Friday, June 14, 2013
JOTWELL: Leong on Levy on judicial allocation of timeThe new essay on JOTWELL's Courts Law is by Nancy Leong, reviewing Marin Levy's Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, which considers some oft-criticized appellate review processes (staff attorneys, unpublished opinions) in light of resource allocation, considering judicial time as one such resource. The review and the article are both worth a look.
Wednesday, June 12, 2013
A tale of two pleadings
Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.
It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.
This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.
My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.
2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.
And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.
3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).
4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?
Wednesday, May 22, 2013
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
JOTWELL: Coleman on Hoffman on federal rulemakingThe latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Thursday, May 09, 2013
Sports, video, and procedural rules
1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.
2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.
Wednesday, May 01, 2013
What subjects do students choose to write about?
In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).
Do those selections surprise?
JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriaeThe new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.
Tuesday, April 30, 2013
Pennoyer = Lochner?
I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.
So, Pennoyer = Lochner? Discuss.
Monday, April 29, 2013
Why I Decided to Construct a Free Online Casebook Available to Anyone for Civ Pro Using the H20 Platform
One of the nice things about tenure is that it frees you up to to do things you know are good for the world but may not be adequately valued in the tenure process. This summer I will embark on one such project, building a free online casebook for Civ Pro. I will be using the Harvard Berkman Center H20 "hack the casebook" platform. This great platform allows you to create "playlists" of cases and other materials that can be "remixed" by others, added to, etc. The initial goal of the project is to create a completely free H20 platform casebook for each of the firsy year classes, and I have stepped up to do Civ Pro.
Let me tell you a little bit about why I chose to do this because it may encourage others to join this great project or ones like it.
First, like others, I am shocked at how expensive textbooks have become for doctrinal 1L course. I realized that together my casebook and supplement (including the FRCP, major statutesm, etc) would cost my students $243 a piece and thus providing them with free materials would save at least $19,000 among my own students for next year. When multiplied over several years, as well as the possibility that other faculty would adopt this textbook and save their students money, this just seemed like a value creating proposition.In a time when students across the U.S. are struggling with the high price of legal education, I felt I should do what I could here.
Second, most of the materials I teach in my Civ Pro class are major Supreme Court cases (with a few Circuit and state court cases) that could be easily found and edited in public domain format, which the H20 platform makes easy. Just because of the way I teach my own course and the textbook I was using, I was already not assigning many of the notes that followed the cases and I was supplementing the book with additional materials (some written up by myself) so that the value the casebook was offering to my course that could not be found in the public domain was lessened. To be sure, I will still have to replace introductory sections of various parts of the book with my own write-ups as well as do editing of all the versions of the cases I will still use -- no small amount of effort -- but I might have felt differently about undertaking this if my casebook was doing more original work for me in the way I taught my course.
Third (and here I am purposefully not being specific and naming the casebook in question because, for all I know, all Casebooks in the field are similar in this regard): my casebook is more than 1200 pages long. I estimate that I use only about 300-450 of those pages in a 4 credit introductory course. It does have a compact addition for shorter courses, but unfortunately what it chooses to keep versus discard is not a good fit for what I use from the book. Before I decided to do the H20 version myself, I called the publisher of my casebook to see if I could "buy by the page" for the pages I actually use, a practice that some textbooks allow you to do. I was told I could not. Given that they have gone to the trouble of creating a "condensed" version I do not blame the authors/publishers, but this was the last straw for me in deciding to go it on my own.
This summer, along with my RAs, will be spent doing a beta version of the free H20 Casebook for Civ Pro that I will test out with my incoming 1Ls in the fall. I am incredibly grateful to Harvard Law School for allowing me to use my time (and RA time) for this project whose value will hopefully be externalized. I am particularly grateful to my dean, Martha Minow, since she is herself the co-author of a Civ Pro textbook (not the one I had been using), so she is basically authorizing the law school to fund a project that may cut into her own sales. She's just that kind of classy person! The beta version will be kept internal to my students for the fall, but if all goes well I hope to share it with the world in 2014 and perhaps others will want to adopt it.
- I. Glenn Cohen
Thursday, April 18, 2013
Jurisdiction (of every shape and kind), Merits, and Kiobel
SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.
The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.
But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:
The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.
In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.
Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).
The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.
Tuesday, April 16, 2013
CFP: Sixth Annual Junior Faculty Fed Courts Workshop
Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Courts Workshop on October 4-5, 2013. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars will be announced shortly.
The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, Civil Procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 3, then panels on Friday, October 4 and Saturday, October 5. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Brooklyn Law School will provide all meals for those attending the workshop, including a welcome dinner on Thursday and a reception on Friday.
Those wishing to present a paper must submit an Abstract by June 16, 2013. Papers will be selected by a committee of past participants; presenters will be notified by early July. Those planning to attend must register by August 26, 2013.
We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at email@example.com.
In the meantime, please save the dates of October 4-5.
Monday, April 15, 2013
JOTWELL: Mullenix on Sachs on personal jurisdictionThe new essay for JOTWELL's Courts Law has been posted: Linda Mullenix (Texas) reviews Stephen Sachs How Congress Should Fix Personal Jurisdiction, which argues that personal jurisdiction is a mess and only Congress can fix it.
Saturday, April 13, 2013
How do you know your exam is ready?
A while back, someone asked when and how you know an article is ready to be sent out. Well, that question also can be asked about exams. I find myself reviewing and re-reviewing and re-re-reviewing my Civ Pro exam, making sure every word is precisely correct and making largely cosmetic changes (changing "this" to "that", etc.), almost certainly to the point of diminishing returns. In other words, the same thing I do in the closing stages of an article.
Sunday, March 24, 2013
Anderson Cooper has standing
For those of you who missed 6o Minutes tonight:
Tuesday, March 12, 2013
Oddball SCOTUS Cases
The purpose of this post is to crowdsource an issue that Suja Thomas has identified.
I got the idea from seeing Suja’s presentation at AALS this year, in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts. She has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making legal changes in these types of cases. During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.
An example is ATT Mobility v. Concepción, in which the Court enforced a class-action waiver in a consumer arbitration agreement. The arbitration agreement at issue in Concepción strongly favored the consumer – for example, it included a provision (added by AT&T after the Concepcións had filed suit) requiring AT&T to pay $7500 to a consumer if an arbitrator awarded the consumer an amount greater than AT&T’s largest settlement offer at the time of arbitrator selection. Anyone even vaguely familiar with consumer arbitration knows that 99.99% of the time they skew very strongly in favor of the company – not the consumer.
Had the Court enforced a class-action waiver in the far-more-typical consumer-arbitration factual scenario in which the prohibition of a class action makes it impossible for consumers to individually advance their low-dollar claims, the Court would have invited a political (perhaps Congressional) backlash. But by choosing for certiorari that one-in-a-million case in which the class-action waiver favored the consumer, the Court was able to create a broadly applicable legal rule permitting companies to prohibit class actions in all arbitration agreements.
My new article argues that the Supreme Court recently has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. See Oddball Arbitration. My question for Prawfsblawg readers is: do you see Thomas’s Oddball Doctrine in other areas of the law?
Thursday, February 28, 2013
Still more on judicial language
Picking up on Bill's thread on judicial language comes this from Aaron Caplan (Loyola-LA): In his opinion for the Court in Scott v. Harris (dealing with summary judgment in a § 1983 action resulting from a high-speed chase that was video-recorded), Justice Scalia repeatedly referred to Harris as "respondent" while referring to Deputy Scott by name. This included six times in which Scalia quoted either from the lower-court decision or from Justice Stevens' dissent and went out of his way to replace Harris' name with [respondent].
What should we draw from that--whether about judicial decision making, judicial writing, legal writing, Justice Scalia, or anything else? And is it worth talking about in class and, if so, how? Aaron posed the latter question to the Civ Pro Prof listserv, in anticipation of teaching Scott. I just finished it today, but am going to point this out to my students on the course blog.
Wednesday, February 27, 2013
Lyons, Clapper, and types of constitutional challenges
In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.
This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.
Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.
Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.
Tuesday, February 26, 2013
So much for unanimity
Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.
The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.
Monday, February 25, 2013
More jurisdiction from SCOTUS
SCOTUS last week decided two of the jurisdiction/procedure/Fed Courts cases on this term's docket. In Gunn v. Minton, the Court unanimously held that a legal malpractice claim derived from a patent dispute does not “arise under” federal law so as to vest exclusive jurisdiction in federal court. In Chafin v. Chafin, the Court unanimously held that an action under the Hague Convention on the Civil Aspects of International Child Abduction does not become moot when the child is returned to her country of habitual residence while an appeal is pending.
A few random thoughts on the cases after the jump.1) These cases, along with last month’s Already LLC v. Nike, Inc. (a defendant's voluntary cessation through a covenant not to sue renders a case moot), continue the Roberts Court’s interest in procedure and jurisdiction. Interestingly, Chief Justice Roberts kept all three opinions for himself; he did not assign them to either of the former civ pro professors, nor to the former district judge with ground-level civ pro experience. Perhaps Roberts himself is driving this civ pro revival. And as with most of this run of civ pro cases (Iqbal and Wal-Mart being glaring exceptions), all three decisions were unanimous (Already included a short concurrence from Kennedy, Thomas, Alito, and Sotomayor, warning lower courts about the narrowness of the Court's decision).
2) Gunn does a very nice job of explaining the two situations in which a case arises under federal law. In describing the core "rule of inclusion" that "accounts for the vast bulk of suits that arise under" (federal law creates the cause of action), the Court cites American Well Works (the original opinion by Justice Holmes) rather than the Court’s more recent statement in last term’s Mims v. Arrow Fin. Servs. This is surprising because Mims appeared to elaborate and expand on the Holmes test, looking not only to the source of the cause of action but also to the source of the rule of decision (or right) asserted. (Lou Mulligan wrote a great analysis of Mims). Not sure if this reflects a backing away from the more-elaborate statement of the standard in Mims or just invocation of the “Cite Holmes Whenever Possible” Principle.
3) Gunn also does a good job of turning Grable & Sons Metal Prods. v. Darue Engineering into a clean four-part test for analyzing when state claims with embedded federal issues arise under. At the same time, it seems to modify the third prong, which requires the federal issue be “substantial.” While this could have meant substantial within the case (that is, an important aspect of the case or important to the parties), Gunn insists that it means substantial to federal law and the federal judicial system as a whole. Thus, while the validity of the notice provided by the IRS in enforcing a tax lien (the embedded issue in Grable & Sons) was substantial in that it broadly affected the government’s ability to recover delinquent taxes, a patent issue buried as a “case-within-a-case” in a backward-looking claim for damages is not substantial because it does not effect federal patent law or the work of federal courts at a systemic level.
This form of substantiality in turn overlaps with and affects the fourth prong of the analysis--whether the congressionally approved balance of caseloads would be altered by allowing this class of case into federal court. Because the federal issue is not substantial, keeping it in state court is plainly not inconsistent with that balance--end of analysis.
4) Gunn did not discuss one other unique aspect of this case--whether the exclusivity of patent jurisdiction affects the fourth-prong of Grable. Federal jurisdiction in patent cases is exclusive. Thus, holding that these cases arise under federal law not only allows them to be filed in federal court and gives the parties a choice of forum, it requires them to be filed in federal court and eliminates state courts as an available. Thus the "balance" question looks very different--it is not only about creating an additional forum, it is about stripping state courts of jurisdiction. But because the balance question was largely resolved by the substantiality question, the Court did not have to consider this.
5) Chafin and Already appear to be good teaching cases on mootness. Both demonstrate the links between mootness and other doctrines. Already shows how standing and mootness interact. In arguing that the case was not moot, Already tried to identify harms that it continued to suffer despite the covenant not to sue; the Court insisted that none of these harms could establish Article III standing in the first place and therefore could not demonstrate a continuing controversy to overcome mootness.
Chafin discusses the difference between mootness and merits and explicitly seeks to maintain a line between them (an effort I always appreciate from the Court). The district court held that Scotland (where the child had lived with her British mother) was her country of habitual residence; the mother moved back there with her daughter while the appeal was pending (after the district court refused to stay the case pending appeal). The mother tried to show mootness by arguing that even if the court of appeals reversed, the district court could not issue a "re-return" order under the Convention, Scottish courts would ignore the re-return order, or she was not subject to enforcement of that order in Scotland. But the Court insisted this "confuses mootness with merits"--the utlimate legal availability or effectiveness of relief are not pertinent to the mootness inquiry. This principle holds at least so long as the merits arguments are not "so implausible that it is insufficient to preserve jurisdiction," a reservation I could have done without, as it leaves a glimmer of merits defects limiting jurisdiction. Still, I was pleased to see the Court sharply rejecting merits-based arguments against jurisdiction.
6) Roberts throws into each of these opinions one or two pithy turns of phrase--metaphors, cultural references, etc. In Already, rejecting the argument that Already might make a new, potentially infringing shoe not covered by the covenant, Roberts said such a shoe "sits, as far as we can tell, on a shelf between Dorothy's ruby slippers and Perseus's winged sandals." In Gunn, in pointing out that it was not creating embedded-issue doctrine on a blank canvas, he said "[u]nfortunately, the canvas looks like one that Jackson Pollock got to first." There was less of this in Chafin (perhaps because a cross-border child-custody dispute invites more judicial seriousness than an intellectual property fight), although at one point he said that the case was not moot because "[n]o law of physics" prevents the child's return from Scotland if the district court orders it and the mother complies. Roberts obviously is trying to be an engaging writer (in cases that most observers may not find engaging). Does it work? Or does it just come across as snarky and distracting?
7) We still are waiting for the Court's other big jurisdiction case, Kiobel v. Royal Dutch Petroleum, which was the first case argued this term. Obviously there is going to be a dissent and perhaps multiple opinions in the case, hence the delay. What remains to be seen is whether the division on the Court is about the jurisdictionality of corporate liability under the ATS or just about corporate liability generally.
Thursday, February 21, 2013
Standing Humor(H/T: One of my 1L Civ Pro Students)
Monday, February 11, 2013
In Memoriam, Daniel MeadorDaniel Meador, a leading Civ Pro and Fed Courts scholar, died last weekend at 86. As an assistant attorney general in the Carter Administration, Meador helped organize DOJ's Office for Improvements in the Administration of Justice, which, among other things, proposed what became the Court of Appeals for the Federal Circuit (which combined the U.S. Court of Claims with the U.S. Court of Customs and Patent Appeals). I especially liked an article Meador wrote in 1983 in Maryland Law Review, arguing for greater use of oral argument and oral engagement in the appellate process.
Thursday, January 31, 2013
Erieblogging: The Final Day
Well, I said I was going to post an un- or underexplored question about Erie every day for the month, and that is what I did, as andy-kaufmanesque as the results may have been. People sometimes ask me how I can write so much on Erie (I’m at five articles and have a few more in the works). It may be myopia, but to me the topics of my papers are as different from one another as contract and tort. There isn’t really one Erie doctrine—“Erie” is a code word for a huge set of heterogeneous constitutional and subconstitutional problems that arise from the existence of federal courts (especially federal trial courts) within our federal legal system. That, at any rate, is what I’ve tried to show.
As for my final question, it is this: What can other federal legal systems with federal courts tell us about Erie? Australia, for example, has a federal legal system, federal courts, and even diversity jurisdiction. But things, I am told, look very different (and more Swiftian) down under.(Parallel posted on Michael Green's Civ Pro Blog.)
Wednesday, January 30, 2013
Erieblogging: Day Thirty
My penultimate Erie question is about the District of Columbia. I’m not concerned here with the puzzle of how Congress can send a state law cause of action between a citizen of a state and a citizen of the District to federal court, given it is not a controversy between “citizens of different states" under Article III.
My question is about the fact that "federal" courts (including the District Court for the District of the District of Columbia, the D.C. Circuit and the Supreme Court) defer to the "state" supreme court, the D.C. Court of Appeals, concerning D.C. law, as if Erie applied here. But that's nonsense: D.C. is a federal enclave and the "state" supreme court is itself a federal court.
D.C. has its own common law (often borrowed from Maryland common law). This is a body of federal common law for the District, which, prior to 1970, was developed by federal courts. Why then aren’t federal courts still interpreters of D.C. common law? Furthermore, much D.C. statutory law consists of Acts of Congress, and even acts of the D.C. government are the exercise of delegated congressional authority. So why don’t federal courts have interpretive authority over D.C. statutory law?
The argument for deference is the District of Columbia Court Reform Act of 1970, which intended to make the D.C. Court of Appeals the equivalent of a state supreme court. I question whether Congress really could make the U.S. Supreme Court defer to another federal court concerning the content of federal law. But setting the Supreme Court aside, this isn’t really Erie were talking about here, right? This is some fake federal statutory equivalent of Erie. Shouldn't that matter?(Parallel posted on Michael Green's Civ Pro Blog.)
Tuesday, January 29, 2013
Erieblogging: Day Twenty-Nine
My Erie question for the day is still about relatively unguided Erie choices, that is, cases in which a procedural matter faced by a federal court sitting in diversity (or supplemental jurisdiction - or bankruptcy? or CAFA? or statutory interpleader?) is not covered by federal enacted law (such as a federal statute or a Fed. R. Civ. P.). My question is this: What is the grand unified theory?
A federal court facing such a case is supposed to balance the twin aims (whatever those are), which recommend borrowing the rules that would be used by a forum state court, against countervailing federal interests (whatever those are), which argue in favor of a uniform federal common law rule - while taking into account states' interests in their rules applying in federal court (which states? what types of interests? how can we tell if they exist?). Today's question is what happens when you put all of these in the hopper. How is a decision produced? What is the balancing theory (if balancing is what is going on)? What is the grand unified theory?
Two more days. Tomorrow: Erie in DC. The final day: What we can learn about Erie from the courts of other nations with federal systems.
(Parallel posted on Michael Green's Civ Pro Blog.)
Monday, January 28, 2013
Erieblogging: Day Twenty-Eight
Today’s Erie question is about “countervailing federal interests.” Assume that a procedural matter faced by a federal court sitting in diversity is not covered by federal enacted law (that is, a federal statute or a Fed. R. Civ. P). That puts us in “relatively unguided Erie” territory. Assume as well that the relevant state supreme court would not say that a state rule on the matter follows the state law cause of action upon which the plaintiff sues into federal court. That gets us out of Byrd’s “bound up” test. If so, whether the federal court should use a uniform federal common law rule or borrow the rule that would be used by a forum state court comes down to two sets of considerations – the twin aims of Erie (which argue for borrowing) and countervailing federal interests in favor of using a uniform federal common law rule.
My students usually have pretty good idea how to apply the twin aims (or at least the forum shopping part) and sometimes even have intuitions about whether a rule is bound up with the cause of action. What they have the most difficulty with is identifying countervailing federal interests. Consider whether a federal court can apply a uniform federal common law time limit to state law actions – maybe a flexible approach like laches (which was what was at issue in Guaranty Trust v. York). There would obviously be vertical forum shopping as a result. But why aren’t there countervailing federal interests in favor of the flexible federal rule? No one, to my knowledge, has a good theory about why not.
With an expansive view of countervailing federal interests, the twin aims are toothless. There needs to be some restriction on identifying such interests. The restriction cannot be that countervailing federal interests must be grounded in federal enacted law. Granted, such an approach would make some sense. The twin aims are apparently a congressional restriction on federal courts’ power over federal procedural common law in diversity cases. This restriction arguably can be lifted only by another congressional command. The problem is that federal courts commonly find countervailing federal interests without pegging them to federal enacted law.
Countervailing federal interests are, in short, a mystery, but probably no more mysterious than the idea of restrictions on federal common law in general.(Parallel posted on Michael Green's Civ Pro Blog.)
The (So Far) Unmentioned Proposition 8 Litigation Tactic
There’s plenty of buzz over Hollingsworth v. Perry, the case before the Supreme Court that will determine whether California’s Proposition 8, which was approved in 2008 and amended the state constitution such that “[o]nly marriage between a man and a woman is valid or recognized in California,” is constitutional. Like many, I read the petitioners’ merits brief with interest.
But I noticed something (and, something, despite voluminous commentary, I haven't seen discussed elsewhere). And I went back to read the petitioners’ cert petition. Sure enough, the petitioners made a significant change between the petition and the brief. Did you notice? Probably not.
Well, the petitioners asked for permission to write a 20,000-word brief instead of a 15,000-word brief. That permission was denied. So, like good litigators should, petitioners changed citations. In the cert petition, petitioners cited a page in the appendix as “App. 445a.” In the merits brief, it’s “Pet.App.445a.” The “Pet.” is to distinguish the petitioners’ appendix—but that’s not the important part. The important part is the omission of a space in the citation. And, an excellent post from the Supreme Court of Texas Blog explains how that small space, in most word processers, reduces that citation from two words to one word. It doesn’t affect the brief’s readability in the slightest. But it saves dozens of words in a word count.
A small, but important, litigation tactic for all attorneys.
Sunday, January 27, 2013
Erieblogging: Day Twenty-Seven
Today’s Erie question is about conflicts between Erie (understood as deference to a state supreme court concerning the content of the state’s law) and the twin aims of Erie (understood as a duty of procedural uniformity with forum state courts). Such conflicts arise in triangular cases – that is, cases in which a federal court is entertaining a cause of action under the law of a state other than the forum. Erie was itself such a case: it involved a federal court in New York entertaining a Pennsylvania action.
There are many examples of conflicts between Erie and the twin aims of Erie:
1) Erie tells us that a federal court in Georgia interpreting Pennsylvania common law must respect the decisions of the Pennsylvania Supreme Court. But under the twin aims, because a Georgia state court interpreting Pennsylvania common law would adopt the Swiftian view that it can ignore the Pennsylvania Supreme Court’s decisions, a federal court in Georgia should be Swiftian too.
2) Erie and its progeny tell us that a federal court in New York entertaining an unsettled issue of Pennsylvania law must predict how the Pennsylvania Supreme Court would decide. But under the twin aims, because a New York state court deciding an unsettled question of Pennsylvania law would ignore the Pennsylvania Supreme Court’s likely decision and presume that Pennsylvania law is like New York law, a federal court in New York should presume that Pennsylvania law is like New York law too.
3) Abbe Gluck has suggested that it follows from Erie that a federal court in New York interpreting a Pennsylvania statute should use Pennsylvania’s rules of statutory interpretation. But under the twin aims, if a New York state court interpreting a Pennsylvania statute would use New York’s method of statutory interpretation, a federal court in New York should use New York's method too.
4) Kim Roosevelt has argued that it follows from Erie that a federal court in New York interpreting Pennsylvania law should be bound by the choice-of-law decisions of the Pennsylvania Supreme Court. But under the twin aims, because a New York state court interpreting Pennsylvania law would use New York’s choice-of-law rules, a federal court in New York should use New York's choice-of-law rules too.
5) In Byrd, Justice Brennan argued that a federal court in New York entertaining a Pennsylvania cause of action is obligated under Erie to respect Pennsylvania rules bound up with the Pennsylvania action. But under the twin aims if a New York state court entertaining a Pennsylvania action would ignore such Pennsylvania rules, and apply New York law instead, so must a federal court in New York.
The easiest way to solve these problems is to argue that state courts entertaining actions under sister state law have the same obligations under the Full Faith and Credit Clause that federal courts entertaining state law actions have under Erie. So I have argued. But even if I'm wrong, some account of state courts' Full Faith and Credit obligations when entertaining sister state actions is needed to make sense of the scope of conflicts between Erie and the twin aims of Erie. What might that account look like?(Parallel posted on Michael Green's Civ Pro Blog.)
Saturday, January 26, 2013
Erieblogging: Day Twenty-Six
Here's today’s Erie question (OK – it’s actually a reverse-Erie question). Let’s start with a diversity case. Assume a federal court in New York is entertaining a Pennsylvania cause of action. It has a duty under Erie and Byrd to respect the content of the Pennsylvania action (including rules bound up with that action). That duty is pegged to the likely decisions of the Pennsylvania Supreme Court. But it also has a duty under the twin aims to have procedural uniformity with a New York state court, a duty that doesn’t seem related to the New York Court of Appeals’s likely decision on the matter. My earlier posts were mostly on the former duty, while my more recent ones have been on the latter.
What about when a state court entertains a federal cause of action? Does the state court have a duty only to respect the content of the federal cause of action, analogous to a federal court’s duty under Byrd, or is there also a duty of procedural uniformity with federal courts. In short, do the twin aims apply in a reverse-Erie context?
One might wonder how the distinction between Byrd and the twin aims is possible in a reverse-Erie context. After all, the Supreme Court is authoritative concerning both issues. In our diversity case, in contrast, the Pennsylvania Supreme Court was the authority concerning whether a rule was bound up with the Pennsylvania cause of action, while the United States Supreme Court was authoritative on the role of the twin aims.
But I think there is an important distinction between the Supreme Court saying that a federal rule is bound up with a federal cause of action because the failure of a state court to use the rule would frustrate the substantive regulatory policies of the federal action, and the Supreme Court demanding that a state court use the federal rule to serve federal jurisdictional policies, such as avoiding forum shopping between federal and state court. For example, the Supreme Court would want the bound-up rules to follow the federal cause of action into the courts of other nations. It would not care whether foreign courts used rules of the second type.
I’m pretty confident that a majority of the Supreme Court thinks that something like the twin aims apply in a reverse-Erie context, although I don’t think they would put it that way. Others agree. An example is Haywood v. Drown. Haywood concerned a New York statute according to which any civil action for damages against prison personnel for torts committed within the scope of their employment had to be brought in the New York Court of Claims. Because this court could not entertain federal civil rights suits, the effect of the statute would be to remove state court jurisdiction for federal civil rights suits brought against prison personnel.
The New York statute does not frustrate the substantive purposes of federal civil rights actions, for the only result of the statute is that they get litigated in federal or sister state courts rather than New York state courts. But it does violate the twin aims. In holding the statute preempted, I think the majority of the Court was relying implicitly on the twin aims – and an analogy between diversity and reverse-Erie cases. The upshot of Thomas’s dissent, in contrast, was a rejection of the applicability of the twin aims in a reverse–Erie context. So who’s right?
Friday, January 25, 2013
Erieblogging: Day Twenty-Five
Two more questions about the twin aims of Erie. Do they apply when a federal court entertains a state law action after having gotten personal jurisdiction over a party pursuant to the “100-mile bulge” in Fed. R. Civ. P. 4(k)(1)(B) or through pendent personal jurisdiction?That's what federal courts have assumed. But, once again, why uniformity with a forum state court when it could never have entertained the action, because it lacked personal jurisdiction over the defendant?
Thursday, January 24, 2013
Erieblogging: Day Twenty-Four
Statutory interpleader creates federal jurisdiction for minimal diversity state law actions in which a plaintiff seeks to settle rival claims to property. Armed with nationwide service of process, she can drag all potential claimants into one proceeding, thereby protecting herself against inconsistent or multiple liability. The Supreme Court has assumed that the twin aims apply in statutory interpleader actions. So have lower federal courts.
But nationwide service of process creates a problem. Why is uniformity with a forum state court important when the forum state court could never have entertained the action, because there was no personal jurisdiction over the defendant?
(Parallel posted on Michael Green's Civ Pro Blog.)
Wednesday, January 23, 2013
Erieblogging: Day Twenty-Three
The question is not whether applicable state law should be used by a federal court sitting in bankruptcy. It obviously should, unless there is some conflict between the state's law and the goals of bankruptcy. The question is whether the twin aims of Erie apply. Is there a reason for uniformity between the federal procedural common law used in bankruptcy and the law used by a forum state court, even if the relevant state supreme court does not care whether its law is used?
The role of the twin aims in bankruptcy is a puzzle because federal bankruptcy jurisdiction is exclusive, so there is arguably no problem of forum shopping. In addition, a federal court sitting in bankruptcy has jurisdiction over all of the debtor’s property, no matter where it is located, and nationwide service of process is available. So it can entertain a state law action or issue even though the matter could not have been entertained by a forum state court.
Once again, it is hard to answer this question unless we know where the twin aims come from. This question counts as underexplored, not unexplored, by the way. There are a few articles out there on the topic, generally focused on whether Klaxon applies in bankruptcy, a matter about which there is a circuit split.
(Parallel posted on Michael Green's Civ Pro Blog.)
Tuesday, January 22, 2013
Erieblogging: Day Twenty-Two
One more puzzle about the twin aims of Erie - the goal in diversity cases of uniformity between federal procedural common law and the law used in a forum state court, to avoid “forum shopping” and the “inequitable administration of the laws" (whatever that means). Since we don't know where the twin aims come from, it's not easy figuring out whether they apply when a federal court is entertaining a state law action outside of diversity. My question for the day is: Do the twin aims apply when a federal court entertains state law actions under the Class Action Fairness Act (CAFA)?
The question isn't whether federal courts sitting under CAFA have a duty to respect state law that the relevant state supreme court wants federal courts to use (although maybe it follows from CAFA that even such state law should be preempted by federal common law). The question is whether the federal procedural common law used by a federal court should borrow from the law that would be used by a forum state court, even if the relevant state supreme court does not care whether its law is used in federal court. Congress can free federal courts of the twin aims if it wants. Has it done so in CAFA?
There is some discussion about whether Klaxon applies when a federal court sits under CAFA. (Klaxon said that a federal court sitting in diversity should use the choice-of-law rules that would be used by a forum state court.) But what about other federal procedural common law issues? Say the question is the method of calculating attorney's fees, exchange rates, or prejudgment interest. Concerning all three federal courts sitting in diversity have borrowed from forum state law. Should they do so when entertaining state law actions under CAFA? If we don't know where the twin aims come from, how can we answer this question?
(Parallel posted on Michael Green's Civ Pro Blog.)
Is anything jurisdictional anymore?
Today's SCOTUS decision in Sebelius v. Auburn Regional Med. Cen. (good summary of the main issue--equitable tolling--at SCOTUSBlog) required a brief detour into the jurisdictionality of the 180-day statutory period for filing an administrative review of Medicare reimbursement. And once again, the Court unanimously held that a filing period is not jurisdictional, again applying Arbaugh's plain statement rule.the The provision lacks any jurisdictional language or words with "jurisdictional import." Plus, filing periods typically are non-jurisdictional. That this provision was surrounded by other provisions that were jurisdictional does not change the conclusion. Nor does the fact that Congress expressly made other provisions non-jurisdictional; the Court would not accept that as anything more than a canon of construction that need not apply in all cases, in light of the text of the statute at issue.
We are on a roll in terms of non-jurisdictionality. The Court now seems to be going out of its way to find provisions (properly) non-jurisdictional. In fact, neither the government nor the medical providers wanted to argue that the provision is jurisdictional--recognizing the overwhelming direction of the doctrine; the Court appointed John Manning of Harvard as amicus to make the argument. Indeed, I am beginning to wonder whether anything, other than an outright jurisdictional grant, ever will be treated as jurisdictional again.
Monday, January 21, 2013
Erieblogging: Day Twenty-One
Yet another puzzle about the twin aims of Erie (the goal in diversity cases of uniformity between federal procedural common law and the law used in a forum state court, to avoid “forum shopping” and the “inequitable administration of the laws"). The question of the day is this: What did Warren mean in Hanna by the inequitable administration of the laws?
Assume New York's statute of limitations for negligence actions is two years. I can see how it would cause forum shopping if a federal court sitting in diversity in New York entertaining a New York negligence action used a three-year federal common law time limit. But why would it be the inequitable administration of the laws? Where's the inequity? The reason cannot be that the New York Court of Appeals would say that it wants its two-year limit to be used by the federal court, for the twin aims are not concerned with what the supreme court of the forum state or the supreme court of the state that created the cause of action has to say about the matter.
Warren doesn't suggest it would be inequitable if a Pennsylvania state court applied its three-year statute of limitations to the New York action. Nor does he suggest it would be inequitable if Congress came up with a three-year statute of limitations for state-law negligence actions brought in federal court. So what is inequitable about a federal common law time limit? Note: This question counts as underexplored, not unexplored.
(Parallel posted on Michael Green's Civ Pro Blog.)
Sunday, January 20, 2013
Erieblogging: Day Twenty
Another question about the twin aims of Erie (the goal in diversity cases of uniformity between federal procedural common law and the law used in a forum state court, to avoid “forum shopping” and the “inequitable administration of the laws"). My question is this: Where do the twin aims come from? They do not seem constitutionally required. Congress has the power to regulate the procedure of federal courts in diversity cases even if vertical forum shopping results. Indeed, sometimes forum shopping is just what it wants. The twin aims must have a statutory or federal common law source.
John Hart Ely said the twin aims came from the Rules of Decision Act. I'm skeptical. First of all, there is a growing consensus that Brandeis's reading of the Act in Erie was mistaken. The Act did not prohibit or disfavor the creation of federal common law. Indeed, it can be understood as a direction to federal courts to apply federal common law.
But even if Brandeis's reading of the Act in Erie was right, the twin aims can't follow from the Act. This is what the Act says:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.
Assume that Brandeis is right and the Act tells federal courts to favor state law over federal common law, if state law applies. The problem is that the twin aims recommend that forum state law be used even if it does not apply - that is, even if the forum state's supreme court would not hold that its law should be used in federal court. It looks like the twin aims recommend that state law be borrowed rather than applied. And nothing in the Rules of Decision Act suggests that state law (much less the law that would be used by a forum state court) should be borrowed by federal courts sitting in diversity.
So, where do the twin aims come from?(Parallel posted on Michael Green's Civ Pro blog.)
Saturday, January 19, 2013
Erieblogging: Day Nineteen
Today's question is about the “twin aims of the Erie rule” in Hanna v. Plumer – that is, the goal of uniformity with a forum state court, in order to avoid “forum shopping” and the “inequitable administration of the laws.” In fact, it's the same question as yesterday: Why did Warren call them the twin aims of the Erie rule? But today's question is based on a different puzzle.
Under the twin aims, a federal court sitting in diversity should use the forum state's statute of limitations, if that is what a forum state court would use. But if the twin aims are about Erie, shouldn't the question be whether the forum state supreme court wants its statute of limitations to be used by federal courts within its borders? The twin aims seem to be about uniformity with a forum state court whatever the forum state supreme court says about the matter. And that doesn't sound like Erie to me.
(Parallel posted on Michael Green's Civ Pro blog.)
Friday, January 18, 2013
Erieblogging: Day Eighteen
So far, I have said nothing about the so-called “twin aims of the Erie rule” in Hanna v. Plumer – that is, the goal of uniformity with a forum state court, in order to avoid “forum shopping” and the “inequitable administration of the laws.” I’ve been concerned about the scope of federal courts’ obligations to respect state lawmaking power. I have not assumed that the state at issue is the forum. But it’s now time for questions about the twin aims.
My first is this: Why did Warren call them the twin aims of the Erie rule? Erie held that a federal court in New York could not come to its own conclusion about the common law prevailing in Pennsylvania. It had to follow the decisions of the Pennsylvania Supreme Court. The reason was respect for Pennsylvania’s lawmaking power, not because following the Pennsylvania Supreme Court was what a New York state court would do.
Indeed, at the time Erie was decided some state courts had their own version of Swift v. Tyson. When deciding a common law case in arising in a sister state, they would come to their own conclusion about the common law rule, without deference to the sister state supreme court. For a federal court in such a state, following the twin aims of Erie would mean rejecting Erie and adopting Swift. Indeed, because Georgia is apparently still committed to a Swiftian view of the common law, that is precisely what federal courts in Georgia do. In re Tri-State Crematory Litig., 215 F.R.D. 660, 677 (N.D. Ga. 2003). They choose the twin aims of Erie over Erie.
So, I ask again, why are they called the twin aims of Erie? Sure, Brandeis mentioned how Swift generated forum shopping in Black and White Taxicab. But that involved a federal court's interpretation of the law of the forum state. It was not a case where the difference between Erie and the twin aims of Erie is evident.
(Parallel posted on my Civ Pro blog.)
Vilma lawsuit dismissed
U.S. District Judge Ginger Berrigan yesterday dismissed under FRCP 12(b)(6) the defamation suit filed by Jonathan Vilma, one of the Saints player suspended in "Bountygate,"against Roger Goodell (but not the NFL). The court concluded that Goodell made these statements in his role as commissioner exercising his investigative powers under the CBA, thus the claims were precluded by the anti-suit provision and other portions of the CBA and the Labor Management Relations Act. The court also concluded that Goodell could not have acted with actual malice because his statements came after an investigation, even if it was a procedurally flawed one.
The second of those conclusions is a bit dicey, although the first seems right (based on what little I know about the LMRA). The court was not always faithful in drawing all inferences in favor of the plaintiff and at times seemed to be making factual conclusions based on what she read in the newspaper about Bountygate. There also is some gratuitous "look at me" language that the case "feels as protracted and painful as the Saints season itself" and taking a potshot at Goodell that had he been less heavy-handed, the lawsuit could have been avoided. Lines like that always sounds better coming from Posner or Kozinski.
In any event, the timing of this decision is good for me. I gave my Civ Pro students Vilma as one of their sample pleadings (it lends itself to a great subject matter jurisdiction question) and we just started talking about 12(b)(6).
Thursday, January 17, 2013
Erieblogging: Day Seventeen
Here’s my Erie question for the day. Why do members of the Supreme Court spend so much time disagreeing about questions of state law in Erie cases? Why don’t they just certify the questions to the relevant state supreme court?
In Shady Grove, for example, a good deal of the disagreement concerned whether New York Civil Practice Law § 901(b) was substantive, in the sense that it followed New York statutory damages actions into other court systems. Ginsburg thought it was. Stevens and Scalia thought it wasn’t (although Scalia said it didn’t matter either way). It was all speculation, of course, because without certification no New York state court would ever have occasion to answer the question. But why didn’t the Supreme Court certify the question to the New York Court of Appeals? Why do the Justices waste their time and ours writing opinions speculating about issues over which they have no interpretive authority?
Same thing in Gasperini. Lots of discussion about whether New York’s standard for overturning a jury’s damages award as excessive was akin to a cap on damages (in which case it would follow New York actions into other court systems) or procedural. Stevens and Ginsburg said it was substantive. Scalia said it was procedural. Who cares what they think? Ask the New York Court of Appeals.
Indeed, I don’t recall any case in which certification has been used by a federal court (even a lower federal court) when trying to decide an Erie question of whether a state rule displaces federal procedural law. I understand that there are other federal issues that need to be decided in such cases, but it would be nice to have state law nailed down first.
(Parallel posted on my Civ Pro blog.)
Wednesday, January 16, 2013
Erieblogging: Day Sixteen
A good deal has been written, even before Shady Grove, about the limits that state law might put on Federal Rules of Civil Procedure, whether under the shall-not-abridge-enlarge-or-modify-any-substantive-right limitation in the Rules Enabling Act or under more novel theories. But there's not much out there on Congress’s ability to displace applicable state law through its power over federal procedure. According to Warren in Hanna v. Plumer, apparently Congress can displace state law as long as what it regulates is "rationally capable of classification" as procedure.
Really? Burdens of proof are rationally capable of classification as procedure. Could Congress put the burden of alleging a lack of contributory negligence on the plaintiff for all diversity cases, no matter what state negligence law said about the matter?
Can a state legislature use its power over the procedure of domestic courts to displace applicable sister state law as long as what it regulates is arguably procedural? If not, does it make sense that the Constitution gave Congress greater power over federal procedure than states have over state procedure? Or is the idea that Congress can use the Commerce Clause to displace state substantive law anyway, so what good are scruples about its power over procedure?
Also, what need was there in Hanna to talk about Congress's power to displace applicable state law? Was Massachusetts’s service rule really applicable? Would the Massachusetts Supreme Court have said that the rule applied in federal courts? Maybe all that Warren was saying in Hanna was that Congress has the power to regulate the arguably procedural in the absence of conflicting state law. (That would make more sense to me, at any rate.)(Parallel posted on my Civ Pro blog.)
Tuesday, January 15, 2013
Erieblogging: Day Fifteen
My Erie question for the day is yet another puzzle about conflicts between state law and federal procedural common law. In Byrd, Justice Brennan said that it followed from Erie that a state rule bound up with a state cause of action must, as a constitutional matter, trump competing federal procedural common law. Yesterday, I asked why a state couldn’t extend its law to a federal court without binding it up with a cause of action. For example, it might want its attorney-client privilege law to extend to any court, federal or sister state, assessing the admissibility of communications made in New York between a member of the New York bar and a client, even if the cause of action entertained by that court is not under New York law. Would New York's attorney-client privilege law trump any competing federal procedural common law on the matter?
Today’s question concerns yet another way that a state might extend its law to federal courts. What if a state wanted its law to extend only to federal courts within its borders? Assume, for example, that the New York Court of Appeals held that New York's attorney-client privilege law extends to federal courts in New York—whether they are entertaining actions under New York, sister state, or foreign law. Would New York law trump federal procedural common law on the matter? Or is a state not even permitted to target the procedure of federal courts in this fashion?
(This is parallel posted on myCivPro blog.)
Monday, January 14, 2013
Erieblogging: Day Fourteen
My Erie question for the day is another puzzle about conflicts between federal procedural common law and state law. In Byrd, Justice Brennan said that it followed from Erie that a state rule bound up with the state’s cause of action must, as a constitutional matter, trump competing federal procedural common law. I’m skeptical. But let’s assume he’s right. Why is it so important that the state’s rule is bound up with a cause of action? Can’t state law trump federal procedural common law in other ways?
Assume that the federal district court in Erie was trying to figure out whether communications made in New York between Erie and its New York counsel were privileged. Under New York law they were. Under federal procedural common law they were not. Why can’t this be a case in which New York law trumps federal procedural common law, even though New York obviously has not bound up its attorney-client privilege law into the Pennsylvania cause of action?*
*For the purpose of this question, assume that the choice-of-law issue had not already been answered by Fed. R. Evid. 501. In addition, ignore the fact that the twin aims of Erie (more on them later) would recommend using New York’s attorney-client privilege law independently of any constitutional considerations.
Sunday, January 13, 2013
Erieblogging: Day Thirteen
Whatever one’s worries about the scope of federal courts’ power to create federal common law, everyone agrees that they must have some power to create procedure, that is, common law rules that govern the means by which causes of action (including state law actions) are litigated in federal court. But what happens when a matter is governed by a federal procedural common law rule and by the state law action under which the plaintiff sues? Which wins out?
In Byrd, Justice Brennan said that state law always wins: “It was decided in Erie R. Co. v. Tompkins that the federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts” – including rules “bound up with these rights and obligations.”
Even if Brennan is right, was this really decided in Erie? And is he right? Assume that service in federal court is not governed by Fed. R. Civ. P. 4, but by a federal common law rule. A plaintiff sues under Pennsylvania law in federal court in New York. Can Pennsylvania really constitutionally compel the federal court to use Pennsylvania's service rule just by binding it up with the Pennsylvania action?
Saturday, January 12, 2013
Erieblogging: Day Twelve
Brandeis’s statement in Erie that there is no "federal general common law” could not have meant that there is no federal common law. The same day that Erie was decided the Supreme Court handed down another decision, also authored by Brandeis, that held that an issue was governed by a federal common law rule.
There are lots of great articles by fed courts scholars on the scope of federal courts’ power to make federal common law, mostly concerning the role of separation of powers concerns on this power. The issue is not underexplored. What is underexplored is the following, my question for the day (parallel posted on my CivPro blog):
A federal court might have the power to create federal common law, but decide that doing so is not advisable, out of constitutionally discretionary respect for Congress or the states. How can we tell whether a theory is really about federal courts’ power to create federal common law or just about when federal courts should, as a self-imposed limitation, choose not to? (This is not a rhetorical question. I’m really asking…)
Friday, January 11, 2013
Erieblogging: Day Eleven
Assume that a federal court has the power to make federal common law that preempts applicable state law. It can do three things with this power: a) exercise it and create an independent federal common law rule, b) refrain from exercising it, allowing state law to apply of its own force, or c) exercise it and create a federal common law rule that incorporates the state law rule. There must be a difference between options b) and c), right?
For example, when a federal statute lacks a limitations period and a federal court borrows a limitations period for it from an analogous state statute of limitations, it is incorporating state law into a federal common law rule, not letting state law apply of its own force. On the other hand, if the federal court in Erie actually had the power to create a federal common law rule, it refrained from exercising that power. It did not incorporate Pennsylvania law into a federal common law rule. Otherwise the law applied in Erie would have been federal common law, not Pennsylvania law, even if the federal court decided exactly as the Pennsylvania state court would (the possibility that the state supreme court might be followed perfectly is, in part, what separates today's question from yesterday's). Federal courts’ power to create federal common law surely does not, like Midas’s touch, turn every state law rule they use into federal law. But if there is a difference between options b) and c), how do we tell what the difference is? When does state law apply of its own force and when is it incorporated into federal common law?
Thursday, January 10, 2013
Erieblogging: Day Ten
In honor of the 75th anniversary of Erie Railroad Co. v. Tompkins, I’m posting an un- or underexplored question about Erie each day for the whole month.
Today’s question: The scope of federal courts’ power to make federal common law is not an underexplored question. It is, if anything, overexplored. But assume that a federal court has the power to create federal common law. It nevertheless declines to do so, and applies state law instead. What are its Erie obligations when interpreting this law? Does it have any Erie obligations? Could one argue that even a gross misinterpretation of state law is constitutionally permissible, since it can simply be reconceptualized as the permissible creation of a federal common law rule? Such an argument, combined with an expansive theory of federal courts’ common lawmaking power would make Erie irrelevant.
For example, Erie concerned a railroad’s duty of care to a trespasser on a path running parallel to the railroad tracks. Given the connection between railroads and interstate commerce, this is arguably an area where a federal court has the power to create a federal common law rule. But according to the above argument, it would follow that the federal court in Erie had no constitutional duty to abide by the decisions of the Pennsylvania Supreme Court after all. Any misinterpretation of Pennsylvania law would simply be the creation of a federal common law rule.
(Note: This is parallel posted on my CivPro Blog.)
Wednesday, January 09, 2013
Erieblogging: Day Nine
Another un- or
underexplored question about Erie Railroad Co. v. Tompkins (parallel posted on
my own CivPro Blog).
Today's question: A federal court sitting in diversity or alienage jurisdiction is facing an issue of Australian common law. Does it have an Erie obligation to decide as the High Court of Australia would?
There is a reason to think that a federal court’s constitutional duties when interpreting state law are different from its duties when interpreting the law of a foreign nation. Assume, for example, that an issue of state law faced by a federal court is sufficiently unsettled that the parties could not have reasonably relied upon one interpretation rather than another. The federal court is still obligated to do its best to decide as the state supreme court would, even though whatever decision it comes to would not violate the due process rights of the parties. The reason is that the federal court’s constitutional obligations are not just to the parties. It has a duty to respect the state’s lawmaking power and that means deciding as the state supreme court would (assuming, of course, that the state supreme court wants such deference).
On the other hand, from what I can tell a federal court has no constitutional obligation to respect the regulatory power of a foreign nation. Its constitutional duties concerning foreign law are solely to the parties themselves. And doesn't that mean that if the parties have no reasonable expectations, a federal court can, as a constititional matter, interpret foreign law any way it wants?
This is one of a whole slew of puzzles concerning Erie in an international context. For a recent argument that Klaxon should not apply when a federal court is choosing between state law and the law of a foriegn nation, see Trey Childress's recent article, When Erie Goes International. (Klaxon, you may recall, says that a federal court sitting in diversity should use the choice-of-law rules of the state where the federal court is located.) I'm skeptical, but I loved the article.
I’ve noticed that a fair number of academics—whether in scholarship, in casebooks, or in blog posts—have gravitated toward combining the case titles of the two significant Federal Rule of Civil Procedure 8(a)(2) & 12(b)(6) cases from the Supreme Court in the past decade, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, into the portmanteau “Twiqbal.” Akin to Chunnel, or Brangelina, this neologism seems irresistible. (It’s in a dozen or so Prawfs posts, so it must hold influence.)
A cursory search of Westlaw, however, suggests that the novel phrase has found essentially no support in judicial cases. The Court issued its opinion in Iqbal, the later of the two cases, on May 18, 2009. It has been cited over 110,000 times, according to the generously-inclusive category of “citing references” on Westlaw, with nearly half of those references (over 50,000) in case opinions. I found just four federal judicial opinions using the phrase “Twiqbal”: two from December 2012, an unpublished opinion from 2011, and one from 2010, for 0.008% Iqbal references. And while Iqbal is mentioned in approximately 860 law review articles, “Twiqbal” has around 18 references, or 2%.
Perhaps 18 journal mentions, along with online culture (it only has a few thousand Google hits), is not enough to suggest that the trend among academics diverges significantly from the actual practice of law. I wonder, though: is it too much to think that the academy ought to adopt the language used by courts, rather than develop its own, dare I say cute, terminology that bears little resemblance to reality? Or, am I just too stodgy (probably), drawing trends from small numbers (definitely), and a real bore at parties (absolutely)?