Friday, August 22, 2014

Would “Pattern or Practice” Litigation Work in Ferguson?

The following guest post is by Stephen Rushin, a VAP at Illinois.

Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.

This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson. 

Let me start with a little background. Since Congress passed § 14141 in 1994, the DOJ has used the measure to reform police departments in cities all across the country, including Los Angeles, Washington, D.C., New Orleans, Pittsburgh, Cincinnati, Albuquerque, Seattle, Detroit. One of my earlier articles documents all of the formal DOJ action under § 14141. Below is a map showing all DOJ action under this statute (this doesn’t include DOJ action in Puerto Rico and the Virgin Islands). That same article also describes trends in DOJ enforcement of § 14141 over time.

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In practice the DOJ has settled virtually all § 14141 cases through largely extrajudicial negotiations. One notable exception is the recent litigation in Alamance County, North Carolina. In a forthcoming article, I draw on original interviews to describe and evaluate this largely “off-the-books” process and theorize on its effectiveness. Scholars like Mary Fan (UW Seattle) have argued that this sort of bargaining of constitutional reforms in the shadow of the law “may yield smarter and farther reaching reforms.” And as Howard alluded to in his earlier post, Rachel Harmon and Kami Chavis Simmons have made valuable contributions in this field by describing how the federal government could use § 14141 to bring about more widespread and effective change in local police departments.  

Studies in Los Angeles, Pittsburgh, and Cincinnati have suggested that § 14141 litigation can help police departments reduce misconduct. In my research, I argue that federal intervention via § 14141 helps reduce misconduct in several ways. For one thing, it forces municipalities to prioritize investment in police reform. Preventing unconstitutional misconduct is expensive. Take New Orleans as an example. There, estimates place the annual cost of the consent decrees facing the New Orleans Police Department and Orleans Parish Prison at around $18 to $33.5 million. In confronting such an immediate financial burden, communities are left with two options: reallocate scarce municipal resources to the cause of police reform, or generate more revenue through higher taxes. While this might seem troubling, interview participants in my study suggest that municipalities can recoup some of this cost through future reductions in civil suits for officer misconduct. As one city official in Detroit told me, “the amount of money that we have saved on lawsuits that we had endured for years … have paid for the cost of implementation of the monitoring two or three times” over.

Federal intervention via § 14141 also commonly spurs municipalities to bring in outside, reform-minded leadership to their police department. Federal intervention arms these local police leaders with legal cover to implement potentially unpopular, but necessary reforms. And it utilizes external monitoring to ensure that frontline officers substantively comply with top-down mandates.

That is the good news. But this regulatory method is far from perfect. For one thing, virtually all interview participants that took part in my study acknowledged that § 14141 litigation is most effective when the local police and political leadership are supportive of the reform. In 2010, Assistant U.S. Attorney Tom Perez announced that the Civil Rights Division was again “open for business” and would aggressively use its authority under § 14141 to reform local police departments. Even so, real questions remain about whether the DOJ can effectively use § 14141 to force reform in a municipality that defiantly and obstinately opposes federal intervention.  

There are also serious questions about the sustainability of reforms achieved via § 14141. For example, in Pittsburgh, Police Chief Robert McNeilly oversaw the city’s Bureau of Police throughout the implementation of § 14141 reforms. During his process, McNeilly was an ardent supporter of federal intervention, despite fierce backlash from his own officers. After federal oversight ended, though, the newly elected Pittsburgh mayor removed McNeilly from his post. Since then, the Bureau “is now sliding back towards where it was” before federal intervention. One of McNeilly’s successors, Chief Nathan Harper, is currently serving an 18-month prison sentence on corruption-related charges. And the current Pittsburgh mayor recently acknowledged that the Bureau had regressed so much that it may be “on the verge of another consent decree.”

All of this is to say that § 14141 is not a silver bullet. If a full DOJ investigation finds evidence of a pattern or practice of police misconduct in Ferguson, the use of § 14141 may help facilitate organizational change. At the end of the day, though, long-lasting reform in the Ferguson police department will require more than § 14141. It will require dedication by local politicians, supportive leadership in the police department, and organizational buy-in by frontline officers.

Posted by Howard Wasserman on August 22, 2014 at 10:00 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Tuesday, August 19, 2014

Summary judgment and the infield fly rule

No, not together, sadly.

The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).

And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:

This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.

Posted by Howard Wasserman on August 19, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 18, 2014

JOTWELL: Walker on the effect of teaching procedure

The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.

Posted by Howard Wasserman on August 18, 2014 at 02:18 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, August 12, 2014

Jurisdictional elements and merits

Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.

The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.

But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.

Posted by Howard Wasserman on August 12, 2014 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Saturday, July 19, 2014

Chokeholds and clearly established rights

This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).

I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:

1) What will the court do with the video on summary judgment? As I wrote in a  draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.

2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).

3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).

Posted by Howard Wasserman on July 19, 2014 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Wednesday, June 25, 2014

Standing and defendants

In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action.  (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).

Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.

In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).

But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.

So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.

Posted by Howard Wasserman on June 25, 2014 at 07:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, June 24, 2014

The end of umpires?

That is the proposal from John McEnroe to make tennis more interesting--have the players call their own lines, as a way to introduce greater intensity into the game. Players would be given challenges and McEnroe argues that the threat of fan anger would keep players in line. It has been said that back in the day, if the umpire clearly missed a call, the player who benefitted from the blown call would tank the next point as an equalizer (I am not sure if that is true). On surfaces where the ball leaves a mark (notably clay), a player will often point to the spot of the ball to show the opponent before an argument begins.

Continuing my previous suggestion that sports rule as enforced by umpires are analogous to rules of procedure--the framework rules regulating the process in which the players control the outcome through performance of skills: This is the sports equivalent of arbitration; the parties have privatized the dispute-resolution process into something they create and control themselves, perhaps less formally, rather than using formalized "outside" processes and arbiters that they work with but exert less control over. Maybe that means McEnroe's proposal will work about as well as arbitration.

On a different note on McEnroe's suggestion: This video is pretty funny. Latvian Ernests Gulbis is asked about McEnroe's proposal to get rid of umpires; Gulbis misunderstands and thinks the reporter asked about getting rid of vampires and begins to discuss the benefit of getting ride of vampires (in the metaphorical sense of hangers-on).

Posted by Howard Wasserman on June 24, 2014 at 10:37 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, June 23, 2014

JOTWELL: Thornburg on Hadfield and Ryan and information disclosure

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts, and the Information Order, 54 J. European Sociology 67 (2013), exploring the demoratizing role of civil litigation, particularly discovery and the public value of information disclosure.

Posted by Howard Wasserman on June 23, 2014 at 10:21 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, June 21, 2014

Lance Armstrong: Another Civ Pro exam

Judge Wilkins on the District of the District of Columbia  addressed a host of motions to dismiss in the False Claims Act and common law fraud lawsuit against Lance Armstrong and others over false statements and claims relating to the Postal Service sponsorship of Armstrong and his team; the case began as a qui tam action by rider Floyd Landis and the United States intervened. For some reason, when sports disputes hit the courts, they carry procedure and jurisdiction problems with them.

If you are looking for a single source for a lot of possible exam issues, this 81-page decision has a little bit of everything: 1) Presentation of outside documents and facts on a motion to dismiss and the possibility of converting a 12(b)(6) to summary judgment; 2) when an action commences under Rule 3 and the validity of Rule 3 in the face of different state law; 3) handling lawsuits against no-longer existing corporate entities; 4) Relation back of a new party's complaint (the U.S., when it intervened) where the relevant statute of limitations provides for relation back; 5) propriety of the manner of service of process; 6) propriety of using 12(b)(6) to assert a statute of limitations defense; and 7) how to plead fraud under FRCP 9(b).

Posted by Howard Wasserman on June 21, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, June 20, 2014

When dissent rhetoric comes true

In covering summary judgment in civ pro, I teach an Eighth Circuit case called Sitzes v. City of West Memphis. A police officer drove, perhaps without lights or sirens, 80-90 mph through a residential neighborhood towards what may or may not have been a genuine emergency and hit a car, killing the driver and injuring the passenger. A divided court held that intent-to-harm was the applicable standard and granted summary judgment in favor of the officer. It is a great teaching case because both the majority and dissent parse the evidence in the record in identifying what may or may not be genuine disputes of material fact and join issue with what facts are material in light of the applicable legal standard. It is also one of the few cases in Civ Pro that genuinely seem to get students riled up.

At one point, the dissenter (a district judge sitting by designation) went into parade-of-horribles mode. The majority held that there was no intent to injure since the officer genuinely subjectively believed he was rushing towards an emergency. That being so, the dissent argued, "an officer could avoid Section 1983 liability for driving 100 miles per hour through a children’s playground during recess time, by stating that he subjectively believed there was an emergency and the path through the playground was the most direct to get to the claimed emergency." The majority's only responses were: 1) that's not this case and 2) "we think it very likely that an officer who intentionally drove through a playground . . . could be held liable even under the intent-to-harm standard, regardless of the officer’s avowed belief, at least absent some compelling exigency not described in the hypotheticals."

Well:

 

True, it is a golf course not a playground and the video seems to suggest it was not crowded. And it was a pursuit, apparently begun when officers attempted to serve outstanding drug warrants, perhaps the "compelling exigency" the majority demanded; it was not the officers using the golf course as a short-cut to reach some other location. And, fortunately, the officers did not hit anyone, so we need not address the § 1983 or due process questions.

On the other hand, why chase him onto the course, with all the attendant risks? There was a police helicopter in the chase, so the guy was not going anywhere.

Posted by Howard Wasserman on June 20, 2014 at 11:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Thursday, June 19, 2014

Standing is easier when you're Younger

An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.

But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.

Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted  in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.

The key is recognizing that connection between standing and Younger. Younger requires abstention in deference to three types of pending state proceedings, including civil enforcement proceedings, especially those in which the state is party to the proceeding and in which the state initiates the formal process following some other preliminary investigation. The Sprint Court expressly recognized the administrative proceedings in Dayton as of the type to which a federal court must abstain. And the Court has never suggested that administrative proceedings must be supported by criminal prosecution to trigger abstention; a purely civil administrative proceeding is enough. Younger does not require abstention where those civil-enforcement proceedings are threatened but not pending. The issue then is one of standing or ripeness (or both)--whether there is a sufficiently credible threat (how sufficient is the point of Marty's post) that any such proceeding will be initiated. This creates a window for individuals to get into federal court--in the time between when the threat of initiation becomes real and when proceedings actually have been initiated.

So now we can frame the standing question for preenforcement challenges in those terms. If there is a credible threat of initiation of any proceeding and it is a proceeding from which Younger would require federal abstention once that proceeding is initiated, then the plaintiff has standing (or the action is ripe, whatever) for a preenforcement challenge. This now preserves that window for getting to federal court. Otherwise, if a genuine threat of a purely administrative proceeding is not sufficient to trigger standing, then a plaintiff is forever blocked from that federal forum--he cannot bring a preenforcement challenge and Younger kicks-in once the government initiates the administrative proceeding. In SBA List, it seems obvious that a federal court would abstain once Commission proceedings were pending against a speaker--that is what the district court initially held in the case (before other things happened procedurally). Therefore, the real threat of those Commission proceedings alone--whether or not supported by criminal prosecution--should be enough to establish standing.

Posted by Howard Wasserman on June 19, 2014 at 07:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, June 18, 2014

More on SBA List and standing

Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).

That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.

Posted by Howard Wasserman on June 18, 2014 at 12:53 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Tuesday, June 17, 2014

IRS: "sorry, can't produce" or a bad example of hiding the ball?

Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed.  And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials.  Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).

The facts surrounding this issue almost read like a law school exam hypothetical.  The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting.  The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days.  The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found.  The IRS does not deny that the recipients, other government officials, may still be in possession of the emails.  The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.

If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste.  The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions.  Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."  The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost.  Did the IRS, in fact, make a good faith effort?

While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails.  The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful. 

An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy.  The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means).  It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted.  Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content. 

Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails.  Rule 26 would have required Congress to do so.  Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence.  If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.

If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction.  Shouldn't the IRS be held to these standards?

 

Posted by Naomi Goodno on June 17, 2014 at 06:03 PM in Civil Procedure, Current Affairs, Information and Technology, Law and Politics, Tax | Permalink | Comments (7)

Monday, June 16, 2014

Standing, ripeness, and SBA List

Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).

Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).

Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.

At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).

Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.

But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.

The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.

So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?

Posted by Howard Wasserman on June 16, 2014 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Ripeness, In and After SBA List v. Driehaus

Today's unanimous standing decision in Susan B. Anthony List v. Driehaus generally came as little surprise: confronted with speakers wishing to criticize candidates for office, the Court gave a green-light to a pre-enforcement First Amendment challenge. Along the way, however, the Court had a few interesting things to say about ripeness. In this post, I'd like to explore the possibility that SBA foretells future changes in ripeness doctrine.

By way of background, SBA List involved a First Amendment challenge to Ohio's law against recklessly false speech regarding officials and candidates for office. One of the plaintiff groups had previously suffered early enforcement proceedings under this law and felt chilled from further speech of a similar kind. Viewing the case as one about standing, the Court explained that the key question was whether the plaintiff's threatened injury was sufficiently likely. The Court found the requisite threat based on a variety of considerations, including the fact that the plaintiffs planned to continue speaking on the same subject and the legal possibility that administrative complaints could be initiated by any person, including political rivals with an incentive to do so. Though the Court didn't say so, these and other considerations seem to distinguish SBA List from the famous/infamous case Los Angeles v.  Lyons, which found that the threat of a police choke-hold policy didn't give rise to a justiciable injury.

Perhaps the most basic question in SBA List was what doctrinal box to use. The Sixth Circuit had treated the case as one about ripeness, by which it meant three factors: the likelihood of the alleged injury, the record's fitness for review, and the hardship to the parties if relief were postponed. By contrast, the Supreme Court focused on standing, which demands an actual or imminent injury in fact that is traceable to the violation and redressable by a favorable judgment. In a footnote, however, SBA List said that the standing and ripeness issues both "originate" in Article III and "boil down to the same question," at least in this case. In other words, the key issue was whether there was a sufficiently credible threat of enforcement to give rise to an adequately probable injury, as demanded under both standing and ripeness. Later, SBA List confronted the "prudential" ripeness factors going to fitness and hardship. After raising doubts about whether prudential grounds are ever a sound basis for denying federal jurisdiction, the Court left that matter for another day, since all the ripeness factors had been satisfied in the case at hand.

Reading between the lines, SBA List appears to be setting the stage for holding that the prudential ripeness factors aren't constitutional at all, but rather are either unwarranted or substantive components of certain statutes providing for judicial review. This move is familiar after the decision earlier this year in Lexmark International v. Static Control Components, which (among other things) clarified that "prudential standing" doctrines are actually substantive requirements embedded in various statutory causes of action. Making this connection apparent, SBA List quoted Lexmark when it noted that merely "prudential" factors normally aren't a sound basis for denying federal jurisdiction. This approach also seems consonant with recent ripeness cases. Consider National Park Hospitality Association v. Department of the Interior, a 2003 Supreme Court decision that, like SBA List, was written by Justice Thomas. While noting that ripeness is rooted in part in Article III, National Park described ripeness without breaking out likelihood of injury as a distinct requirement, and it followed Lujan in characterizing ripeness as being at least potentially grounded in the Administrative Procedure Act.

If the Court ultimately goes down this path, there is a chance that something valuable might be lost. Under the prevailing standing framework, the key question is whether the plaintiff faces a sufficient threat of injury. Under the ripeness heading, by contrast, the intuitive question is whether the plaintiff has a sufficient threat of injury right now, as opposed to at a later time. In other words, ripeness calls for a comparison of risks across time. That comparative or relative aspect allows the Court to alter the required showing of injury in light of the situation at hand. If the Court rejected that relative ripeness analysis as merely prudential, it might find it harder than expected to live with a non-comparative, one-size-fits-all notion of adequate injury for constitutional purposes. SBA List itself illustrates that difficulty when, in attempting to reconcile competing standing cases, it notes that imminent injury requires either a "certainly impending" injury or only a "substantial risk" of one. Relative analysis, it seems, is hard to purge from the law of justiciability.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 16, 2014 at 04:13 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

Saturday, June 14, 2014

CFP Deadline: Seventh Junior Faculty Fed Courts Workshop

The full CFP is here. The submission deadline is Friday, June 20. Send abstracts to federalcourtsworkshop@gmail.com. Contact Matt Hall or Kent Barnett (both at Georgia) with questions.

Posted by Howard Wasserman on June 14, 2014 at 04:02 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, June 10, 2014

Falling in line on the FTAIA

The Second Circuit last week became the latest circuit (joining the Third and Seventh) to overrule circuit precedent and hold that the Foreign Trade Antitrust Improvements Act (FTAIA), which limits the extraterritorial reach of the Sherman Act, is a nonjurisdictional merits limitation. This court focused more on Arbaugh and the absence of "jurisdictional language," rather than Morrison's absolute "extraterritoriality-is-always-merits" approach. But, citing the Seventh Circuit, the court recognizes the merits nature of the FTAIA. The court makes one nice move with the FTAIA's legislative history and its repeated references to jurisdiction. References to the "subject matter jurisdiction of United States antitrust law" are not unambiguously about the adjudicative authority of the federal courts, but instead are better understood as inartfully referring to the prescriptive scope of federal law, which goes to the merits of any claim under that law.

The Second Circuit also recognized that Congress was as confused as the courts about jurisdictionality and as likely as the courts to use terms loosely and inaccurately, at least prior to Arbaugh in 2006. This suggests that even if Congress did include "jurisdictional language" in a pre-2006 statute, courts still must look carefully at whether it really meant adjudicative jurisdiction or whether it meant jurisdiction in some other sense (notably in referring to its own legislative authority). Morrison's absolute approach helps in this reading of statutory text and history.

Posted by Howard Wasserman on June 10, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 04, 2014

Setting traps in a deposition

A while ago, I linked to a New York Times Verbatim video, in which actors recreate depositions, based on the transcripts. In this one, a lawyer gets increasingly agitated as he goes round and round with the deponent about the meaning of "photocopier." At the time, I missed this feature on the lawyer taking the deposition, David Marrburger, a partner at Cleveland's Baker-Hostetler. Marburger states that in reality he was not angry or agitated during the deposition; he actually enjoyed stringing along the deponent (the exchange goes on for 10 pages), who clearly had been prepped by his lawyer to obfuscate, in a way that was going to make him and the defendant look bad. Watching the reenactment, it was pretty obvious what the deponent was doing and pretty easy to guess why. While the video is funny, the background story provides a nice lesson both for lawyers defending depositions against doing this and for lawyers taking depositions about how to handle it.

Posted by Howard Wasserman on June 4, 2014 at 08:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 03, 2014

Wow, there is a right that is clearly established

According to the Eighth Circuit, it is the right to destroy an American flag for expressive purposes. And an officer who does not know that is the plainly incompetent officer who does not warrant qualified immunity and should be liable for damages.

A police officer in Gape Girardeau, MO arrested Snider--pursuant to a warrant obtained from a county judge on an application from the county prosecutor--for violating the state's flag desecration law. According to the case, neither the officer nor the prosecutor (nor, we must assume, the judge) knew about Texas v. Johnson; the charges were dismissed and Snider was released when a reporter called the prosecutor and told him about the case. Snider then filed a § 1983 action, claiming the arrest violated the First and Fourteent Amendments.

The Eight Circuit agreed that the officer (who conceded that Snider's rights were violated) lacked qualified immunity. Johnson and United States v. Eichman established in 1989-1990 that someone could not be punished for using the American flag to express an opinion and a reasonably competent officer in 2009 (the time of Snider's arrest) would have known that. The officer was not saved by the judge issuing a warrant; while a warrant typically indicates the officer acted in an objectively reasonable manner in effecting an arrest, this case fell within the exception where no reasonably competent officer would have concluded that the warrant was valid, given the clearly established state of the law.

There is some other good § 1983 stuff in this case, including the unexplained intervention of the State of Missouri, attorney's fees (imposed in part on the State, even though it could not have been liable in the case), and the rejection of a failure-to-train claim against the city (one could argue that an officer who does not know something as basic as Johnson has not been constitutionally trained) because the State, not the local government, is responsible for training local police officers.

Posted by Howard Wasserman on June 3, 2014 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (2)

Saturday, May 31, 2014

Donald Sterling v. NBA: Your new Civ Pro exam

Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.

Oddly, these claims are either not ripe or about to become moot, depending on what happens with the sale. The NBA has not yet held the hearing to terminate his ownership, so he has not yet suffered any damages from it. And since the league will cancel the hearing if the sale goes through, that claim becomes moot. If the sale goes through, expect the league to rescind the fine, mooting that element of relief. It might even lift the lifetime suspension--what involvement will Sterling have with the league if he is no longer an owner?--mooting that claim. And assuming the sale goes through, what damage will Sterling have suffered? Two billion dollars will be more than double the sale price of any NBA franchise and likely more money than he would have earned from continued ownership of the team. So, at best, maybe he can get the non-economic value of being an NBA owner--except he is such a pariah now among NBA owners that it would be hard to put any real value on this.

What Sterling really wants is an injunction halting the sale of the team, at least pending outcome of the litigation. But to get that, Shelly Sterling needs to be involved in the case, since she claims an interest in controlling the trust and pushing through the sale. So either she has to be joined under FRCP 19 or she will try to intervene under FRCP 24. (Note: I don't do much more than lecture on these two rules, just to show other ways of bringing parties into cases But Rule 19 confuses students, who think it applies more broadly to cover simple joint-tortfeasor situations; having a nice clear example, purely involving injunctive relief, is helpful).

Jurisidction here hinges on the antitrust claim and § 1331; there is supplemental jurisdiction over the state law claims (although Sterling's lawyer--who in an ongoing media blitz has come across as the worst kind of slickster lawyer who does not actually care about things like law and procedure--did not mention that or any other basis for jurisdiction over the non-federal claims). But, here is where it gets fun. Antitrust experts generally agree that the antitrust claim is nonsense--Sterling signed a series of agreements and contracts to become owner of an NBA franchise and cannot claim harm if those contracts harm the public or competitors. Sterling really is arguing that, by violating its own Constitution and By-Laws in punishing him (arguments that are not entirely frivolous), the NBA has breached those agreements; in other words, this is really a state-law case. So perhaps the court declines supplemental jurisdiction under § 1367(c)(2) because the state claims predominate. Moreeover, the court is going to have to figure out who controls the trust (Donald or Shelly) and, perhaps, whether Donald is competent. Those sound like potentially complex issues of state law, warranting the court to decline jurisdiction under § 1367(c)(1). Finally, and most obviously, if the antitrust claim is that weak and the court dismisses it relatively early, it could decline jurisdiction simply for that reasons under § 1367(c)(3).

Update: An alert reader emails with another way Shelly Sterling could be brought into this case: She agreed to indemnify the NBA for any judgments arising from the sale of the team, including for lawsuits by her husband. So, having been sued, the NBA could now implead Shelly and the trust to enforce the indemnification agreement in the same action. Sterling then could assert claims against Shelly relating to any injunction of the sale.

Posted by Howard Wasserman on May 31, 2014 at 11:02 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Tuesday, May 27, 2014

The awfulness of Wood v. Moss

OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.

First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.

Second, for the third time, the Court assumed without deciding  that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.

Third, while the Court purported to resolve the case on the second prong of the qualified immunity analysis (no clearly established right ) rather than the first (no right violated), the analysis kept conflating the prongs and moving back and forth between them--there was a lot of discussion about why there was no violation here because the agents were motivated not by viewpoint discrimination but by security concerns. This is partly a consequence of the Court's insistence that the second prong must consider the right in the particular factual context and not at too high a level of generality, which invites entwinement of the two prongs. But the analysis (particularly at pp. 14-end) is all about why the agents were justified in moving the anti-Bush protesters (but not the pro-Bush protesters) in this case, not about anything having to do with prior case law. That sounds like the Court saying the plaintiffs did not sufficiently plead a violation.

Fourth, the decision does not leave any obvious room for protesters to ever challenge Secret Service decisions regarding crowd control (which is what Justice Scalia urged during argument). The Court pays lip service to the principle that "government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express." And it insists (as the defendants conceded) that the First Amendment might be violated if the agents moved some protesters with "no objectively reasonable security rationale." But that principle will virtually always be trumped by the overriding concerns for protecting the President and it is impossible to imagine a case in which a court would find that the Secret Service lacked an objectively reasonable security rationale while protecting the President. Indeed, the only purported security rationale in this case was keeping the protesters out of "weapons range" of the President (Ginsburg repeats that phrase four times), even though there is no indication on the facts pled that anyone had or planned to use a weapon. Someone being in range raises, per se, a valid security rationale.

But the Court then summarily dismissed any significance of allegations regarding the diners permitted to remain inside the restaurant--obviously in "weapons range" of the President--as undermining the security rationale. The justices simply accept the defendants' argument that the diners “'could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm,'" and thus were not a security risk, even if within weapons range. Of course,the anti-Bush demonstrators also did not expect to see the President in the open courtyard; they originally only expected to be able to stand along the path of the President's motorcade as it drove by (with pro-Bush protesters on the opposite sidewalk). So they, too, could not have had any opportunity to premeditate a plan. If the diners were not security threats because they were not expecting to be near the President, then neither should the protesters be security threats. Except for one difference--the protesters held anti-Bush views and were there to express those views. So is the Court saying that everyone who disagrees with the President is a security threat if in weapons range and thus can constitutionally be kept from getting "too close" to the President (at least when he is outside his secure car)?

Fifth, the Court does a lot of factfinding (without acknowledging as much, of course) on a case that remains at the pleading stage. The Court finds and accepts the defendants' security rationale, even though the defendants still have not answered the complaint or offered their own factual allegations or evidence. The Court makes determinations about what maps of the area, included as part of the Complaint, show (perhaps another example of plaintiffs pleading themselves out of court by providing the additional information needed to comply with Iqbal). And the Court rejects inferences about differential treatment of the protesters as compared with the diners. It appears to be apply Iqbal's "obvious alternative explanation," although without saying so. Otherwise, these at least should be matters for discovery and summary judgment, if not the factfinder.

Finally, the plaintiffs alleged past instances of viewpoint discrimination by other Secret Service agents; they were trying for an inference from these past instances to an informal agency policy of viewpoint discrimination to the individual defendants acting pursuant to that policy. The Court rejected this out of hand, insisting that Bivens liability can attach only to the officer's own misconduct and declining to accept the plaintiffs' inferences. Putting aside that reasonable inferences should be drawn in the plaintiffs' favor on a 12(b)(6) motion, this seriously cramps the ability to ever plead viewpoint discrimination in the absence of an agent dumb enough to announce that he is moving speakers because of their viewpoint. Moreover, the Court points to the agency's official policy--which expressly prohibits viewpoint discrimination--as evidence that the agents did not act improperly. But repeated past instances of ignoring official policy at least raise an inference that officers regularly ignore official policy, suggesting that these officers also ignored the policy. At the very least, that should be enough at the pleading stage.

As I pointed out previously, at oral argument Justice Kennedy mused that "it seems to me that if this complaint doesn't survive, nothing will." And given what the Court finally said in this case, nothing will.

Posted by Howard Wasserman on May 27, 2014 at 08:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 22, 2014

Standing, the Merits, and Judge Fletcher's "Softened" Views

On Monday, I blogged about standing in Town of Greece v. Galloway, and Howard’s subsequent comments on that subject have reminded me of an interesting recent development in standing scholarship that I’d like to draw attention to here.   In short, Judge Fletcher—a renowned critic of modern standing doctrine—recently wrote that his “views have softened somewhat.”

To recap, Howard initially suggested that standing might be found in Town of Greece and other Establishment Clause cases based on a plaintiff’s feeling of religious offense or exclusion, even in the absence of coercion. But in fleshing out that instinct, Howard found it tricky to avoid collapsing the distinction between standing and the merits—a move that current standing doctrine frowns on. To state Howard’s point using the categories of my earlier post, when trying to make answer #5 work, it’s tempting to slide into answers #4 or #6.

In particular, it’s tempting to slide into the theory famously put forward by then-Professor and now-Judge William A. Fletcher. To grossly simplify his beyond-classic article, Fletcher argued that the scope of standing should turn on the merits, that is, on the meaning of the substantive law at issue. From that vantage, an inquiry into “injury in fact” seemed pointless—or worse. In a well-known passage, Fletcher compared the injury-in-fact requirement with “substantive due process.” Here’s an excerpt:

To use a phrase that is particular anathema to those members of the Court most anxious to tell us that there are Article III limitations on statutory grants of standing, one may even say that the ‘injury in fact’ test is a form of substantive due process.

This was a drop-the-mic moment—a powerful and compelling charge of intellectual hypocrisy.

One difficulty with that line of attack, however, is that a lot of people like substantive due process, and many of them are otherwise sympathetic to Fletcher’s critique of standing doctrine. As so often happens, inconsistency could be viewed as a two-edged sword.

With that background, consider Fletcher’s recent contribution to a terrific Alabama Law Review symposium in honor of Fletcher’s work on standing. I’ll only reproduce portions of Fletcher's keynote remarks here, but I recommend reading them all:

I have rethought a few things, helped in part by the papers contributed to this Symposium. In my article, I criticized the Supreme Court for not admitting what it was doing. The Court wrote that its purpose in limiting standing under Article III was to exercise judicial restraint and thereby preserve our democracy. In Justice Scalia's words, the Court was preventing the “overjudicialization” of our government. But each time the Court holds that a grant of standing to enforce a statutory duty is unconstitutional under Article III, the Court is doing precisely what it says it is not doing. It is not deferring to the exercise of power by our democratically elected legislative body. Quite the contrary. It is restraining Congress’s power and increasing its own.

While I have not exactly changed my mind, I have to say that my views have softened somewhat. I no longer insist so vigorously that the Court explain what it is doing and why, and I no longer object so strenuously to the Court's substituting its view for Congress’s.

[Fletcher then discussed leading standing cases involving the Establishment Clause, the Equal Protection Clause, and environmental law.]

... I regard all three lines of cases as examples of the Supreme Court’s use of its lawmaking power. ...

The Supreme Court has not, and will not, explain its Establishment Clause, equal protection, and environmental standing decisions in the way that I have just explained them. It has not, and will not, state openly the degree to which it is making law. This is not a new phenomenon. Common law courts have always been reluctant to say openly the degree to which they are changing the law. They much prefer to emphasize the degree to which their decisions are consistent with, even compelled by, decisions reached in earlier cases. I do not regard the Court’s unwillingness, perhaps inability, to explain what it is doing as illegitimate or improper. The Justices are acting in the way they and their predecessors have always acted, making law even as they seek to disguise the degree to which they are doing it.

Given that Fletcher has been an intellectual leader both in the academy and, now, on the bench, his “softened” views seem noteworthy—particularly since they’re coupled with a candid description of how “[c]ommon law courts have always been reluctant to say openly the degree to which they are changing the law.”  Indeed, Fletcher's softer attitude toward standing doctrine seems linked to a similar change in attitude toward the exercise of what he calls the Supreme Court's "lawmaking power."  As he puts it, "I no longer object so strenuously to the Court's substituting its view for Congress’s."

To my mind, Fletcher’s “rethought” view of standing addresses a significant set of questions raised by his original piece. And it adds an interesting perspective on the standing issue in Town of Greece and many other cases.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on May 22, 2014 at 09:54 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Tuesday, May 20, 2014

Injury and standing, rights and merits

In this post, I suggested that the difference between an injury and a right (or claims of right) marks the difference between standing and merits. Richard's post explaining unspoken standing issues in Town of Greece offered as one possibility that while coercion is necessary to state an Establishment Clause claim, something less (say, mere offense at being subjected to sectarian prayer) is enough of an injury for standing. So are we saying the same thing?

My initial inclination was no. Richard notes that mere offense has not been sufficient injury in other contexts; for example, the stigma of race discrimination is insufficient to establish standing, as is knowledge of general wrongdoing by government. But I saw the offense in Greece as something different and more direct. The plaintiffs were offended by sectarian prayer with which they were directly confronted and made to sit through. A pure stigmatic or generalized injury would be a citizen who did not attend council meetings, but alleged that she was harmed simply because sectarian prayers were going on. It was not that there was something unique about the Establishment Clause that the Court was afraid to address; the nature of the conduct and thus the injury genuinely were different.

But as I think on it further, I am less sure we are not saying the same thing. The difference between Warth or Schlesinger and Town of Greece is the different nature of an injury caused by the Establishment Clause compared with the Equal Protection Clause, given the unique purposes of each provision. But if so, that is problematic for my attempted explanation for the standing/merits divide. It necessarily means that whether someone has suffered an injury-in-fact turns on the potential right at issue--in other words, something may be injury for one source of right (Establishment) but not for another (Equal Protection). This more closely links injury to right (or claim of right). And the closer those two things come together, the less standing doctrine makes sense as a concept distinct from merits and the more it appears as nothing more than a cheat to preempt ordinary merits analysis on some constitutional claims.

Posted by Howard Wasserman on May 20, 2014 at 01:59 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Two procedural cases of note

Two procedural cases having nothing to do with one another, other than being interesting (to me).

1) Monday's SCOTUS Orders List included Thomas v. Nugent, in which the Court GVR'd to the Fifth Circuit for further consideration in light of last week's per curiam reversal without full briefing (also of the Fifth Circuit) in Tolan v. Cotton (which I wrote about here and here). I will simply quote what an alert reader wrote in an email: "So if the holding of Tolan is 'remember the basic concept of summary judgment, dummy,' then Thomas v Nugent seems to stand for the proposition 'you probably did it again, dummy, but your work was so sloppy that we're not even going to check it until you rewrite it.'" That about covers it.

2) Scott Dodson (Hastings) points me to this Ninth Circuit decision, written by Fed Courts guru Judge William Fletcher. A lot of Civ Pro/Fed Courts/Civil Rights stuff in here. Of particular note is the discussion at pp. 25-27. Part of the case involved the failure by the county to take sufficient steps to immediately find the family of an unidentified man shot and killed by a police officer (thus denying the family the opportunity to bury him in accordance with their Muslim faith). Among the many claims were I/I/E/D and negligence claims by the victim's siblings; the district court found they lacked standing because they had no legal interest in the disposition of the victim's remains and thus had not suffered an injury-in-fact. The court of appeals rejected that conclusion. The plaintiffs suffered emotional harm allegedly caused by the county's actions, which was sufficient to establish standing. Instead, the siblings' claims failed on the merits, because the county owed no duty to the siblings (defeating the negligence claims) and the county did not intend to cause the siblings emotional distress (defeating the I/I/E/D claims). But the absence of a valid claim of right reflects a failure of the claims on the merits, not an absence of standing/jurisdiction.

This standing analysis--resting on the distinction between injury-in-fact and right (in the Hohfeldian sense)--provides a different explanation for Richard's post on standing in Town of Greece (I tried to put this as a comment to that post, but Typepad is having some problems). There is a difference between whether a plaintiff has suffered an injury and whether his rights have been violated; the former goes to standing while the latter goes to the merits. In other words, a person can be injured, and thus have standing, even if the conduct at issue did not violate their rights, thus losing on the merits.

Here, for example, the siblings' emotional distress constitutes an injury-in-fact for standing, even if their rights were not actually violated (because there was no duty and no intent). In Town of Greece, the plaintiffs suffered an injury in that they were offended or felt excluded, even if their rights were not violated because only actual coercion runs afoul of the First Amendment; again, the plaintiffs have standing, but the claim fails on the merits. Or take one more example: The victim here suffered an injury-in-fact in being shot, providing standing (for his survivors), even if turns out the use of force was reasonable and thus the claim fails on the merits.

Now perhaps this distinction between injury and right is artificial or impossible to implement. But it may be the only way that standing does not swallow merits.

Posted by Howard Wasserman on May 20, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Monday, May 19, 2014

The Missing Standing Decision in Town of Greece

As part of my ongoing quest to discover under-appreciated jurisdictional issues, I'd like to return to the Court's recent decision in Town of Greece v. Galloway.  In that case, the plaintiffs objected to the use of sectarian prayers to solemnify public proceedings, and the Court found no Establishment Clause violation in part because the public prayers at issue were not deemed coercive.  That holding raises an interesting threshold question: in the absence of coercion, did the plaintiffs have standing to bring their claim in the first place?  Bizarrely, the Supreme Court has never directly addressed this issue, even though it arises in many Establishment Clause cases.

I can see a bunch of possibilities, all with problems.

1.  The Court could try to squeeze a conventional "injury in fact" out of the situation in Town of Greece.  For instance, the plaintiffs could have argued that the sectarian invocation imposed costs on attendees in the form of wasted time.  But that kind of argument would generate causation problems, including because the town would likely employ other, equally time-consuming forms of solemnification in the event that its actual prayer policy were struck down.  There is also something dissatisfying about basing standing on what seems like a convenient excuse, or an "ingenious academic exercise in the conceivable," when the real reasons for bringing suit -- and hearing the case -- lay elsewhere.

2.  The Court could invoke municipal taxpayer standing, which was briefly noted in the District Court and Court of Appeals decisions in Town of Greece.  Obviously, this approach wouldn't work in many public prayer and display cases.  Further, the prayers at issue in Town of Greece seemed to involve only "incidental" expenditures, and did not necessarily involve the kind of direct cash outlay that, under recent cases, serves as the basis of taxpayer standing.  Finally, taxpayer standing is generally in decline at the Court, and, in that context, it is odd for municipal taxpayer standing to be going strong.  As Judge Sutton has pointed out, cities can have populations larger than those of states.

3.  Maybe, in cases like Town of Greece, the Court is thoughtlessly issuing "drive-by jurisdictional rulings" that it would focus on and reconsider in a future case, if only the point were squarely argued.  On this view, there was actually no standing in Town of Greece or any similar Establishment Clause case.  The main problem with this approach is that it would mean that there was actually no standing in Town of Greece or any similar Establishment Clause case.  While objectionable and counter-intuitive, that result isn't impossible.  In fact, something similar happened a few years ago in another Establishment Clause case, Arizona Christian School Tuition Organization v. Winn.

4.  Perhaps the coercion issue controls both standing and the merits, such that the two inquiries effectively collapse into one another.  This would presumably mean that, in ostensibly finding no Establishment Clause violation on the merits, Town of Greece actually (or simultaneously) found no jurisdiction.  That possibility comports with the widespread sense that standing is often just the merits by other means.  But the Court has given no sign that it's issuing jurisdictional holdings in cases like Town of Greece, even though jurisdictional and merits inquiries are different and can have distinct consequences for the parties.  And, of course, standing is supposed to be separate from the merits.

5.  Coercion could be viewed as relevant to the merits, while something less than coercion might suffice to create "injury in fact" for standing purposes.  For example, standing might arise from being religiously offended or from personally witnessing an establishment of religion.  This is probably what most people think is going on in Town of Greece.  But offense short of coercion normally isn't enough for standing.  For example, stigmatization caused by racial discrimination has been found inadequate.  And personally witnessing an illegality usually isn't enough to obtain standing either.  So something unusual must be going on in Establishment Clause cases for this approach to work -- and the awkwardness of saying so may explain why the Court has repeatedly ducked this issue.

6.  Finally, the Court might be prepared to set aside the doctrinal "injury in fact" analysis.  Since this is my blog, let me offer my own preferred means of doing so: in cases without coercion or other traditional injuries in fact, the Court might afford standing to those persons with the greatest interest in bringing the claim.  In Town of Greece, the challengers seemed to fit that bill.  There are problems here, too, of course. Comparing potential claimants won't always be easy; and the Court has said that standing can remove entire issues from the federal courts, thereby excluding even "best" plaintiffs.  Still, the justices sometimes seem to follow this basic approach, and even say so.  If you're curious to read more, here's a link to my article, "Relative Standing."

Which answer is best?  Are there others?

This post is cross-posted at Re's Judicata.

Posted by Richard M. Re on May 19, 2014 at 10:07 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (1)

Friday, May 09, 2014

More on Tolan and summary judgment

At the Civ Pro & Fed Courts Blog, Ed Brunet and John Parry comment on SCOTUS's per curiam/summary reversal/some other strange procedure in Tolan v. Cotton, the § 1983 summary judgment case I wrote about  earlier this week. Ed and John note that this is the first SCOTUS victory for a civil rights plaintiff in a summary judgment case in quite awhile.  I would argue that the effect of the decision, and the meaning we should draw from it, is wrapped up in the strange process the Court used to decide the case (whatever we call it--GVR, summary reversal, per curiam decision, or something else) 

One possibility they propose is that this represents a change in the Court's attitude, a sharp reminder to lower courts to take seriously the requirement to identify obvious factual disputes and to deny summary judgment when evidence genuinely goes in competing directions. Doing so in a per curiam opinion signals that this is nothing new legally, but simply a reminder of what it is well-established courts are supposed to be doing all along. On the other hand, by doing so in a per curiam opinion without full briefing, the Court removes some of the precedential weight of the decision.

Another possibility Ed and John propose is that the Court was just looking to correct grievous error in a very simple case, making this one of those one-off cases in which SCOTUS corrects egregious error without a broader rulemaking goal. But if that was the goal, the Court could have genuinely GVR'd the case or issued a summary reversal. By also writing an opinion--even per curiam--identifying the factual disputes and the conflicting evidence showing those disputes, the Court arguably is trying to do more: Demonstrating the appropriate analysis and trying to pull lower courts into line.

As I said earlier, I believe much depends on how the Court decides Plumhoff v. Rickard and the analysis the Court uses to get there. If the Court speaks, a la Scott v. Harris, about some testimony being "blatantly contradicted" by the record and thus insufficient to create factual disputes, that will remove a lot of the force from Tolan as a major summary judgment decision. If the Court rules for the defendant (as I expect) without a lot of focus on summary judgment, it may leave Tolan more room to do something.

Posted by Howard Wasserman on May 9, 2014 at 02:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 06, 2014

Town of Greece and Iqbal

A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.

I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.

But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).

Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.

Posted by Howard Wasserman on May 6, 2014 at 05:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Extraterritoriality, criminal law, and jurisdictionality

Here is a great opinion from the Second Circuit holding that the required nexus to the United States, necessary for extraterritorial application of the federal prohibition on providing material support to foreign terrorist organizations,  did not affect the trial court's subject matter jurisdiction in a criminal prosecution. Citing Morrison v. National Australia Bank, the court recognized that whether Congress did or can reach overseas conduct with a particular statute was a substantive merits that does not implicate the power of the district court to hear and decide the case. The court held that Morrison abrogated several past decisions, while recognizing that other circuits have run into similar confusion, even post-Morrison.

Posted by Howard Wasserman on May 6, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 05, 2014

Why not plenary review?

SCOTUS on MOnday GVR'd Tolan v. Cotton with a per curiam opinion (beginning on p. 13) holding that the lower courts failed to view the facts in the light most favorable to the plaintiff in granting the § 1983 defendant summary judgment (the case involved a police shooting). The analysis illustrates how a court should draw inferences in the non-movant's favor, identifying four or five facts and why the presence of contradictory evidence puts those facts in dispute. And the Court avoids the slicing-and-dicing of facts as in so many summary judgment cases. (The opinion could be a nice supplemental case for teaching summary judgment, showing how a court finds or does not find factual disputes).

But why did the Court GVR, rather than performing plenary review of the case and producing a precedential opinion? We certainly could use a precedential case from SCOTUS showing that sometimes there are factual disputes and summary judgment is not appropriate (especially given how Plumhoff v. Rickard likely will come out). Yes, the factual disputes were fairly obvious from the record, although probably not more so than in other cases. Moreover, most GVRs are done to give the lower court an opportunity to reconsider the case in light of new law or a recent decision, rather than, as here, to reconsider the decision because the lower court did it wrong the first time. The Court did produce a per curiam opinio analyzing the merits (unusual in GVRs), which should have some precedential effect. But it seems an odd approach.

Justice Alito, joined by Justice Scalia, concurred in the judgment (p. 24 of Monday's Order List). They argued that it was inappropriate to grant cert. (although they agreed with disposition of the case once cert. was granted), which only involved the routine consideration of the sufficiency of the record on summary judgment and possible factual error--routine work for courts of appeals, but not for SCOTUS.

Interestingly, Alito, joined by Scalia, cited his concurring opinion from Tolan in dissenting from denial of cert. in Beard v. Aguilar (p. 26 of Monday's Order List), a habeas case in which the Ninth Circuit found that the California Supreme Court had unreasonably Brady to the facts of the case. The point, I guess, is that if the Court is going do error correction in Tolan, it also should have done so there.

Posted by Howard Wasserman on May 5, 2014 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (9)

Wednesday, April 30, 2014

Dramatizing depositions

This is kind of funny. It is a dramatization of a deposition in which the attorney and deponent go round and round over the definition of "photocopier." It is taken verbatim from the transcript, although there is likely some dramatic license with tone and delivery. The Times is making this a regular opinion feature  and they are soliciting transcripts for future videos.

This also may be fun and useful as a Civ Pro teaching device, to illustrate something about depositions.

 

Posted by Howard Wasserman on April 30, 2014 at 11:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, April 27, 2014

On animal rights

Sunday's New York Times Magazine reports on efforts by the Nonhuman Animal Rights Project and attorney Steven Wise to establish rights for certain breeds of autonomous animals (chimps, orcas, dolphins, etc.), using state habeas petitions in New York. It's an interesting read; Richard Epstein is interviewed for the competing position.

Posted by Howard Wasserman on April 27, 2014 at 04:56 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, April 26, 2014

The truth about justiciability

From last week's  argument in Susan B. Anthony List v. Driehaus:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.

MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

You have to admire the honesty. The Sixth Circuit, which analyzed this as a ripeness case (and held that the action was not ripe), similarly acknowledged that the ripeness prong of likelihood of harm overlap with the standing prong of real, immediate, non-speculative injury-in-fact. It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.

Perhaps the Court will take this as a chance to clarify, although I doubt it. It seems so obvious that the case is justiciable, and the justices all so obviously believe the Ohio law--which prohibits knowingly false statements made in support or opposition to a candidate for office--is unconstitutional. The Court is going to be racing to reverse and send the case back to give SBA its chance to argue the merits in federal court. I doubt the fine details of standing v. ripeness are going to be the central concern.

Update: Alert reader Sam Bray (UCLA) reminds me about footnote 8 in Medimune, Inc. v. Genetech, Inc., where the Court said that standing and ripeness "boil down to the same question."

Posted by Howard Wasserman on April 26, 2014 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, April 23, 2014

CFP: Seventh Junior Faculty Federal Courts Workshop

The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).

The workshop is open to untenured 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 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014. 

Please send abstracts to federalcourtsworkshop@gmail.com. Please contact Matt Hall or Kent Barnett with questions.

Posted by Howard Wasserman on April 23, 2014 at 02:44 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, April 13, 2014

The best sports deal ever

That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details, the negotiations leading to the original deal, and the litigation and settlement that ended it.

Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).

Posted by Howard Wasserman on April 13, 2014 at 03:07 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Monday, April 07, 2014

Another (easy) procedure case

SCOTUS today granted cert in Dart Cherokee Basin Operating Co. v. Owens, to resolve whether a Notice of Removal must include evidence in support of subject matter jurisdiction (as the district court held here and the ) or whether it is enough that the Notice contain a "short and plain statement" of jurisdiction (as seven circuits have held), with no evidence necessary until arguing the Motion for Remand. I concur with Scott Dodson that this is going to be a 9-0 reversal, likely written by Justice Ginsburg.

Many in the wave of procedure/jurisdiction cases from the Roberts Court have been unanimous or near-unanimous. And Dart fits a particular pattern--a lopsided circuit split, with most of the circuits getting it right and the Court granting cert to bring the outlier court into line.

Update: Scott points out two subsidiary issues in the case. First is how to treat an insufficient short and plain statement (assuming that is all that is required in the Notice)--whether it represents a jurisdictional defect, which can be the basis for a motion to remand at any time, or a procedural defect, which must be asserted within 30 days. Second is whether the court of appeals had jurisdiction over the case under the Class Action Fairness Act, whether the court complied with CAFA's timing requirements, and whether the defendant filed its cert petition in a timely manner. The latter potentially complicates things.

Posted by Howard Wasserman on April 7, 2014 at 04:01 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack

Tuesday, April 01, 2014

Orality in litigation

I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee). They argue for increased live contact between trial judges and attorneys, including many Rule 16 conferences (permitted but not required under the rules), premotion conferences for discovery and summary judgment motions (the district judge I clerked for would immediately get the parties on a telephone conference as soon as a discovery motion was filed), and increased oral argument on dispositive motions. The goal is at least some increase in the number of trials--the ultimate oral process.

The common theme is that more oral presentation of issues (an essential component of greater attorney/judge contact) makes for better, more efficient, and more functional process. Gensler and Rosenthal explicitly highlight premotion conferences as a way to avoid the multi-step "minuet" of motions briefing, saving lawyers the time and money of having to prepare all that briefing and supporting documentation and judges the time of having to review it all. They argue it is easier to get to the core of the issues and to separate the wheat from the chaff with oral presentation, controlled by questions from the court. By contrast, they argue, written motions alone become overly long and complex, with parties often talking past one another, thus they do not reflect the best way to present, understand, or resolve issues. Ironically, of course, their argument comes when written argumentation is becoming easier and faster (via computers, electronic filing, etc.).

Is it right that oral presentation is better than written presentation? Should the legal profession re-orient itself to more oral litigation, at least in the main run of cases that are not overly complex? And how might that affect what and how we teach in law school?

Posted by Howard Wasserman on April 1, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, March 31, 2014

Video and public gatherings

Much is being written about the "riot" in Tucson near the University of Arizona campus on Saturday evening following the school's overtime loss in the Elite Eight of the NCAA Tournament. The police department is defending its actions, although there are murmurings about coming lawsuits and a thorough internal investigation. However it plays out, the event illustrates a couple of problems involving public gatherings and the role of video.

First, according to one eyewitness (the owner of one bar), students were not destroying property or acting in a violent or "unruly" manner. Nevertheless, the police "declared" it an unlawful assembly and issued a dispersal order; the violence (people throwing beer bottles began after that order, once police began trying to clear the streets. So the question (which I have not heard asked or answered) is why this was an unlawful assembly or why it was necessary for people to disperse when, according to that bar owner, they were "more were hanging out in the street rather than trying to cause problems." Tim Zick (William & Mary) has written extensively on the collapse of public spaces under the First Amendment, as public gatherings become heavily regulated and, in this case it seems, presumptively unlawful, to be met with massive displays of force and immediate dispersal. This is not to excuse violent responses to the move-along order, as much as to question the need for, and propriety of, the order in the first instance.

Second, people are talking about this video, in which a riot-gear-clad officer body-checks a woman over a bench (go to the :21 mark).

 

The video does not provide context, although the person who shot the video says the woman was walking to her car and talking on her cell when the officer ran over to her. It is hard to watch this without thinking about qualified immunity (is there Ninth Circuit case law about body-checking people talking on the phone?), the likelihood that this officer is going to have a job for much longer, and whether the plaintiff should get summary judgment under Scott v. Harris, because anything the officer can say to explain his actions will be "blatantly contradicted by the record" (i.e., this video). On the other hand, this case actually shows why video, while helpful, does not obviate the need for a factfinder; at the very least, there can be a dispute as to what the video shows and means and as to possible non-video explanations and reconciling any such conflicts is why we have factfinders.

Finally, this should render hollow the arguments against a public right to video record police conduct. This seems like exactly the situation in which we want people to be able to "check" police and the type of conduct that we want to expose with the more real and affecting (albeit not conclusive) evidence that video provides. The argument that police will behave differently if people with cameras are watching is incoherent, since this behavior is exactly what we hope officers will refrain from doing--and if the chance that they are being recorded provides that deterrence, great (it likely is more effective deterrence than § 1983 liability). And allowing people to record in no way "interferes" with this officer's work, other than by potentially exposing his misconduct.

Posted by Howard Wasserman on March 31, 2014 at 01:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, March 26, 2014

Wood: So many ways for the plaintiff to lose

The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.

Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.

The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.

Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.

Posted by Howard Wasserman on March 26, 2014 at 04:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

Tuesday, March 25, 2014

Clearing brush on standing and merits

While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.

The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.

Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.

As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.

Posted by Howard Wasserman on March 25, 2014 at 01:24 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Wednesday, March 19, 2014

A new justiciability puzzle

The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).

Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?

Posted by Howard Wasserman on March 19, 2014 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3) | TrackBack

Tuesday, February 25, 2014

More personal jurisdiction from SCOTUS

SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in  a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.

No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.

The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.

Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).

Posted by Howard Wasserman on February 25, 2014 at 04:14 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Sport, non-sport, and judging

I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.

Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.

The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.

And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.

Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).

These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.

Posted by Howard Wasserman on February 25, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (5) | TrackBack

Monday, February 24, 2014

Judgment Calls and Reputation, Part Three: Attorneys

It has been fun reading some of the thoughtful reactions to my previous post on the influence of reputation on figure skating judges.  Of course, judging at the Olympics is done anonymously now (not that it necessarily helps), but what if skaters could choose their judges, or at least know in advance the reputations of the judges?  Would their routines or strategy change in light of that information?

I’m no skater.  But I know from my days in law practice that knowing a judge's reputation (or even specific gossip on a judge) can make a big difference in litigation strategy.  The reputation of individual judges or entire courts, or other lawyers’ war stories about specific encounters with a judge, can affect forum shopping, motion practice, or whether to request a bench or jury trial.  My current research has focused on the influence of attorney gossip about judges, especially in the federal district courts, and I thought I would share a few highlights here.

I am talking about gossip in its broadest sense, meaning any secondhand information about the judge that is shared outside the judge’s presence and has an evaluative component.  That can be the more-or-less juicy and salacious stuff we read on Above the Law, but much more frequently it is evaluative information about the judge’s professional capacities and abilities –“Judge Smith takes forever to rule on summary judgment” or “Judge Jones has no patience for unprepared lawyers.”  Sometimes the gossip is tied to a specific event: “Judge White gave the clearest jury charge I have ever heard last week.”  Sometimes it is timeless: “Judge Brown is a colossal jerk.”

In ordinary social settings, we all use gossip to help frame our impressions of other people.  Think of being set up on a blind date, or preparing to meet a friend of a friend, or choosing a course taught by a certain professor.  Gossip allows us to form coherent impressions of people that guide our interactions with them, or (on the flip side) encourage us to avoid them completely.  Just as in social settings we do not flock to people whom we have heard are unpleasant, in litigation settings lawyers do not flock to judges whom they have heard are impatient, incompetent, or biased.  Just as information about the governing law can influence forum shopping, so too can information about the judges tasked with applying that law.

Gossip can influence lawyers even if they already know a judge well.  If I have an impression of Judge Jones as a terrific case manager, and then hear from a colleague that Jones let a straightforward case drag on for years, my impression of the judge will change, at least to some degree.  Likewise, if a have a terrible first experience before Judge Smith, and later hear from a colleague that he has a terrific reputation, I may be forced to rethink whether my experience was typical.  Perhaps Judge Smith just had a bad day, or perhaps I did something to provoke his ire. 

But gossip also has obvious and significant drawbacks, as anyone who has ever been in seventh grade knows.  The process of sharing gossip is rife with cognitive distortions.  Those who share gossip tend to omit critical contextual details: a lawyer sharing a war story about his bad experience with Judge White, for example, will typically make himself the hero and Judge White the villain.  Moreover, even if the lawyer tries to be objective, the storytelling process naturally will lead him to emphasize details important to the listener as the story is being told – what is called the shared reality effect.  Listeners, too, distort the information they hear to fit their own preconceptions.  Collectively, these effects (and others) create what has been termed the extremity effect, by which stories about people become simpler, sharper, and more polarized as they are shared more broadly. 

Litigators naturally try to compensate for the extremity effect by seeking out gossip and reputational information on judges from the most trustworthy sources they can find.  That primarily means seeking out lawyers who have directly and recently interacted with the judge.  Recent interaction avoids the problem of stale information, and cuts down on the extremity effect. (Think of the children’s game of Telephone – the message is typically clearer the closer it gets to the source.)  Lawyers will also compare their own direct experience with the judge to the gossip they receive.  In this way, direct personal encounters with the judge and gossip about the judge serve as mutual checks on each other, permitting the lawyer to create the most complete and coherent impression of the judge that she can.

But at least in the federal district courts, the direct interaction that is so necessary to "good" gossip is in rapid decline.  As I have described in detail here, courtroom time in the district courts has dropped every year since at least FY2008, and overall courtroom time nationally has dropped by nearly 10% in that time.  Moreover, several trends in modern federal civil litigation – most notably the ongoing pressure to resolve cases at the earliest stage possible – are making it even less likely that lawyers will enjoy repeated, direct interactions with judges in the future.  If these trends continue, most lawyers will need to rely more and more on gossip in order to supplement their meager levels of direct interaction, but the generally available gossip will be stale and extreme, and the gossip that does reflect recent interactions will be harder to come by.  That is, the gossip that will be the most relied upon will also be the least reliable.

Judges and lawyers should be concerned about the decline in courtroom interaction.  Lawyers need good information on judges, and judges should desire that the inevitable gossip shared about them is accurate.  And while there are several possible remedies (including formal bar polls or public judicial performance evaluation programs), one remedy lies easily in the hands of district judges: schedule more hearings and trials. Information is more accurate, and rumors tend to die, when you go directly to the source.  Here a bit of seventh grade wisdom could prove quite beneficial for the federal judiciary.

Posted by Jordan Singer on February 24, 2014 at 11:31 AM in Civil Procedure | Permalink | Comments (2) | TrackBack

Thursday, February 20, 2014

Show me plead on, plead off

At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.

Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:

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Posted by Howard Wasserman on February 20, 2014 at 10:31 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3) | TrackBack

Friday, February 14, 2014

Coleman on the discovery amendments

Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.

Posted by Howard Wasserman on February 14, 2014 at 10:49 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Needed Compromise In The Proposed Discovery Amendment War

The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types

The discovery rules are hot.  The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes.  The changes may be a game changer.  Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in.  Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.  

The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases.  However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases.  A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past.  In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases. 

At the same time, the problem of disproportionate cases should be fixed.  It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.

If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding.  In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request.  However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison.  Instead, the more appropriate comparison is privilege.

Under the current rule, parties need not produce relevant discovery that is privileged.  The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery.  By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds.  As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality.  Privilege is similar to a recipe.  If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions.  Lack of proportionality, on the other hand, is far from a recipe.  If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery.  In other words, proportionality is a much more vague concept than privilege.  Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege.  However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.

Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege.  Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality.  A proportionality log would provide such information.  The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case.  While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court.  If the amendments are going forward, it is time for a compromise.

Posted by Howard Wasserman on February 14, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, January 31, 2014

College athletes, unions, and short-term employment

As has been reported, an undisclosed number of  Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.

Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?

Posted by Howard Wasserman on January 31, 2014 at 06:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (5) | TrackBack

Wednesday, January 22, 2014

SCOTUS on Declaratory Judgments

SCOTUS today decided Medtronic, Inc. v. Mirowski Family Ventures, a unanimous decision through Justice Breyer. The Court held that in a declaratory judgment action brought by a would-be patent infringer seeking a declaration of non-infringement, the patentee bears the burden of persuasion of infringement, just as it would if it had brought a coercive action for infringement. There also is a brief discussion on Skelly Oil and how to define a when a declaratory judgment action arises under federal law (in this case, federal patent law).

Posted by Howard Wasserman on January 22, 2014 at 01:12 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, January 17, 2014

Settlement in § 1983 colonoscopy case

(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.

Posted by Howard Wasserman on January 17, 2014 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4) | TrackBack

Thursday, January 16, 2014

SCOTUSBlog: Opinion in Ray Haluch Gravel

I have a recap at SCOTUSBlog of yesterday's opinion in Ray Haluch Gravel v. Central Pension Fund, which held that a district court decision that resolves the merits but not a petition for attorney's fees is a final and appealable order, triggering the 30 day clock for filing an appeal. The Court continues to do procedure, even getting it right sometimes.

 

 

Posted by Howard Wasserman on January 16, 2014 at 02:07 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack