' orders) was pro- and anti-Bush protesters were one block over from the Inn (on opposite sides). Two problems. One is the counter-factual--what if it had been the pro-Bush demonstrators directly in front of the Inn--would they have been moved? We don't know; but is it a reasonable inference (looked at in the light most favorable to the plaintiff) that they would not have been? The other is that the fact that we had a viewpoint-neutral outcome (everyone equidistant from the Inn) does not mean that no viewpoint discrimination occurred--anti-Bush protesters still were moved and a plausible reason is it was because they were anti-Bush protesters.

b) Relatedly, the court insists that if the real purpose of moving the protesters was to suppress the anti-Bush message, the agents would have moved them more than a block away, to where they could not be heard. Hmm; I guess the court never has heard of pretext. It seems to me it is at least potentially a violation (certainly sufficient to withstand a 12(b)(6) motion) for government officers to move a group of speakers, because of their speech, out of the best speaking position and into a lesser one. Even if they could still be heard, they are further away, cannot be seen, and their expression has less impact because of that distance.

c) Plaintiffs alleged that diners and Inn guests were permitted to remain in close proximity to the President without security screening. But, the court said, that allows no inference about the motive behind moving the anti-Bush crowd, which only can be given meaning by reference to the pro-Bush protesters, not the non-protesters in the Inn. Again, I guess the court never heard of pretext. The stated reason for moving the protesters away from in front of the Inn was to keep them out of "firearms and explosives range" of the President. But that reason is belied by the fact that people inside the Inn remained within range of the President without any screening. This at least allows the inference that the concern was not really about firearms and explosives, but something else. And this gets us back to only the anti-Bushies being moved. If the firearms concerns fall away (as plausibly suggested by the non-screening of diners), we are left with the the fact that the antis were moved and there is an inference that the stated reason was not the actual reason. If they got to the spot first, there has to be some reason for moving them. What other reason is there? It is not a legitimate (much less substantial or compelling) government interest to keep the expressive marketplace balanced by making sure both sides are a block away, so that could not be a neutral justification. If the antis got to their spot first, there must be some reason

d) Plaintiffs alleged that they were moved by local police more than a block and subject to abusive police tactics. But these allegations involve local police (who were not named as defendants) and do not mention the Secret Service or the two agents. This seems right to me.

The point of all this is to show the discretion that Iqbal gives courts to ignore the ordinary admonition to draw all inferences in favor of the non-movant/plaintiff. This is where courts really have power in the context of motions to dismiss--in the inferences they draw (or don't draw) in reviewing the complaint and deciding what is or is not plausible based on the facts pled. None of the inferences I have argued for here are essential or necessary. But the inferences I have suggested seem to make a First Amendment violation plausible--certainly enough to get by 12(b)(6). Again, we come back to the question--what more could these plaintiffs have done? And how are they ever to get their claims before a jury?

The court did grant plaintiffs leave to amend, for the stated reason that the complaint was filed prior to Twombly and Iqbal. But as courts start finding more and more complaints factually deficient under Twombly and Iqbal, this is going to become an increasingly common practice.

Interesting stuff. In addition to writing about the case, I may assign the complaint (which, at 92 paragraphs, is reasonably short) as an example for Civ Pro.

• The defendants have vigorously, and thus far successfully, resisted all discovery. This created an interesting secondary issue on appeal, regarding immediate appealability of the trial judge's decision to delay ruling on summary judgment in response to a Rule 56(f) affidavit.

Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc

Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs].  According to Easterbook, amicus briefs in support of rehearing en banc must be filed no later than the petition for rehearing itself, notwithstanding Fed. R. App. P. 29(e), which provides that “[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed.” (A deadline with which the amici in this case complied, at least vis-a-vis the petition for rehearing.) For Easterbook, the "principal brief" is not the petition for rehearing (which, he argues is not even a "brief"), but the opening merits brief of the party before a three-judge panel.

Leaving aside the expediency-based reasons that Judge Easterbook invokes to support his reading of Rule 29(e) (at least some of which strike me as easily preserved through other means), this strikes me as a ruling that is both silly and likely to cause mischief: Silly because a petition for rehearing en banc is very much a "brief," full of legal arguments for why the original panel opinion should be reconsidered by the entire court. Indeed, is a "petition for certiorari" any less a brief because it is a "a request for discretionary relief" that's not called a "brief"?

And it's likely to cause mischief because one of the central utilities of amicus briefs is to advance arguments _not_ made in the relevant filing by the party (and how could the amicus know what the party was arguing before their brief is actually filed?). Instead, Easterbrook's bizarre reading will encourage the very kind of substantive and logistical coordination between parties and their potential amici that both the FRAP and the Supreme Court's rules in various places (rightly, in my mind) attempt to discourage.

I have a great deal of respect for Chief Judge Easterbrook, but this strikes me as a very unfortunate ruling--and one that I hope his colleagues successfully persuade him to reconsider.

First Assignments

The first assignment I give in Civil Procedure is likely the first regular class assignment ever for the incoming 1Ls (one aspect of teaching an 8:30am Monday morning class!).  Although we spend most of the first class on an problem/discussion that works well, for the last few years I have also assigned Marshall v. Marshall, the Anna Nicole Smith decision in the Supreme Court.  It has become dated and a bit pathetic, given the outcome, so I'm looking for suggestions for a snazzy Civ Pro case to start the course. 

I used Marshall v. Marshall for a couple of reasons:

• It shows the messiness of cases and multiplicity of issues (sometimes missing from heavily excerpted casebook versions).  The suggestion is that the course will provide a chance to unravel the threads one by one. 

• It had a celebrity/good story hook.  This may seem like a sad bid to convince students that Civ Pro is snazzy, fun and probably the most important law school class (all true, by the way), but I want to at least convey that these issues are hotly contested and that stories about, say, elderly billionaire oil man and feuds over money are often resolved on procedural grounds.

Suggestions?

Overturning Twombly and Iqbal

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.

To Erie or Not To Erie?

I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching.

As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include?

The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice Brandeis's opinion is as important for why it might be wrong on the constitutional issues as it is for the result it produces.  And on a deeper level (and what's Federal Courts but for a whole bunch of deeper levels), Erie raises a series of interrelated and fascinating questions about the lawmaking powers of both state and federal courts (and Congress's role vis-a-vis the latter). Lastly, Erie is a great segue into federal common law in general, and the units on implied statutory and constitutional causes of action in particular.  Without Erie, those units often seem a strange and sharp break from what we've been doing up to that point in the semester.

But for as interesting as Erie is, there are at least as many reasons to leave it out: First, virtually all of my students will have encountered it in their Civil Procedure coursework as a 1L (where it arguably belongs, since it also profoundly affects tactical choices parties make in civil litigation).  Second, to do Erie "right" means also doing its successor cases (especially Hanna v. Plumer), and may also require discussion of its forerunners, especially Swift v. Tyson and Black and White Taxicab... And third, my syllabus is already quite crowded, and so the more I add about Erie, the more I have to cut from elsewhere.

I know this is a Federal Courts-specific question, but I'd love to hear what y'all think... In general, does it make sense to go back over cases like Erie in upper-level courses? Specifically, should Erie be part of the Federal Courts canon at a school where it's covered in Civil Procedure?

The Attorney-Client Privilege and the Collateral Order Doctrine

It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far.  Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term.

The issue in Mohawk Industries v. Carpenter is whether a district court decision finding waiver of the attorney-client privilege is immediately appealable under the so-called collateral order doctrine that the Supreme Court has read into 28 U.S.C. 1291 in a series of cases dating back to Cohen v. Beneficial Industrial Loan Corp.  Both the district court and the Eleventh Circuit said no, but the Court granted cert. anyway, ostensibly to resolve a circuit split that has arisen over the issue.

What's fascinating to me about this case is that I doubt it would even be an interesting question if it were any other evidentiary privilege.  It's well-established that the run of discovery orders are largely within the discretion of district courts, and are not subject to immediate appellate review except in extraordinary cases (e.g., where the discovery order raises serious separation of powers questions--and even then, only through writs of mandamus). This general rule makes sense, since litigation would be far more costly and take far more time if parties could run to the court of appeals over every little discovery ruling.

So is there a legal argument for why the attorney-client privilege is different? The American Bar Association thinks so, as it argues in its amicus brief in support of the Petitioner.  So too, the U.S. Chamber of Commerce. But I'm not so sure. Our brief, which is signed by a group of 25 former federal judges and/or senior experts on the federal courts, argues that the attorney-client privilege is not distinguishable from other comparable evidentiary protections, and that extending the collateral order doctrine to this case could therefore have disastrous consequences for the workload of the courts of appeals and for civil litigation more generally.

Leaving aside the specific doctrinal issues vis-a-vis the collateral order doctrine, I'm curious what folks think about the underlying issue, i.e., whether there's something fundamentally different about the attorney-client privilege, as compared to the work-product rule, the priest-penitent privilege, the spousal privilege, etc. Are lawyers special, in this regard?

Fun Civ Pro fact of the day

So there is a reason to watch Jeopardy other than when Paul is on: You might learn things, even about civil procedure. Yesterday, I learned that Tennessee Williams (a St. Louis native) used to work at International Shoe--according to the question (answer?), it was while working there that Williams met a man named Stanley Kowalski.

This would be a great factoid to mention in class--if I had any hope that a decent number of students would know who Williams was.

Litigating the War on Terror # 1: Telecom Immunity

Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week.

Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No. 06-1791. Judge Walker of the Northern District of California upheld the constitutionality of § 802, the telecommunications immunity provision of the FISA Amendments Act of 2008. Section 802 requires the dismissal of any lawsuits against telecom companies for their assistance in the Bush Administration's warrantless surveillance of U.S. citizens' phone calls, upon certification by the Attorney General that the telecom company had acted in support of an intelligence program and on written presidential request and assurances of the lawfulness of the warrantless surveillance, so long as the certification was supported by substantial evidence. The court dismissed (although without prejudice) all constitutional and statutory claims against the telecom companies. I previously defended the constitutionality of this provision.

The court rejected a number of due process and separation of powers arguments. Of particular interest to me was an argument based on the venerable-but-never-fully-understood United States v. Klein. The court adopted the (appropriate) view that Klein prohibits Congress from dictating legal and factual findings in a particular case or requiring resolution of particular cases in certain ways, although Congress may amend underlying substantive law and have that law applied even as to pending litigation. Judge Walker concluded, correctly, that this is what happened here. Congress amended substantive law by creating a new immunity (not an affirmative defense*) that protected the telecoms from liability for constitutional violations for acting on presidential request for a wiretap, but left it to the court to decide whether the certification was, in fact, supported by substantial evidence.

I was lead author on a scholars' amicus brief that argued that the immunity provision did not violate Klein and Judge Walker actually cited our brief at length and adopted part of our core argument. Klein (including § 802's validity under Klein) also is the subject of my current major writing project, coming soon to an SSRN mailbox and the desk of all you Law Review editors.

The closest constitutional issue was over non-delegation. Section 802 authorizes the AG to file the certificate, but it does not explicitly compel her to do so or establish any standard (discernable or otherwise) for when she should file a certification. The court ultimately rejected the non-delegation challenge for three reasons: 1) this was not an open-ended delegation of rulemaking authority to an administrative agency, but rather a narrow, focused command to an individual to take a specific, narrow action; 2) there is greater tolerance for more-open-ended delegations in national security, where there is greater legislative/executive joint action; and 3) the legislative history of § 802 gave enough content and context to guide the AG's discretion as to whether and when to certify. I do not know enough about non-delegation to opine as to how persuasive these arguments are; thoughts from readers who know this area?

The other interesting thing was that the court dismissed without prejudice. Plaintiffs represented to the court that newly disclosed documents suggested that the telecoms had engaged in warrantless wiretapping after January 7, 2007, the end point of the § 802 immunity (that is the date that Congress initially retroactively validated the wiretapping that the President had unilaterally authorized following September 11). So it may be that the plaintiffs can plead around the § 802 immunity.

* Judge Walker pointedly rejected our description of § 802 as an "affirmative defense," insisting that it is an "immunity." I am not sure there is a difference. Most immunities are affirmative defenses (although not all affirmative defenses constitute immunities), in the sense of being a legal rule outside the plaintiff's claim that bars liability on certain new facts, which must be pled and proven by the defendant (or, here, the defendant and the government). I have been arguing that telecom immunity is analogous to official immunities under § 1983 (prosecutorial, judicial, qualified), all of which are immunities that also are recognized and treated as affirmative defenses.

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.

Still more on Iqbal and Twombly

The prolific folks at Drug and Device Law responded to my post, arguing why Iqbal/Twombly is the right approach to pleading. I would respond by pointing to two points on which actually, somewhat, agree.

First, they criticize Conley for allowing plaintiffs to get away with complaints that say "Defendants violated my rights" or "Defendants injured me" or claims "an FDA violation." I agree that such complaints are insufficient. For one thing, I do not believe that a proper reading of Conley allows such complaints. And while I have no doubt that such complaints are filed all the time and some may even get passed some judges, I question whether they are the norm or whether going to the opposite extreme is the solution to such abuses. For another, there was far more to the complaints in both Twombly and (especially) Iqbal and it is not clear in that sort of case what the plaintiff possibly can do to get into discovery.

Second, they close their post with the following:

Carl Sagan once said that extraordinary claims require extraordinary proof. He should have been a lawyer. In today's legal environment, given the huge expense of discovery as a means of generating the necessary proof, at the outset extraordinary claims properly demand more rigorous pleading.

Again, I probably agree. But if we set too high a pleading hurdle, there never will be an opportunity to actually prove extraordinary (or even ordinary) claims when the proof is available only through some formal discovery process from which plaintiffs are barred when they are unable to allege facts that they cannot know or prove without discovery.

Ultimately, I think we may just have to agree to disagree as to whether the system should be skewed in favor of Type II errors (meritorious claims dismissed at the outset) over Type I error (non-meritorious claims getting into discovery). That is the bottom-line policy dispute at work here.

Discovery, burdens, risks, and Iqbal

The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here).

The point of departure between D&DL and critics of the new pleading regime (including me) ultimately comes down to placement of litigation burdens and risks.

Looser pleading recognizes that plaintiffs often lack critical information at the outset of litigation and need discovery to learn key information that shows the merit (or lack thereof) of their claim. But it burdens the defendant with costly and wide-ranging discovery. D&DL argue that Conley ceased to be workable with the broad changes to the discovery rules that began in 1966 and 1970 (the procedural flipside to my argument about the expansion of substantive federal law post-1938). Looser pleading produces so-called Type I errors--morecases get past pleading into discovery, at cost to the defendant, only to be found to lack merit.

Stricter pleading relieves defendants of the burden and expense of discovery in cases in which there likely is no there there, as indicated by the complaint. But this burdens (unfairly, in my view) the plaintiff with 1) the often-impossible task of framing a detailed complaint when she only can get the necessary evidence through discovery and 2) the risk of dismissal when she is unable to provide the necessary detail in the pleading (this is what was going on in Twombly and, potentially, Iqbal). Stricter pleading produces so-called Type II errors--potentially meritorious cases are deterred or dismissed with the plaintiff never having had a chance to fully explore the evidence in support of the claim.

So the point of departure is at the policy level. Do we prefer Type II errors imposing burdens on plaintiffs or Type I errors imposing burdens on defendants? And the answer will not be value-neutral. But the presence of a non-neutral policy question highlights two final points.

The first goes to a different aspect of the evolution of law, and thus procedure, since 1938. Seventy years ago, parties were largely interchangeable. A person or business entity was as likely to be a defendant as a plaintiff. So big business saw less of a need to push a defense-favorable view of the procedural rules, because a business might find itself as a plaintiff enjoying the benefits of notice pleading. There is far less interchangeability today--corporations and government are almost always defendants (and repeat defendants at that) who know they will almost exclusively enjoy benefits from a defense-favorable pleading regime.

The second goes to a procedural criticism of Iqbal and Twombly. To the extent the choice between the old Conley system and the new Iqbal/Twombly system is a policy determination, it should not come about through a decision in a case, but should be established through the notice-and-comment, increasingly democratized and political, Rules Enabling Act process.

Trial experience, pleading, and the Supreme Court

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.

Pleading and the evolution of federal court litigation

Some random thoughts on Iqbal and its future effects, particularly in light of the very interesting exchange that has attended this post.

First, over the weekend I finally read Richard Epstein's paper on Twombly from last spring, which was coincidental to Iqbal being released Monday. Epstein places Twombly (and we now can do the same with Iqbal) in the broader context of the evolution of federal litigation since 1938, noting the types of litigation that predominated in 1938 and the changes to litigation that have accompanied the expansion of substantive federal law.

The drafters of the original Federal Rules in 1938 primarily thought in terms of patent claims and straight-forward tort, debt, and contract actions. The sort of conclusory skeletal pleading allowed under Rule 8 (and Conley) made sense for simple claims involving one-time conduct and facts that the plaintiff likely knew (or could know) at the outset--what happened at the intersection, whether or not the debt was repaid, whether the patent was valid. Modern litigation involves more complex actions under federal antitrust, securities, and civil rights laws. Epstein argues that skeletal conclusory pleading makes less sense in these more complex modern cases--involving conduct occurring over a longer period, complex conduct that is as likely to be lawful as unlawful, and often turning on the defendant's state of mind. Skeletal pleading in these cases presents a greater risk of hindering socially beneficial conduct by tying people and entities up in burdensome and expensive discovery and litigation that ultimately will (or should) be unsuccessful.

The problem is that, from the plaintiff's standpoint, skeletal, conclusory pleading is more necessary in modern litigation because the information needed to plead essential factual details (such as state of mind or what happened in a secret closed-door meeting) is not available at the outset and may only be obtained through discovery once litigation has begun. Twombly and Iqbal both demonstrate: How can a plaintiff know whether there was a secret meeting and agreement among the telephone companies or what the AG was thinking when he approved a policy of detaining, in special conditions, Arab Muslims in the weeks after 9/11. The best he can do at this stage is a conclusory allegation. Tightening pleading keeps potentially meritorious claims out of court, in turn reducing the ability to identify and hold wrongdoers to account and to make injured persons whole.

Second and somewhat related is Bruce Boyden's argument in the earlier Comments that the Court's view of pleading in Twombly and Iqbal was "warped by concern in those cases about particularly onerous costs and burdens of discovery based on what seem to the majority to be far-fetched and meritless allegations." Both were unique "modern" cases, large in size and scope, precisely the kind that Epstein (and the Court, obviously) believe are too big and sprawling for notice pleading. But, he says, perhaps lower courts will be a bit more measured in "normal" litigation when it comes to allegations of state of mind and other "on information and belief" pleading.

Unfortunately, I think lower courts are more likely to run with the greater power to review and rethink facts as alleged. On this point, I would recommend Benjamin Spencer's recent paper (forthcoming in Mich. L. Rev.) in which he tries to construct a model to describe what pleading now requires, based on what lower courts had been doing with Twombly. Spencer argues that courts distinguish "objective facts" from "speculative suppositions" (basically what the Iqbal Court called bare or conclusory allegations) and the latter are deemed not sufficient to push neutral allegations over the line into plausibility. I expect to see courts being even more willing to disregard facts as too speculative--even though all a pleading really involves is speculation. Especially after Iqbal essentially told courts to ignore conclusory or bare allegations.

Third, there was some interesting discussion in the comments about whether the ratcheting up of federal pleading has been a top-down or bottom-up phenomenon. Hillel Levin suggests the latter: The lower courts for several years have been tightening pleading standards and, prior to Twombly, the Court had stepped in twice (Swerkiewicz and Leatherman) to say no. In Twombly and Iqbal, the Supremes switched and began encouraging courts to do more with 12(b)(6). It remains to be seen what lower courts will do now, but, again, I can see them being very receptive to more opportunities to clear docket space.

Fourth, on the subject of "good lines I wish I had thought up" and the next step for pleading: I paraphrase Hillel's proposed amended Rule 8 (from the Civ Pro ListServ): "When we gave you notice pleading, told you "short and plain statement," and gave Form 11 as an example, we really meant it."

Iqbal III: The Death of Supervisory Liability

Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.

More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.

It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.

And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.

Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.

Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.

It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.

Iqbal and the death of notice pleading: Part II

Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal:

The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint. As Scott Dodson argues here, it is problematic that the Court has reintroduced two tiers of facts (conclusory v. non-conclusory), a remnant of fact pleading (which distinguished between evidentiary and ultimate facts).

But a bigger problem is how anyone can plead defendant's state of mind anymore without avoiding such conclusory facts. This will be an issue in this case and beyond. In this case, the Supreme Court remanded to the Second Circuit to consider whether to remand to the district court to give the plaintiff a chance to replead. But what more could he say?

The majority rejected as conclusory, bare allegations that are not entitled to be taken as true for purposes of the 12(b)(6) the following allegations: 1) that Ashcroft and Mueller "'knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'”; 2) that Ashcroft was the "principal architect" of the discriminatory detention policy; and 3) that Mueller was "instrumental" in adopting and executing that policy.

As Justice Souter argued, it is not clear why these are conclusory or bare allegations (at least considered in light of the other allegations in the complaint). Nor is it clear why these were mere conclusions to be ignored while the following paragraphs were sufficient: 1) "'the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.'”; and 2) "'[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER after September 11, 2001.'” Can anyone find a principled way to determine why these are any less bare than the three paragraphs quoted above?

More problematically, even accepting the majority's determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants' thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?

This seems to leave plaintiffs in an impossible position.

Iqbal and the death of notice pleading: Part I

Having now read Iqbal, it's a doozy ("breathtaking" as one poster to the civ pro listserv put it) in many ways and in many areas of law (all of which are of interest to me). Many doctrinal points were killed off or dramatically altered today. I am going to look at them in a series of posts in the next couple of days.

First, this case killed off the principle, long repeated in notice pleading, that a court on a 12(b)(6) motion to dismiss must draw all reasonable inferences from the facts pled in favor of the plaintiff. And it partially killed off the notion of taking facts pled as true.

The majority worked in two steps. First, it decided that two key paragraphs were too conclusory (containing nothing more than "bare assertions") to be given a presumption of truth. This took out the allegations It then took the other two paragraphs and accepted them as true. But it found on its own an "obvious alternative explanation" that was a "more likely" explanation for the post-9/11 detention policies that rendered those policies not unconstitutional--namely, that the United States had been attacked by an organization led by, and composed of, Arab-Muslims, thus the detention policies were "justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts."

The whole idea of "plausibility" established in Twombly was inconsistent with the idea of drawing reasonable inferences for the plaintiff. Drawing all reasonable inferences for the plaintiff means that if allegations taken as true reasonably could go either way, the court should adopt the plaintiff-favorable version and let a jury decide. Plausibility does the opposite--if facts could go either way and there is a lawful explanation for the behavior, the complaint is insufficient. Thus, in Twombly, where the parallel conduct alleged might be consistent with lawful activity or might be unlawful under the antitrust laws (when combined with agreement and intent), the mere allegation of parallel conduct was insufficient because the claim was not plausible. Ben Spencer described these as "neutral" allegations that are insufficient to state a claim under Twombly.

Iqbal takes that to a new level. The majority went out of its way to find a lawful explanation that was, in fact, inconsistent with what was pled. This was one of Justice Souter's key points in dissent: Taking all the allegations made, the plaintiff alleged that he had been arrested and uniquely detained because of his race, religion, and national original. There is no way, if those allegations are true, that the plaintiff's rights were not violated. But the majority ignored what was pled and simply explained away the policy.

The majority then concluded that its explanation for the detention policies was "more likely," thus rendering the alternative explanation (a constitutional violation) not plausible and not sufficient to state a claim. Of course, the evaluation of facts as more or less likely (such as the explanation for a policy decision and resulting governmental conduct) really ought to be for a jury. So Iqbal, even more than Twombly, Suja Thomas' arguments that 12(b)(6), as now understood, invades the jury's fact-finding provenance, in violation of the Seventh Amendment, is beginning to look very strong.

SCOTUS decides Iqbal

One of this term's cases that I have been waiting for came down today: Ashcroft v. Iqbal, a 5-4 decision in which the Court held that the plaintiffs, post-9/11 detainees, did not sufficiently plead a Bivens claim against several high-ranking executive branch official. Justice Kennedy wrote for five, with Souter and Breyer writing dissents.

A very quick perusal of the syllabus suggests that the Court did three major things on notice pleading: 1) reaffirmed the "plausibility" principle of Bell Atlantic v. Twombly; 2) made clear that Twombly is the new standard for notice pleading as to all claims; and 3) made clear that conclusory allegations (as opposed to well-pleaded facts) are not entitled to a presumption of truth on a 12(b)(6). The Court also had something to say about the immediate appealability of qualified immunity determinations.

I will write more once I have a chance to read and digest the opinion. So much for grading . . .

Forgetting Erie

When I was in law school in the early/mid-1990s, there were two civ pro professors teaching sections of a one-semester, four-hour course. And it was legend that one of them always taught Erie and the other did not. In fact, the failure of the latter to do so was a frequent topic for the annual student revue. A typical skit:

Student: Professor, I would like to meet with you before I go home for break. "Professor": Oh, where is home? Student: Erie, Pennsylvania. "Professor": Erie? Never heard of it!

I am becoming that professor (fortunately, we have no student revue that could lampoon me for it--or for anything else). For the second straight time teaching a one-semester, four-hour civ pro class at FIU (not counting my year at SLU, where civ pro is a five-hour course), I will not get to Erie. And this is disappointing, both because I consider it important and it is probably my favorite subject (along with subject matter jurisdiction) in the class. As it stands, I have roughly 10 hours of class time left in which to do a quick subject-matter jurisdiction review, then cover personal jurisdiction and venue.

I honestly have no idea how to remedy this. I am fairly sure that I have cut everything as far down as possible, in terms of time and coverage. We spent only three classes/four hours on Discovery and one class on Rule 11. We spent a lot of time on pleading standards (about 4 classes/5 hours); but that much time is unavoidable as we try to figure out what to do about Twombly and the looming Iqbal and as I have tried to respond to demands for more practical discussions by incorporating sample problems into class discussions. Subject matter jurisdiction probably has taken longer than it should, but again, we need to spend time making heads or tails out of an incomprehensible recent supplemental jurisdiction decision.

Perhaps I am making the wrong choices in the depth v. breadth debate. But it seems to me that coverage of one topic must be sufficient to make it coherent and to give students a sufficient base of knowledge. You can't simply refer to joinder in explaining pleading--you also have to spend some time with the basic joinder rules; you can't teach supplemental jurisdiction without teaching the exception in § 1367(b), which is confusing. Actually, the one time I tried to gloss over joinder, I kept getting questions from students who, armed with Glannon's or some other study guide, wanted to know more than I had planned to cover.

My conclusion is I need five hours (or at least 4 1/2 hours) of civ pro. That pretty clearly is not going to happen, both because of the legal-academic trends and because prawfs in every other 1L subject could tick-off a list similar to mine. So I continue searching for some other solution.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Erie meets the First Amendment

The Maryland Court of Appeals last month established a standard for when a defamation plaintiff suing an anonymous on-line poster can enforce a subpoena against the non-party ISP to obtain the identities of the anonymous speakers. Commentary on the case here.

The court thoroughly discussed the standards that various state and federal courts have adopted for when such a subpoena should be enforced, ultimately adopting a three-part test: 1) the plaintiff must attempt to give notice to the Doe defendants that a court order has been sought to obtain the Doe identities and await a possible response; 2) the plaintiff must identify the precise statements alleged to be defamatory; 3) the plaintiff must make a prima facie showing of defamation; and 4) the court must balance the anonymous poster's First Amendment interests in anonymous speech with the strength of that prima facie case. The court was trying to balance First Amendment concerns inherent in such discovery efforts, a problem that arises primarily in defamation cases (which tend to arise in state court), but also could come up in copyright cases (which are brought exclusively in federal court).

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard? Are these standards part of substantive state defamation law, where a federal court must follow state law? Or do they reflect an interpretation of the federal Constitution, which state and federal courts are equally competent to interpret? Or is it an interpretation of the procedural rules governing subpoenas, in which case federal courts interpret and apply one set of rules and state courts interpret and apply a different set?

Thoughts?

Anti-suit Injunctions and Duplicative Foreign Proceedings

Lots has been written about globalization and transnational litigation.  One of the results of the increased number of transnational/cross-border actions -- that has not been written about so extensively -- is the larger number of parallel proceedings that potentially exist (i.e., duplicative, concurrent actions pending in different countries at the same time).  In the U.S., the issue has not been carefully examined, and, with some exceptions, little has been written on the topic by legal scholars. I posted on this topic during my last guest stint at Prawfs Blawg, and I thought I would do so again.  Although the issue is only just starting to get attention in the U.S., outside the U.S. the issue of parallel proceedings is a hot topic.

Last month, two significant decisions were handed down that relate to the problem of parallel proceedings.  The first was from the European Court of Justice in the West Tankers case.  The ECJ issued a decision that anti-suit injunctions may not be brought to restrain court proceedings in another EU member state, even if the proceedings are brought allegedly in breach of an arbitration agreement (summary of decision here).  An anti suit injunction is a court order that attempts to prevent an opposing party from continuing a proceeding in another jurisdiction. If the opposing party contravenes the order, the court may find the party guilty of contempt. The use of anti suit injunctions are highly controversial, and once used quite commonly in the U.S. The underlying rationale of the ECJ's decision is that each European state must respect the procedures of the courts of other member states.  This is big decision that has sparked lots of controversy.  The Conflict of Laws blog held a wonderful online symposium on the case that's well worth taking a look at.

The second decision (also handed down last month) was from the Supreme Court of Canada in the Teck Cominco v. Lloyd 's Underwriters case. In that case, the issue was whether a British Columbia court should decline jurisdiction and stay its proceedings pending resolution of a parallel and previously filed U.S. action (pending in federal district court in Washington State).  The court's decision held that the trial court correctly refused to stay the Canadian action, and in doing so approved using the doctrine of forum non conveniens to determine whether a stay would be appropriate.  Unlike in the U.S., the Canadian doctrine of forum non conveniens now seems to be used to determine not whether the forum is appropriate, but whether the forum is the most appropriate forum.  The Court seemed little bothered by the costs and waste associated with the duplicative proceedings. The Canadian Business Law Journal (from the U. of Toronto) has dedicated a special issue to the case, which should be in print soon.  Contributors include Joost Blom, Janet Walker, Vaughan Black, and John Swan -- all leading Canadian conflicts scholars.

Both cases have important implications for forum shopping and transnational litigation in general.  To date, the U.S. Supreme Court has yet to grapple with the issue directly. One suspects it can only be a matter of time: currently, U.S. courts apply at least three different approaches when addressing the issue of parallel foreign proceedings.  Unfortunately, the three approaches are doctrinally confused and inconsistent.  Part of the problem is that all three approaches are derived from domestic law theories, without any serious consideration as to whether domestic translate well into the the transnational or international context. The issue of how to handle duplicative foreign proceedings is important because battling on two fronts can be incredibly costly and wasteful. As transnational litigation becomes more common, having the same lawsuit pending in two countries may become not only more common but also part of a defense strategy.

If you're interested in more on this topic, I've written a short article on the topic titled Duplicative Foreign Proceedings (a draft is posted on SSRN).  It's still a draft, so comments would be welcome.  I am embarassed to say I don't have a theme song for it (didn't realize that was the new trend in the law).  I better talk to Jay....

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

They found a plaintiff and it still didn't work

During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds. Heading the charge was a lawyer in Pennsylvania named Philip Berg, who was the named plaintiff in an unsuccessful action in the Eastern District of Pennsylvania that drew a lengthy, careful opinion denying standing. It seems that Berg, along with an Arizona attorney named Lawrence Joyce, have been behind the scenes for other, similarly unsuccessful claims.

One question at the time was how anyone could have standing, given the undifferentiated interests at stake--my argument was no one would have standing. Guess I was wrong.

In a decision last week, Judge Robertson of the District of the District of Columbia held that Gregory Hollister did have standing. Hollister is a former Air Force officer who claims that, because he could be called back to active duty and because he owes a duty of fealty to the Commander-in-Chief, he needs to be certain that Obama is a properly eligible President whose orders must be obeyed. Hollister asked the court to treat this as an interpleader action (an action in which a stakeholder facing multiple competing claims deposits the stake with the court for resolution of the competing claims). The argument was that Hollister's potential military duties to obey orders were a valuable res that could be "deposited" with the court for a determination as to where (or with whom) those duties lay.

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

Three things I liked about the decision. First, although the court found the claim frivolous, it nonetheless found jurisdiction and rejected the claim on the merits, rather than (as too many courts do) holding that frivolousness deprived the court of jurisdiction.

Second, the court issued an order requiring attorney-of-record John D. Hemenway to show cause why he should not be sanctioned under Rule 11 for filing a claim for an improper purpose and for filing a claim not warranted by existing law. Although I generally am not a big fan of Rule 11 sanctioning activity, especially against civil rights and constitutional plaintiffs, at some point courts need to try to deter politically-motivated-but-obviously-legally-defective lawsuits such as this one. I was surprised not to see a move for sanctions against Berg in his initial suit, given that the lack of standing should have been obvious to anyone who has taken Fed Courts. Maybe this will put an end to this nonsense (at least until 2012).

Third, it is notable that the court aimed its sanctions at the Hemenway (a member of the D.D.C. bar), but not at Berg or Joyce. Although both are lawyers and both signed filings in the case, neither was admitted pro hac vice. The court said that "[t]hey are agents provocateurs –- and any attempt to sanction them for misuse of the public and private resources that have had to be devoted to this case would only give them a forum to continue their provocation." In contrast, the court went after the attorney they needed to get into court, thus (hopefully) deterring members of the Bar who would like to keep their reputations from taking on cases such as this. We only can hope.

Taking stock mid-semester

Last Friday, I held "Light Bulb Day" in civ pro. That is when I sum up and (hopefully) bring together all of pleading by talking and walking the class through the first phase of a civil action, from the filing of the complaint until the pleadings are "closed." This is something I did by request the first time I taught civ pro (at Florida State) and I have continued to do it, even making it an explicit part of the syllabus. It is the forest-and-trees point. Pleading involves so many discrete pieces (trees) that must be taught individually and not necessarily in chronological order; LBD is the point that I fully explain the forest.

It also marks something of a mid-point of a semester in which I tried to do some different things (my approach to civ pro, in terms of coverage and order of coverage, changes more than for any other course I teach). So it is worth pausing to reflect.

1) The laptop ban is going better than I hoped. I look at it much as I look at my iPhone: Why did I wait so long and what did I ever do without it? I never realized how much I missed eye contact. Even the bored and checked-out students at least look up at me. And when students have to look up, you can get a sense from their eyes as to whether they are "getting" what you were talking about and adjust accordingly. I also never realized how loud keyboards are when 75 students are typing simultaneously.

The students seem OK with the policy, although I will not know that for sure until I see the evals at the end of the semester. Interestingly, virtually all of them use laptops in their other classes. Which tells me that my banning laptops is not having any broader pedagogical effect of showing them the wisdom and benefits of laptop-free note taking. It has only the narrower (but still positive) effect of making my class function better.

2) I gave them four sample complaints from well-known cases, to illustrate the form and structure of pleadings and the form that a lawsuit takes. I think four is too many and two of them (from Iqbal v. Ashcroft and from the telecom wiretap suits) were too long and complicated to be fully useful. I need fewer and better examples next year.

3) My new order of covering pleading went well, I think. We covered the basics of the complaint other than notice v. fact pleading (number paragraphs, etc.), joinder, and Rule 11. We then talked about Rule 12 motions, especially 12(b)(6). We then came back to the central question of the level of detail necessary for a complaint under Rule 8(a)(2) and 9(b), tracing the evolution of pleading from Conley to Rule 9(b) to Twombly (and perhaps to Iqbal, a Bivens claim that could further re-define notice pleading.

Two benefits to this. First, it seemed that by the time we got to the "how much detail in notice pleading" question, the students understood the overall stylistic and structural concerns of a complaint and the process for putting the suit together. Now they were ready to consider how much information they had to include to put together a successful complaint. Second, it allowed me to proceed in order, rather than breaking it up.

4) I think I need to add a short reading assignment and a ten-minute lecture on claim preclusion (res judicata) as part of pleading. I do not have time to cover res judicata in only four hours, but I think the basics are necessary to help them understand how to frame a complaint and the claims they want to bring. One student asked a question after class the other day demonstrating that he had made the link between preclusion and joinder of claims under Rule 18(a). I think I need to teach that more clearly for all.

5) I now am in the middle of what probably will turn out to be 2+ days on Discovery, basically doing straight lecture providing very broad overview of what the rules and issues are, without much normative discussion. Discovery presents a paradox: On one hand, it is the most important part of the course because it so dominates the pre-trial process; on the other hand, I have found it very difficult to teach in a classroom environment following my usual approach. I decided that the purpose of this section should be to give them enough to understand summary judgment (which depends entirely on what turns up in discovery) and a basic familiarity with the rules and concepts they will face in pre-trial practice, clinic, and the real world.

CALI has some on-line exercises that I did not have time to prepare for this semester. The solution may be to incorporate those into this part, so their working through those practice problems supplements the lecture. But that is a change for next year.

6) The first of two in-semester, 500-word essays will be distributed this week and due the following week. Having to grade 135 redundant essays will not make for a fun spring break, unless the essays turn out to be pretty good. But this frees me up to do a broader, greater-coverage multiple choice/short-answer final. I never have done in-semester writing assignments before, so we will see how it goes.

I'm leaving (Texas) today . . . New York, New York

A year and a day after the suit was removed to federal court, Judge Ellison of the United States District Court for the Southern District of Texas has dismissed the main chunk of Roger Clemens' defamation action against former trainer Brian McNamee. The suit contained three claims, arising from statements made: 1) to the Mitchell Commission; 2) to SI reporter Jon Heyman; and 3) to Andy Pettitte. The first two claims were based on statements made in New York about conduct occurring in New York and Toronto (and not Texas). Any action on these claims must be brought in New York.

The order is here: Download Clemens_v._McNamee. A few thoughts after a quick read:

1) The personal jurisdiction analysis as to the Mitchell Commission and Sports Illustrated claims takes a very narrow approach to Calder v. Jones, which is not necessarily a bad thing. The court took the requirement that the defendant's contacts be directed towards the forum to be about more than the plaintiff's home state and whether the story was published in the state; much depended on the locus of the comments and the events described in the comments, which meant New York (and certainly not Texas). I do wonder about the decision as to the statements made to SI. He was speaking to a national magazine with a substantial circulation in Texas, so McNamee surely knew that his statements about a Texan would be heard and would sting in Texas. It is hard to think that his statements were not "directed to" Texas.

2) I wonder if Clemens is going to stick with his claim based on the statements to Pettitte. It is properly in Texas and it survived summary judgment on a statute of limitations defense, but the court held that the claim as stated is not libel per se, thus Clemens had to plead actual damages, which he was granted leave to do. But given that he is going to bring the big claims (the statements to Mitchell and SI) in New York, he probably will bring the whole thing there.

3) A couple of things for my civ pro teaching purposes: Including a nice explanation of converting motions to dismiss into motions for summary judgment and a largely unexplained demand for more (and more specific) facts in the complaint, namely facts showing actual damages on the defamation per quod allegations.

Finally, I have gotten several e-mails and comments from Columbia 1Ls who had Jack Greenberg for civ pro in the fall and dealt with this case on the final exam, with an Erie issue thrown in. Any Greenberg students out there who can tell me what the Erie issue was?

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

• Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.