Archive for the ‘Civil Procedure’ Category
Is Ricci a Significant Procedural Case?
posted by Michael Zimmer
Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.
Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?
Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:
“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”
Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?
November 15, 2009 at 9:42 am
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Employment Law
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The Employer’s Strategy in Gross v. FBL Financials
posted by Michael Zimmer
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).
For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.
The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.
The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.
For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.
November 4, 2009 at 10:43 am
Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized
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A Civil Procedure Curriculum Challenge
posted by Spencer Waller
I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.
I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.
I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.
I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.
All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works. Read the rest of this post »
October 12, 2009 at 9:56 am
Tags: ADR, Civil Procedure, discovery, Erie, federal rules of civil procedure, litigation process, personal jurisdiction, pleadings, subject matte jurisdiction, summary judgment, Twombley
Posted in: Civil Procedure, Education, Law Practice, Law School (Teaching), Legal Theory, Teaching
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The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid
posted by Spencer Waller
By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.
A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.
The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.
On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.
By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.
To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.
I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.
October 6, 2009 at 9:55 am
Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court
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Iqbal Empirics
posted by Jon Siegel
In response to my post yesterday, my colleague Orin Kerr asks whether Iqbal might lower the high costs of civil litigation by reducing the use of costly mechanisms such as discovery and summary judgment motions. This is a good question.
In analyzing Orin’s question, the first thing to notice is that, while Iqbal might save some costs, the decision also imposes costs. Because of Iqbal, pleading becomes more expensive. Not only is it more expensive to draft the initial complaint, because no one knows any more exactly what needs to be in the complaint, but, as numerous cases already show, Iqbal is returning us to the days when a case begins with “polishing the pleadings”: the defendant moves to dismiss, the court grants the motion with leave to replead, the plaintiff tries again, and we may go around multiple times (possibly including an appeal) before the plaintiff has a complaint that passes the applicable standards. And then we get to the costs of discovery and summary judgment.
The view of the drafters of the Federal Rules (particularly Dean Clark, who was very clear on this point) is that polishing the pleadings is a waste of time and money and we might as well get right to the other mechanisms that we’re just going to get to anyway, after polishing the pleadings.
So it’s not as simple as saying that Iqbal might save costs. What’s going to happen is that Iqbal will save some costs while imposing different costs. And I think the biggest cost that Iqbal is meant to save is not so much disovery costs per se, but the costs of settlements coerced by plaintiffs bringing doubtful claims against defendants who end up settling to avoid litigation costs (this is suggested by the Court’s opinion in the predecessor case of Bell Atlantic v. Twombly). The ultimate question is whether Iqbal’s will save or impose costs on balance.
As I have previously acknowledged (before I gained fame and fortune on Concurring Opinions) this is an empirical question — and one that would be quite difficult to answer reliably. The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years. But really, we should admit that it is at least possible that Iqbal would produce savings in the long run.
But I am inclined to doubt it. It seems more likely that Iqbal will just end up raising costs, by adding more pleading costs to discovery costs that will end up getting incurred anyway. And more important, Iqbal seems unfair. As some lower court cases are showing, Iqbal is trapping some plaintiffs in a Catch-22: they can’t successfully plead their cases because they don’t have information that they can’t get without discovery, which can’t get started until they successfully plead. (I suppose this will result in some savings, but again, I question whether there will ultimately be net savings.)
Given that it’s very difficult to tell whether Iqbal will save or cost money in the long run, I am inclined to say that we should continue the fairer system of letting cases get started without insisting on too much detail in the pleadings. But I would be open to rethinking the matter if anyone could come up with good empirical cost data on Iqbal.
September 9, 2009 at 6:50 am
Posted in: Civil Procedure, Uncategorized
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The Public and Private Goods Produced By Litigation
posted by Dave Hoffman
Eugene Volokh (among many others) recently posted the opinions in Klein v. Amtrak, the now famous EDPA unpublication case involving a settlement that led to the vacating of eight defense-unfriendly district court opinions. Although commentators across the web seemed surprised, in my experience the practice of asking a judge to vacate an opinion that produced a settlement is fairly common – this particular instance is only a small variant on the ordinary case. But Klein provides the opportunity to reflect on some of the unexpected benefits that we get from our ridiculous court system.
The obvious one is that judicial opinions are the public good that the parties prompt society to buy. The price we would pay for any kind of litigation reform would be fewer public decisions, and thus more uncertainty of the kind that unpublication like Klein promotes. The Third Circuit in particular was known for years for having very thin law – indeed, the late Chief Judge Eddie Becker of the Circuit famously led a one-man crusade against the dearth of law by writing copious dicta. The certainty that we get from having opinions strongly suggests that we should resist private attempts to keep the law secret – and should be similarly skeptical of the courts’ unwillingness to free PACER. Here, it appears merely that Judge Stengel asked WL and LEXIS to remove his opinions from his databases. Thus, like 80% of all substantive orders, they are on the docket, but aren’t available to the general public.
There’s an additional private benefit that accompanies litigation which is less illuminated by Klein: the parties get to communicate with one another. Given a regulatory regime that prohibits competitor contact, litigation can be the best way for companies to talk to one another (through discovery and signalling about which positions to take). That litigation-mediated-communication is one reason why some companies might prefer to continue to fight in the public system, rather than in commercial arbitration, where their ability to get discovery may be limited. Again, this isn’t to say that all lawsuits are worth the time and expense that the public invests in settling them, but it does suggest that litigation reform needs to account for these substantial litigation spillovers.
August 20, 2009 at 8:50 pm
Posted in: Civil Procedure, Empirical Analysis of Law, Government Secrecy, Sociology of Law
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RECAP Already Proving Its Power?
posted by Deven Desai
A couple days ago I blogged about RECAP, a system that aims to enhance government transparency by increasing access to court documents. RECAP does this by making it easy for people to share PACER documents after they have paid for them. Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.
In fact, one blogger has decided to post links to many of the vacated opinions, and, yes, RECAP allowed him to do that. In his view, “a court can ever truly ‘unpublish’ a decision, and that law is made every time a court decides any issue.” I am not so sure that is correct. I do think, however, that courts should be more clear as to why they take such actions. Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project. It preserves some truth.
If anyone has information and thoughts about the rules, procedures, and theories allowing a judge being able to unpublish an opinion, please share them.
August 19, 2009 at 1:55 pm
Tags: precedent, torts, unpublish an opinion
Posted in: Civil Procedure
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Opening Up the Law: Pacer, CITP, and the RECAP the Law Project
posted by Deven Desai
As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.
Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”
In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.
CITP’s Harlan Yu explains:
RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.
In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.
There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.
August 14, 2009 at 6:06 am
Tags: access to knowledge, access to law, open source, PACER, RECAP
Posted in: Civil Procedure, Constitutional Law, Cyberlaw, Intellectual Property, Sociology of Law, Technology, Web 2.0
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Re-reading Iqbal (a new take on the 12(b)(6) wars)
posted by Jaya Ramji-Nogales
My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time! His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .
Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.” Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.
The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)
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August 4, 2009 at 8:28 am
Posted in: Civil Procedure
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The Watchmakers’ Court and Related Curiosities
posted by Michael Madison
This recent New Yorker piece about “Baselworld,” the annual watchmakers’ confab in Switzerland (Patricia Marx, “Face Value,” May 25, 2009) included a throwaway line that I found fascinating. Baselworld is so large that it has its own police force and “a judiciary to settle trademark disputes.” Whoa. Huh?
May 22, 2009 at 6:15 am
Tags: arbitration, baselworld, private ordering, trademark
Posted in: Civil Procedure, Intellectual Property
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A Right to Be Punished?
posted by Michael Madison
From the Department of Paradoxes in Sporting Jurisprudence:
Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)
As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.
After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.
That prompts this question: Is there a right to be punished? If so, when, and if so, why?
May 12, 2009 at 1:29 pm
Posted in: Civil Procedure, Criminal Law, Criminal Procedure, Current Events, Jurisprudence
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Open Source Initiative on Google Book Search Settlement
posted by Danielle Citron
As Frank and others have highlighted at CoOp, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries. Robert Darnton describes Google’s book scanning project as nothing short of an attempt to control access to the “single most comprehensive collection of books since the Library of Alexandria.” Authors and publishers brought a class action suit against Google, alleging breach of copyright. Judge Denny Chin is currently considering the class certification motion and the parties’ settlement proposal. In response to wide-spread criticism of the proposed settlement, Judge Chin recently granted a four-month delay to allow more time for discussion and analysis of the proposal.
Superb guest blogger James Grimmelmann has offered thoughtful commentary on the proposed settlement and now is spearheading an open source initiative to garner public input on the controversial proposed settlement. Later this month, Grimmlemann will introduce “The Public Index,” a website that will feature discussion forums, a comprehensive archive of settlement documents and related commentary, and a tool for users to insert their analysis and commentary on individual paragraphs of the proposed settlement. Although the website responds to a lawsuit, it ultimately can provide Congress and agencies insight into the issue should the court reject the settlement.
The proposed settlement raises issues of great importance, from the contours of the fair use principle and Google’s potential monopoly over the largest digital library (remniscent of Frank’s testimony concerning the failed Google-Yahoo deal) to the absence of due process protections of orphan works (i.e., works for which it is impossible to locate the appropriate rights holders to seek permission to digitize) whose rights would be adjudicated if the class is certified and settled. This description merely touches the surface of the issues at stake. Pamela Samuelson has important commentary on the issue as do many others. Suffice it to say that the Public Index Initiative will no doubt be an important resource for the court (and possibly the legislature) in addressing this perplexing issue.
May 6, 2009 at 3:57 pm
Posted in: Civil Procedure, Consumer Protection Law, Google & Search Engines, Intellectual Property, Technology
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Should We Have Professional Juries?
posted by Daniel Solove
According to Legal Profession Blog:
The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”
The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.
What should one conclude from this case?
The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”
But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:
I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .
Additionally, jurors are usually prohibited from taking notes. . . .
In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).
The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?
Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.
March 20, 2009 at 11:04 am
Posted in: Civil Procedure, Criminal Law, Empirical Analysis of Law, Law Practice, Tort Law
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Sometimes You Just Cannot Sue
posted by Danielle Citron
According to BBC News, the suit entitled Ernie Chambers v. God has met its maker. Nebraska state senator Ernie Chambers sued God in federal district court, seeking a permanent injunction to prevent “death, destruction and terrorisation.” The complaint alleged that God had threatened the plaintiff and the people of Nebraska and had inflicted widespread death and destruction “upon millions of the Earth’s inhabitants.” The court dismissed the case on the grounds of insufficient process: because the defendant has no address, legal papers cannot be served. The court apparently rejected the plaintiff’s argument that “since God knows everything, God has notice of the lawsuit.”
October 16, 2008 at 1:36 pm
Posted in: Civil Procedure
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News for Civil Procedure Fans
posted by Danielle Citron
During the fall semester, my civil procedure class covers personal jurisdiction. While most personal jurisdiction cases tend towards the staid, Calder v. Jones provides some possibility for fun. As my comrades in civil-procedure arms will know, the case involves a defamation suit brought by Shirley Jones, the mother from the Partridge Family. Every semester, this connection has great promise to generate some good cheer about the case, but of late I have been disappointed. This year, I desperately asked: “Don’t you remember the Music Man? or the Partridge Family?” (I thought about singing “I think I love you” but thankfully I ignored that foolish impulse). All I got was blank stares, a clear sign that I am helplessly unhip. My disappointment, however, may come to an end: NBC has just announced plans to reinvent the Partridge Family for prime-time television. Now, I just have to hope that my future students tune in. Amidst all of terrible news about the economy, this may lift spirits, even momentarily for civil procedure fans.
October 1, 2008 at 9:17 am
Posted in: Civil Procedure
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GMAC v. HTFC: Update on the World’s Worst Deposition
posted by Dave Hoffman
I’ve blogged before about GMAC v. HTFC, criticizing Judge Robreno’s contempt ruling against attorney Joseph Ziccardi:
The big picture question here is the degree to which attorneys should be punished for failing to affirmatively prevent their clients’ incivility. Some punishment of this client is certainly warranted. But punishing the “mild-mannered” solo practitioner attorney as if he were equally culpable goes too far. I hope that the Court walks it back a bit.
Guess Judge Robreno isn’t a reader of the blog. On August 13, he issued a memorandum and opinion denying the motion to reconsider his judgment. (Read Part I and Part II). The gist, putting aside the high bar for reconsideration & the procedural objections, is that the Court found it appropriate to fine Ziccardi $30K for failing to stop his client from being obstructive at the deposition, even while accepting that he had vigorously counseled his client “offline” to behave. Ziccardi’s silence during the deposition was, per se, sanctionable.
Appellate standards for review of discovery orders being what they are, I guess that Ziccardi won’t prosecute an appeal, but this decision strikes me as overreaching.
August 20, 2008 at 4:33 pm
Posted in: Civil Procedure
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Monster Cases
posted by Dave Hoffman
Here’s a challenge: what’s the oldest active litigation pending in the federal district courts? I’m coding dockets (as always) and I came across a monster in the Southern District of Ohio that has been pending since 1991 (it’s a CERCLA case relating to the United Scrap Lead site located in Troy Ohio). The government continues, it seems, to seek pockets to pay cleanup costs, seventeen years into the case.
Can you beat that?
(Image Source, Wikicommons, Folio 148v of the Apocalypse of St. Sever (St. Sever Beatus), The horses with heads of lions.)
August 14, 2008 at 2:45 pm
Posted in: Civil Procedure
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Oddities from Docketland
posted by Dave Hoffman
I’m hip deep in my latest docketology project, which, on my end, involves organizing lots of RAs who read many dockets and code them. Apart from the $10/hr wage, and the occasional lunch, the only thing my RA team gets in return for spending too much time on this tedious task is the chance to see a few small nuggets of random nuttiness emerging from the glorious mess that is our litigation system. Take, for example, this claim:
“TRAVEL BARGAINS USA is reasonably assumed to have a Corporate Charter or otherwise a Mission Statement which does not include as part of its ordinary Charter the act of threatening such other business entities as Plaintiff A VACATION 4 YOU, by, for example, stating that You’re up shits creek because if you do not honor the certificates, or refund our money in full on the distributorship, we WILL put you out of business. It will only take a few complaints from people. You started this war, and now you have to deal with ME! “
Of course, such nutbar pleading rarely survives judicial scrutiny. It’s thus a surprise to see one particular set of phrases repeated in over a dozen totally distinct, veil piercing cases:
“Any character assassination will activate Instrumentality Rule and pierce the corporate veil of the United States and all agencies,”and
“All testimony will be without immunity – piercing the corporate veil and Instrumentality Rule.”
My RAs and I have tracked this language, which sometimes appears in a counterclaim and sometimes in the complaint, to The Court Watcher’s document page, which lists a “counter-claim“. That document, in turn, appears to suggest that filers ought to check to see if the other side has violated any particular provisions of the declaration of independance as a way to frame their pleading. I particularly like the following form paragraph:
“Was there a treaty or alliance or letter of Marque and reprisal imposed against you by the public servant? __ Yes __ No Explain”
A letter of marque? Avast mateys!
July 7, 2008 at 1:08 pm
Posted in: Civil Procedure, Law School (Scholarship), Sociology of Law
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Tribal Court Jurisdiction (II)
posted by Max Minzner
Yesterday I argued that Plains Commerce Bank has a number of flaws. Today I want to discuss the fundamental uniqueness of tribal court jurisdiction in the American system. (As a caveat, the following analysis is intentionally brief and leaves out much of the complexity of the field to keep it relatively generally accessible.)
July 2, 2008 at 9:00 am
Posted in: Civil Procedure
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Tribal Court Jurisdiction
posted by Max Minzner
Thanks to Dan and the rest of the Concurring Opinions staff for having me here this month. I’ve been reading the blog since its inception and I’m thrilled to get the chance to be a part of it.
I am a little late to the party, but I thought I would join in the chorus of commentary on last week’s developments in the Supreme Court. I’m talking, of course, about Plains Commerce Bank v. Long Family Land & Cattle Co., the Court’s most recent foray into the jurisdiction of tribal courts, one of my research areas. (I think the court might have decided another case as well).
July 1, 2008 at 3:42 pm
Posted in: Civil Procedure
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