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).
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.
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?
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.
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.
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.
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?
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).
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.
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.
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:
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.
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.
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?
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).
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.
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.
Quick thoughts on personal jurisdiction
A few thoughts on personal jurisdiction following Tuesday's decision in Daimler v. Bauman, an 8-0-1 opinion by Justice Ginsburg, with Justice Sotomayor concurring in the judgment. Here is a good recap/summary.
1) I think the majority got it right. It clarified what it said three years ago in Goodyear--general jurisdiction is appropriate only if the defendant has continuous and systematic contacts that render it at home in the forum state, which usually means state of incorporation and principal place of business. The Court rejected the common lower court approach, still coming even after Good Year, applying general jurisdiction where an entity "engages in a substantial, continuous, and systematic course of business." The Court called this "unacceptably grasping," as it means any large corporation is subject to general jurisdiction pretty much nationwide.
2) The Court did leave open the possibility that a corporation could be subject to general jurisdiction in states other than incorporation and P/P/B, although there were strong hints this would be rare. The analysis would depend not only on the corporation's contacts with the forum, but also its contacts with other fora--the inquiry is whether the corporation is at home in the state--if it just does a lot of business everywhere, it is not at home there. The civ pro listserv jumped to the example of Boeing in Washington State--Boeing is incorporated in Delaware and headquartered in Illinois, but does most of its work in Washington.
3) In footnote 20, the Court erased any doubt that the two-step approach to personal jurisdiction everyone learned in law school (1) contacts 2) reasonableness only if there were contacts) remains the proper framework, but only for specific jurisdiction. There was some doubt about this after Nicastro, where all three opinions seemed to conflate the two prongs and Kennedy seem especially averse to jurisdiction based on some sense of convenience. But Kennedy signed onto the footnote here.
4) This was the point of departure with Justice Sotomayor, who wanted to apply the two-step approach even to general jurisdiction. The majority said that asking whether it is reasonable to subject a defendant to suit in its home would be superfluous.
5) This is a good teaching case. Justice Ginsburg starts with Pennoyer and the evolution of personal jurisdiction and spends time on the development and differences between specific and general jurisdiction. Ginsburg did the same thing in Good Year, but she really draws it out here. In teaching thiss area, I cover International Shoe, then introduce and define some concepts before diving into the 1980s cases beginning with World Wide. Ginsburg's discussion in Daimler will work well for introducing the two types of personal jurisdiction.
6) The one thing the Court did not resolve is when and how the contacts of a subsidiary can form the basis for gaining jurisdiction over a parent. The plaintiffs had tried to get Daimler in California through Mercedes Benz USA, which actually conceded general jurisdiction in California (ironically, the Court's ultimate analysis means MBUSA is not subject to general jurisdiction in California, since it is incorporated in Delaware and has its PPB in New Jersey). So what happens if Daimler is sued in, say, New Jersey, where MBUSA is "home"? Does that mean the parent is subject to general jurisdiction? Or will the Court say that the parent is only home in its own state of incorporation/PPB (which may not even be in the US)? Stay tuned.
Tuesday, January 14, 2014
Lawsuit over George Washington Bridge closings
The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.
It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?
Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.
Monday, January 13, 2014
More on the Infield Fly Rule
This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.
Thursday, January 09, 2014
You can't make this stuff up, prison litigation and football edition
A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.
The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.
The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.
Monday, January 06, 2014
Stay in Utah SSM case
SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.
Sunday, December 29, 2013
What effect pleadings?
The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.
So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:
1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.
2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.
Thursday, December 19, 2013
This recent Seventh Circuit case is mainly about substantive First Amendment/public-employee law, but it has a neat hidden pleading component. The plaintiff was a guidance counselor and girls' basketball coach at a high school outside Chicago; he was fired when he self-published a book on relationship advice titled "It's Her Fault" (the title kind of gives away the content). The Seventh Circuit affirmed a 12(b)(6) dismissal of his First Amendment claim; although his speech was on a matter of public concern (contra what the district court had held), he lost out in the Pickering balance because the school could reasonably believe he no longer could function effectively as a school counselor.
Here is where it gets Civ Pro-ish. The plaintiff apparently tried to make a detailed pleading; it quoted at length from the book and the written charges that the school board adopted in firing him and attached both the book and the charges as exhibits to the complaint. The court of appeals relied on these exhibits in affirming dismissal. The plaintff argued that a court only should perform a Pickering balance on a full record, and the court agreed that ordinarily Pickering is more appropriate after an opportunity for discovery. But in this case the court felt comfortable deciding on the complaint alone because it was so detailed. Everything needed for the analysis--the book and the board's stated reasons for the firing--were right there in the complaint. In other words, the plaintiff pled himself out of court, by including adverse allegations. Of course, had he provided less detail or not included those exhibits, the school board would have argued that there was not sufficient factual content to show that his speech was protected.
So what should a plaintiff do?
Tuesday, December 10, 2013
Forgive the excessive posting today; there is a lot happening today.
SCOTUS today unanimously decided Spring Communications v. Jacobs, placing significant limits on the scope of Younger abstention. Scott Dodson has a good analysis at SCOTUSBlog. The Court held that Younger only applies in three categories of cases: 1) criminal cases; 2) certain civil cases, typically where the state has initiated enforcement efforts against a private person; and 3) certain civil proceedings, where the challenge touches on the state's ability to perform its judicial functions (implicitly, it seems to me, where the challenge is to the source of authority for that function, such as the law imposing an appellate bond requirement). The decision eliminates the analytical distinction drawn in many circuits between coercive and remedial proceedings. And it makes clear that Younger does not reach simple parallel proceedings between private parties.
Other than rendering obsolete some of the Younger discussion in my book, this decision is good news in clarifying and narrowing Younger's particular application. It hopefully will stop what I regard as Younger Creep--where district court either used Younger to abstain inappropriately or cited it as the basis for abstaining instead of some more appropriate abstention doctrine.
But it might be interesting to consider two recent cases in which the federal court abstained on Younger grounds and how they should play out under the new analysis.First is Tyler v. Commonwealth, where the district court abstained in deference to some potential future family-law proceeding between the girl and the convicted rapist. As a purely private proceeding, that would no longer should be subject to Younger. There also was the underlying state criminal case to which the girl was not a party, but she was not actually seeking to enjoin that proceeding.
Second is SKS Assocs. v. Dart, a 2010 case out of the Seventh Circuit that I use as a problem in the book and in class. The court affirmed abstention from a challenge to the constitutionality of a state court order issued in several pending eviction actions. This is not a criminal proceeding or a civil proceeding involving state enforcement efforts. And the challenge was not to the statutory source of the order, but to the order itself, so this should not fit within the third category. In class, I suggested that Rooker-Feldman was the proper basis here.
In both cases, I would argue that Rooker-Feldman is the appropriate basis for the court to decline to hear the case. Even if I am wrong about that, Sprint should make clear that Younger is not.
SCOTUSBlog: Argument in Ray Haluch Gravel
Monday, December 02, 2013
SCOTUSBlog: Attorney's Fees and Final Judgments
I have a new SCOTUSBlog preview on next Monday's argument in Ray Haluch Gravel Co. v. Central Pension Fund, which considers whether a district court judgment that leaves contractual attorney's fees unresolved can be a final and appealable judgment for purposes of § 1291 and Federal Rule of Appellate Procedure 4.
Tuesday, November 26, 2013
More pleading/qualified immunity
The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.
The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel held that the amended complaint sufficiently pled viewpoint discrimination.
That the Court took the case does not bode well, but I suppose I could be surprised.
§ 1983 and the 11th Amendment
I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.
It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.
The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.
Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.
There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.
Friday, November 22, 2013
Rooker and Younger
In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16 years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.
Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.
In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.
The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.
The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.
The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.
The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.
At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.
Wednesday, November 20, 2013
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Tuesday, November 12, 2013
Teaching procedure from bad procedure
Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.
Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.
The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."
Tuesday, November 05, 2013
You can't make this stuff up, § 1983 edition
So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?
Monday, November 04, 2013
The rhetoric of qualified immunity
I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.
What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.
Saturday, November 02, 2013
Stays and appellate benchslaps
In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.
In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.
A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.
Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.
Friday, November 01, 2013
Injunctions and stays
Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.
Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.
Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.
Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.
Sunday, October 13, 2013
The justices talk procedure
If you want to hear SCOTUS talk intelligently about procedure, have a listen to last week's argument in Atalantic Marine Construction Co. v. District Court. The issue in the case is whether, when a party files someplace in violation of a contractual choice-of-forum provision, the issue is properly considered as improper venue under FRCP 12(b)(3)/§1406 or as a request to transfer venue under § 1404. It discussed venue, forum non, improper venue, 12(b)(6), and the interconnections among all of these, in a very intelligent and easy-to-grasp way. And the argument repeatedly discussed a law professor by name--Stephen Sachs of Duke, who wrote an amicus brief arguing for a third way at this question. Leading the way were Justices Ginsburg and Kagan (no surprise) and Alito; on the other hand, Justice Breyer again asked questions that suggest he does not know (or want to know) anything about civil procedure.
Although I expect the Court to have decided the case by the time I reach venue next semester, I may assign the argument as a way to show this stuff fits together.
Tuesday, October 08, 2013
Baseball and removal
Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.
But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.
Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force. But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."
It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.
Monday, September 23, 2013
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Tuesday, September 10, 2013
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Friday, September 06, 2013
What is the civil justice system for?
The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.
Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.
Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally). At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.
Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.
Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.
Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.
Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.
Saturday, August 31, 2013
Tragic cases and Fed Courts
Dahlia Lithwick wrote last week about two cases--one in Montana, one in Massachusetts--demonstrating how unseriously many judges take rape and the tendency to blame even teen-age victims or to place victim and perpetrator on similar moral footing.
The Massachusetts case has lead to a § 1983 action in federal court. According to the complaint, a 14-year-old girl, identified as "H.T.", became pregnant as a result of her rape by a 20-year-old. The man pled guilty in 2011 and was sentenced to 16 years probation. He also was ordered to initiate proceedings in family court, declare paternity, and comply with the family court's orders regarding child support, visitation, etc. The victim opposed this, not wanting to have any sort of relationship or contact with her attacker; she attempted to challenge that order, but the SJC of Massachusetts held that she lacked standing. The family court ordered him to pay child support, whereupon he sought visitation, then offered to withdraw that request in exchange for not having to pay child support. The complaint seeks to enjoin the criminal-court order as violating a host of constitutionl rights, including substantive due process, procedural due process, First Amendment, and Equal Protection.
The case demonstrates that, for better or worse, within every horrific and gut-wrenching tale of wrong lies a course of legal doctrines to be navigated. No matter the tragedy, process remains part of the system for seeking justice. And for anyone looking for a Federal Courts/Civil Rights question or discussion topic, this case has a semester's worth of stuff.
• The named defendant is the Commonwealth of Pennsylvania Massachusetts (sorry--got my commonwealths mixed up), which is not permissible, since a state is not a person for § 1983 purposes (and state sovereign immunity lurks in any event, much as I wish it didn't). This is an overlooked aspect of the Court's 11th Amendment doctrine--it is not that states cannot be sued for damages, states cannot be sued by name for any relief. The case must run against the responsible state official, under Ex Parte Young. It is not clear who the plaintiff should sue her. One possibility is the state criminal-court judge who entered the order being challenged. But then the extra clause of § 1983 (added in 1996) kicks in; this requires a plaintiff suing a judge to first seek a declaratory judgment, only able to get an injunction if declaratory relief is either unavailable or ignored. Another possibility is the executive office responsible for enforcing court orders, such as the county sheriff. But a blanket suit of the state qua state (unfortunately, in my view) will not work. Although query whether the state will bother raising this issue, as the plaintiff would simply find the proper defendant and amend, so the issue only delays things.
• The obvious problem for the plaintiff is Rooker-Feldman, since the federal lawsuit is alleging a consitutional violation caused by the state-court judgment. The complaint anticipates this, insisting that RF does not apply because this is not a case in which a "losing-party [sic] seeks review of a judgment entered in state court." It is true that H.T. is not a state-court loser (the term used in these cases), since she was not a party to that litigation. But she is adversely affected by a state-court judgment, so this strikes me as quibbling semantics. The idea behind Rooker-Feldman is that the appellate process, not federal civil litigation, should be used for correcting erroneous or unconstitutional state-court judgments, regardless of whether we call the person challenging it a state-court loser or an adversely affected party. The obvious and proper move in light of Rooker-Feldman should have been to seek cert to SCOTUS from the SJC decision.
• But the SJC resolved the case on purely state-law grounds--that H.T. lacked state-law standing to challenge the order. So perhaps SCOTUS would not have jurisdiction here because the state-court decision rests on an independent-and-adequate state grounds (state-law standing is not the same as Article III standing). On the other hand, the complaint explicitly challenges the standing component as part of the basic order, alleging that the refusal to let her challenge the criminal-court order violates due process and the First Amendment. That argument would be available in a cert petition. Independent-and-adequate should not preclude review where the supposed I-and-A ground itself (lack of standing) is unconstitutional in this case. The cert. path seems to remain open.
• There is a potential argument that this case is not ripe. The injury to H.T. is the forced relationship with her attacker. But that forced relationship comes from the family court proceedings, and presumes that the family court orders or permits some relationship. But we do not know how that litigation will play out. Perhaps the family court would reject the man's efforts to establish a relationship with the child or with H.T., in which case the constitutional harm will not arise. H.T. also is worried about the rapist playing games in family court (such as threatening to seek visitation), although the family court might be equipped to handle any such abusive efforts. The point is that the harm results from what the family court does, not the criminal-court order. So we may just have to wait to see what the family court does. In addtion, publicity over the case also triggered introduction of legislation in Massachusetts that would prohibit rapists from having any contact with children resulting from the rape. The possibility of future legislation does not alone render a case unripe. But it does demonstrate that there are a lot of uncertainties about what will happen in family court.
• Of course, once the family court does make a ruling (such as the one ordering child support), Rooker-Feldman kicks back in and the family court order is challengeable only through the appellate process. And we are back where we started.
• H.T. also alleges a constitutional injury from the threat of potential family-court litigation, which requires time, money (to hire an attorney), and stress for the next 16 years. She is concerned that she will be running in and out of family court for the next 16 years to deal with his games. And this injury is caused by the criminal-court order. But is avoiding potential future litigation a cognizable constitutional right?
None of this is to minimize the harm H.T. has suffered and may continue to suffer. Nor do I doubt the sheer lunacy of a court ordering (much less allowing) a convicted rapist to potentially be involved with his victim and the child produced by the rape. But the case shows that the seemingly esoteric and theoretical issues floating around a standard Fed Courts or Civil Rights course actually have some teeth. And law students (as future lawyers) must know how to navigate them. And in a set of facts this disturbing, it helps us to remind students that they cannot get caught up in emotion, but often must keep their eyes on the procedural ball.
Friday, August 30, 2013
Preparing to Teach Open Source Civ Pro Part III: Compiling the Materials (or, Why I Have the Best RAs in the World)
In my previous posts I have explored why I am moving towards an open source casebook for civil procedure and the materials I am using. In this post, I'll outline the process for editing and compiling nearly 500 pages of cases and statutes in just one summer! I'll also include my table of contents at the end, for anyone who is interested in seeing what made the final cut. Next week I'll look at a different model, and spotlight the fabulous playlist that Glenn Cohen has made for his open source civ pro class at Harvard.
How to Put Your Own Materials Together ... And Still Get Your Summer Writing Done!
1. Have Fabulous Research Assistants
The most important thing to note is that I had four part-time research assistants working with me this summer. Each of them had full-time summer jobs elsewhere, so I want to give a public shout out to the students who worked incredibly hard with me to make this possible. I could not have undertaken this project without them.
2. Compile a List of Cases
I began with the syllabus I had been using for the past few years. I canvassed other casebooks and syllabi to prune some cases and add others. I also added a few cases that are not traditionally in casebooks. For example, I decided to begin my course this year with a fabulous default judgment case in which a trial court entered a $1.26 billion default judgment against Pepsi. (Joyce v. Pepsico, Inc., 340 Wis.2d 740 (2012)).
Although the judgment is ultimately vacated, there are some fun personal jurisdiction and statute of limitations issues along the way, and it was a fun intro case for the class. Well, fun by my standards...
3. Assign Cases to RAs
Each RA received a portion of the syllabus and a copy of the student treatise. I had them read the relevant sections and comment on the cases I had added and deleted from previous years.
4. RAs Preliminary Edit
Each RA downloaded the text of their assigned cases. I instructed them to excise superfluous text (syllabus, extended caption, parallel citations, issues not relevant to our course), and then give a shot at their own edit. I made several casebooks available to the RAs so that they could see how different casebook authors have edited cases. I indicated which books had longer and shorter edits, and asked them to aim for a middle ground. Not only did this save me a good deal of time, but I learned a lot from what they chose to include or exclude from the edits. It was a good window into the minds of my students. The RAs also found and edited the relevant rules and statutes.
5. My Edits
The RAs returned the cases to me with all of their edits in "track changes." I accepted many of their changes and added some of my own, often including short summaries of sections or opinions that I omitted from my edits.
I then compiled the final product! It was printed and available for students to purchase for $20.35 in the bookstore. Alternatively, they could download the materials from the class web course and print it on their own.
7. Moving to Other Online Formats
I am slowly moving towards utilizing online formats that will make sharing, editing, and mixing my syllabus easier. This is Glenn Cohen's approach on the H2O system, and I'll discuss the pros and cons of that method next week. I hope that by next year I will also have my materials available in this format.
Thursday, August 29, 2013
Settlement in NFL concussion lawsuit
The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.
Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?
Tuesday, August 20, 2013
Teaching Open Source Civ Pro Part II: The Materials I'm Using
This week I will begin teaching civil procedure without a traditional casebook. In my last installment, I wrote about why I've decided to "go rogue." In this post I'll recap the process I used to choose and produce my materials. My materials for this semester are: (1) A course pack "case book " that I edited; (2) A statutory and rules supplement course pack that I edited; (3) a student treatise; (4) a book of experiential learning exercises.
After the jump, I'll discuss the various methods I considered and why I chose the materials that I did.Possible Methods for Teaching Open Source
1. The Bare Bones Method: No Materials But a Syllabus
One possibility is not to give students any materials at all, but simply distribute a syllabus and tell the students to download the relevant cases and statutes from Westlaw or Lexis. (Derek Tokaz made this suggestion as a comment to an earlier post). While there is some appeal to this idea, I felt it was not right for this class:
(a) because I am teaching first semester 1Ls, I do not expect them to enter the class with Westlaw and Lexis skills, even ones that seem easy to us like finding and printing cases. I also do not want to add extra stress to their lives.
(b) many cases are far too long, or contain extended discussions of irrelevant issues. I figured that by the time I explain "read this, but don't read that" for each of the cases, much of the simplicity of the "find and print" approach would be gone. I also didn't want students to "compete" with each other by reading more of each case.
(c) students would still have to print out the cases, and printing costs money. So this method is not quite as "free" yet as we would like. Which brings me to the next point...
2. Edit the Cases and Statutes/Rules and Post Them Online
The advantage of this approach is that it's still completely free, and it solves the problem of unedited cases. I decided that this would be part of my approach, but was not completely sufficient.
(a) First, as I edited the cases, I began to realize that I needed interstitial material. While I'm moving away from from the extensive "notes and questions" approach of some casebooks, there are situations where it is useful to summarize or introduce material, or expose students to synopses of related cases. And sometimes I'd just like students to read about an area of law without reading a principal case, such as when I teach about the mechanics of service of process.
(b) The students would still need to print out the materials themselves. This point was a difficult decision for me. When I first thought about using open source materials, I imagined that students could use their tablets or e-readers. But there are some barriers. First, I do not permit students to use laptops in the classroom (that's a different debate), and I worried that the tablets could be used for distracting non-case reading purposes. More importantly, I realized that if I wanted to give an open book exam, I would need to make all of the materials available in print format because the students cannot bring tablets or e-readers to the final exam. Now, one solution to these problems is to just permit laptops and give a closed-book exam. These are changes I might consider for future years. For now, I'm sticking with my no laptop and open-book exam policies because I have had such positive experiences in the past.
(c) Not all materials are actually open source. This was not a big issue for civil procedure. If, however, I used this approach for other classes there could be problems. For example, when I teach International Business Transactions, some of the materials found in the statutory supplement are not in the public domain (think Incoterms or the UCP, both published by the International Chamber of Commerce).
3. Create a Course Packet and Post Materials Online
To solve these problems, I compiled the cases into one course packet and the statutes and rules into another. The students now have a choice: they can buy the packets at the bookstore, or print them at home if that is easier and cheaper for them. They could even use a tablet for reading and then print the sections with their own annotations. I have posted the coursepacket as a large pdf file, as well as several smaller files to enable easier printing and downloading.
4. Use a Student Treatise as a Secondary Text
Here's where I begin to depart from full-fledged adherence to open source. For reasons described above, I am not yet ready to teach exclusively from principal cases. So I decided to supplement with a student treatise. Here are the advantages:
(a) Cost. Although the students must purchase the book, it is much cheaper than a case book ($79 new, $30-ish used or rented).
(b) Context. The student treatise provides the context and summaries of areas that I do not expect students to learn from reading principal cases.
(c) No More Hide the Ball. I almost always recommend a good treatise or horn book to my students. I think we have moved past the days in which there is a classroom fiction that the students don't know the law until it is magically revealed to them exclusively through socratic dialogue about principal cases. I would much rather have them read a comprehensive and comprehensible account of an area of law in a treatise so that classroom discussion can focus on the nuances and difficulties in the caselaw itself. In this way, I hope that classroom time will be less about the "punchline" of every case because the students have access to thorough discussions of the black letter law in their reading. I have assigned my students Richard Freer's Introduction to Civil Procedure (Aspen Student Treatise Series), a text with which many former students have had a positive experience.
Perhaps in the future I will begin to write my own summaries and introductions so that I can move away completely from requiring purchased texts. For now, I am comfortable asking students to purchase a text that is cheaper than a casebook, and one that many students might buy anyway as a study aid.
5. Use an Exercise for Experiential Learning
This semester I am teaching a small section of procedure. We have extra time, and I am using that time to teach discovery through a simulation exercise. While I would love to create my own simulation, I have opted for one that has been "road tested" and will use Michael Vitiello's Bridge to Practice book. Although it's not completely relevant to the open source problem (as I would only use this for a smaller group), I wanted to fully disclose all of the purchases that my students must make.
So, there you have it -- a complete account of my desire to totally ditch the casebook and the reality that I was not able to get all the way to "free" on the first try.
Wednesday, August 14, 2013
Preparing to Teach Open Source Civ Pro Part I: Why I’m Doing It
This semester I will be teaching civil procedure without a casebook and blogging about the trials and tribulations of this approach. As the semester approaches, I’ll be writing about my preparations. This post will be about why I’ve decided to take the plunge. Part II will be about the materials that I’m using, and Part III will be about how I put the materials together. My reasons for embarking on this project appear after the jump.
It shouldn’t surprise anyone that this tops the list of reasons to go casebook-less. As other bloggers have noted, many casebooks have broken the $200 barrier. Statutory supplements often cost between $35-$40. Add this to the hornbook and commercial outline or two, and students can easily spend $300-$350 per course on books. I am mindful of these costs, and to the extent that I can minimize them for my students, I would like to do so. As I will explain in future posts, I was not able to get all the way down to completely free materials, but the list price for the books (including a course packet) that I have ordered come in at under half the price of the materials I have used in the past.
2. Many Materials Are Available for Free
This reason is closely related to the cost issue, but it is worth making the separate point: a large chunk of the materials that we assign to our students are public. So why should students pay for this? Casebooks do add value (some more than others) in the form of editing, summaries of law, and giving historical context. If anything, I have an even greater appreciation for this value-added after a summer of editing my own materials. Still, I am left with the feeling that if my primary text consists of cases, and those cases are freely available, why should we charge so much to read them?
I hope that my work here, along with the work of other such as Glenn Cohen will be the beginning of a collaborative effort to use open source and creative commons to provide our students with high quality materials at a minimal cost.
3. Flexibility for Students
I have made the cases, rules, and statutes available to my students as PDFs, and have also printed them as a course packet that they can purchase. I will also begin to make the materials available on Harvard’s H2O platform. I hope that this will allow some freedom from schlepping the whole book each day, or perhaps the ability to mark up the text online or on a tablet. (Ultimately, though, the students will need some sort of a hard copy of the materials because I give an open-book exam. I’ll delve deeper into this problem in a future post).
4. Flexibility for Me
Putting together my own materials allows me to choose the cases, order them, and present them to students in a streamlined format. Moreover, I hope that this format will allow me some flexibility within the curriculum. For example, I might choose to use shorter edits of some material and longer edits of others depending on my focus from year to year. Swapping cases in and out of the curriculum will be easier than changing casebooks or providing a large number of handouts.
5. Collaboration and Feedback
My hope is that I will learn from others who are embarking on similar projects, that I can borrow from their materials and edits, and that they will borrow from mine. I hope that I will learn from my students about what works well and what does not. In that spirit, one of the reasons that I am blogging about this experience is to get the comments, feedback, and suggestions from prawfs readers!
Because, really, would I have made this decision in any state other than a caffeine-fueled brainstorm? Probably not. But I’m glad I’ve chosen this path, and I look forward to seeing how it all turns out.
Tuesday, August 13, 2013
Jurisdiction, merits, and Dodd-Frank
A couple of years ago, tipped off by a partner at Wachtell and Prawfs reader, I wrote about a potential jurisdiction/merits confusion with respect to § 929P(b) of the Dodd-Frank Act. That provision sought to overturn Morrison v. National Australia Bank and expand the extraterritorial reach of the Securities Acts, but did so in jurisdictional terms by identifying two situations in which district courts "shall have jurisdiction over an action or proceeding brought or instituted by the [SEC]."
We now have a decision from the Northern District of Illinois wrestling with these issues, although ultimately declining to resolve them. The defendants filed a 12(b)(6), arguing that the SEC failed to allege sufficient facts to meet the Morrison standard and that § 929P(b), being solely jurisdictional, did not expand the law's substantive reach. Ultimately, the court denied the motion, finding that the complaint stated a claim, regardless of whether the controlling substantive standard came from Morrison or from § 929P(b) understood as a merits statute controlled.
Nevertheless, the court engaged on the jurisdiction/merits question and at least hinted that the better view is that § 929P is jurisdictional. On one hand, the plain language suggests § 929P is jurisdictional; it speaks in expressly jurisdictional terms and appears in the statute's jurisdictional section. On the other hand, the court acknowledged several competing considerations: 1) avoiding interpretations that render a provision superfluous--since the Securities Act already has a jurisdictional provision and since Morrison itself acknowledged that the district court had jurisdiction over that claim, § 929P serves no purpose if it is solely jurisdictional; 2) legislative history, particularly statements by a sponsor indicating a desire to expand extraterritoriality; 3) avoiding absurd results, namely the conclusion that Congress granted district court jurisdiction (jurisdiction they already had) over a class of claims that were going to be dismissed for failure to state a claim. But the court at least seemed inclined to give the benefit of the doubt to the plain language.
Stay tuned. Perhaps a better case, one that actually will have to decide the question, is somewhere in the pipe.
Saturday, July 20, 2013
Procedure of marriage equality, ctd.
If the wrangling over Prop 8 teaches us anything, it is that more students need to take Federal Courts and Remedies. In addition to the action filed by Prop 8 supporters in the California Supreme Court seeking clarification of the continued legal status of Prop 8, in light of another provision of state law requiring that state officials enforce state laws until there is a "definitive" decision invalidating the to-be-enforced law. Meanwhile, yesterday, the clerk-registrar of San Diego County filed his own petition seeking clarification, also arguing that, as an independently elected official, he is not bound by AG Kamala Harris' interpretation. (H/T: A commenter to my earlier Prop 8 post). The clerk asked the state court to stop the issuance of licenses to same-sex couples until a final determination (although the Supreme Court denied a similar request from Prop 8 supporters last week, so don't expect this one to have any more success). And the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court.
Has the state gone to the district court seeking to enjoin the state-court action under the "protect or effectuate its judgments" exception of the Anti-Injunction Act? And if not, why not? The state-court action, in part, functionally asks the court to interpret the scope and effect of the federal injunction (does it protect all couples? Does it apply to all officials in all counties)?, which seems like the district court's job. County officials (who have been working closely with Prop 8 supporters and similar organizations) have been very careful not to simply refuse to issue licenses, thus risking either a contempt citation in Hollingsworth or a new § 1983 action in which Hollingsworth might have either stare decisis or even (although less likely) preclusive effect. Clearly, they want to keep interpretation of the injuntion out of federal court, especially in light of the sense among many (including me) that the injunction is overbroad.
Of course, state-wide application depends on state officials (who were named as defendants) controlling unnamed county officials; faced with a motion under § 2283, might the district court have to certify that question back to the state supreme court? Or worse, abstain on a matter of ambiguous or complex state law?
Update: Kaimi Wenger (who was quoted in the linked article) expands on those comments. Kaimi discusses something I wanted to get into--whether the petition really is a request for procedural clarification or an act of conservative political theatre. He points out that the county clerk worked with a conservative religious organization and that the filing contains "broad social policy and political-usurpation language that seems extraneous to the procedural issues.' Actually, that complaint can be applied to the newspaper story itself, which intersperses discussions of the filing with heated rhetoric about the substance of marriage equality from both sides of the debate.
Monday, July 15, 2013
Commenting on the merits
Andy Koppelman argues at Salon that by joining the Chief's majority in Hollingsworth, Justice Scalia functionally cast the deciding vote to allow same-sex marriage throughout California. Koppelman games out the internal workings of the Court to figure out why the Court did not comment on the (arguably erroneous) overbreadth of the district court's injunction. He writes the following:
Koppelman then wonders why Scalia did not insist on such language. He concludes that Scalia and Roberts both recognized it might have split the five-justice majority, since Ginsburg, Breyer, and Kagan might have gone off with a separate opinion, perhaps one reaching the merits and recognizing a broad right of marriage equality that might even have garnered five votes. It's an interesting theory on how the justices negotiate opinion drafting.
Roberts’ opinion could easily have included some language casually noting in passing that the district court’s decision properly applies only to the two couples who brought the suit, and that the more general question was not within the district court’s jurisdiction. (Even if there was no standing to appeal, Roberts was not obligated to describe without comment an overbroad injunction.) He could then direct further proceedings in the 9th Circuit consistent with this opinion. That would have forced the lower courts to refashion the injunction to have nearly no effect.
The problem, I think, is with Koppelman's underlying premise. Roberts could not have compelled the lower courts to refashion the injunction, while also finding no standing to appeal. The propriety and scope of the injunction was never properly before either SCOTUS or the Ninth Circuit because there was no party to properly present that issue to either court. So the Court could not make any comment that would be anything more than dicta or would in any way have compelled the district court to rethink the scope of the injunction. I would add the Scalia would be particularly attuned to this point, as he wrote the opinion in Steel Co. rejecting the doctrine of "hypothetical jurisdiction" and the notion that a court can have anything meaningful to say on the merits in the absence of standing.
So one additional reason Scalia did not insist on the language Koppelman suggests may be that, believing (whether genuinely or strategically) that standing was lacking, Scalia also recognized that the Court lacked any power to meaningfully comment on or alter the injunction.
Sunday, July 14, 2013
The NAACP and other groups are urging the Obama Administration and DOJ to file federal civil right charges against Zimmerman, which has right-wing sites abuzz and screaming about double jeopardy. But what law could he be charged under? Not § 242, because Zimmerman did not act under color of state law (thus depriving the right wing of its most obvious demagogic analogue--the LAPD officers who beat up Rodney King). Also not § 241, because Zimmerman acted alone (and I'm not sure a purely private conspriracy still is possible under current understandings of § 5 of the Fourteenth Amendment). The only possibility is the federal Hate Crimes statute, which prohibits anyone, even if not acting under color of law, from willfully causing bodily injury because of the victim's race. If so, was that statute violated here? Assume Zimmerman followed and shot Trayvon Martin because Martin seemed "threatening" or "dangerous" and that Martin seemed "threatening" because of his race. Is that the same as following him "because of [his] actual or preceived race"? Also, how does federal law treat self-defense?
The other likely development is a civil lawsuit by Martin's family, which is being considered and was mentioned in the comments to Dan's first post. A civil action is, of course, governed by a lower standard of proof, involves more extensive discovery, and required testimony (deposition and trial) from Zimmerman himself. It also brings the state Stand Your Ground Law, and the pre-trial immunity it provides, back to the forefront. (By the way, if the civil suit were brought in federal court, this would be an interesting Erie hypo).