Archive for the ‘Civil Procedure’ Category
posted by Dave Hoffman
Earlier this week, I argued that civil procedure empiricists are spending too much time on the Twiqbal problem. That’s not the same as saying that Twiqbal is an unimportant set of cases. It probably signals an important shift in federal pleading doctrine, and, arguably, some litigants we care about are being shut out of federal court. I mean to say merely this: the amount of attention paid to Twiqbal is exceeding its importance to litigants (over state and federal court). Our focus is being driven largely by data availability and law professor incentives. We can do better.
I’m starting to make a genre of these “people should be writing about X not Y” posts. Boy, that could get tiresome fast! Luckily, no one actually has to listen to me except for the poor 1Ls. In any event, it seemed useful to start a conversation about what topics are more worth writing about than Twiqbal. Use the comment thread below to generate a list and if there’s enough interest I’ll create a poll. To qualify, the topic has to be real-data-driven (i.e., not merely doctrinal analysis, not experimental, etc.); and there must be a way, in theory, to get the data. For example,
- Does law influence outcomes in small claims court?
- How well do choice of law clauses work in state court?
- When do attorneys matter?
- What are the determinants of summary judgment grant rates in state courts?
- Is there a way to get a handle on which cases are being “diverted” to arbitration or “carved-[back]-in“?
posted by Dave Hoffman
Where were we? I know: throwing stink-bombs at a civil procedure panel!
At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz. Florencia Marotta-Wurgler provided comments. The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are. The paper proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone. Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought. A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true? Here are some reasons to doubt it.
Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions. Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time. Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result. Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.” That is, is it possible to turn online T&Cs back into real contracts?
Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample. I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!” Which it is.
After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then, Ghazala Azmat and Rosa Ferrer presented Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care. What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available. Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.
The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives); and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado. I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.
Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan. There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days. I just wish there were more Twiqbal papers.
October 29, 2013 at 8:37 pm Posted in: Capital Punishment, Civil Procedure, Civil Rights, Conferences, Constitutional Law, Contract Law & Beyond, Courts, Economic Analysis of Law, Empirical Analysis of Law Print This Post No Comments
posted by Steve Semeraro
Prior installments in this series addressed the background leading up to the credit card merchant fee class action and the damages provisions in the b(3) opt out class action. This post addresses the injunctive relief provisions that the settlement in In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation styles as a mandatory b(2) non-opt out class action. An upcoming final installment in this series will address the release provisions in the settlement.
B(2) classes are appropriate where the nature of the injunctive relief is such that it will necessarily affect every class member. After setting out the relief proposed in the settlement, I’ll provide some thoughts on whether b(2) is really an appropriate device for this case. Perhaps class action experts out there could weigh in on this issue in the comments.
The injunctive relief set out by the settlement is notable for what is not provided. Nothing in the settlement addresses the core concerns in the complaint about (1) the collective setting of a default interchange fee; (2) the rule prohibiting merchants from rejecting the cards of, surcharging the card transactions of, or otherwise discriminating against some card-issuing banks, but not others; or (3) the rules making it impossible for merchants to route transactions over the least expensive network.
posted by Steve Semeraro
I’d like to thank Concurring Opinions for inviting me to blog about In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation. This eight-year-old multi-district litigation has produced the largest proposed cash settlement in litigation history ($7.25 billion) along with what is perhaps the most extraordinary release from liability ever concocted. It may also be the most contentious. Over half the name plaintiffs and over 25% of the class, including most large merchants (think Walmart, Target) and most merchant organizations, have objected. On September 12, Eastern District of New York Judge John Gleesaon held a fairness hearing to consider the settlement, and the parties are awaiting his decision. An appeal is a virtual certainty.
This post will provide background on the credit card industry pricing mechanisms that led to this litigation, the legal issues in the case, and the structure of the settlement. (You can read more about the history of the credit card industry’s relationship to the antitrust laws here.) In subsequent posts, I’ll separately analyze the damages and relief provisions in the settlement. (If you can’t wait my working paper analyzing the settlement is here.) If there are particular issues that you’d like to read more about, let me know in the comments and I will respond in subsequent posts.
The credit card industry is atypical, but not unique, in that it competes in a two-sided market, i.e., one that serves two distinct customer bases. A card system like Visa provides both a purchasing device (credit cards) to consumers and a payment acceptance service to merchants. (By way of comparison, the legal blogging market is also two-sided. Concurring Opinions provides both an information forum to its readers and a platform to its advertisers.)
posted by UCLA Law Review
UCLA Law Review, Volume 60 Symposium
Twenty-First Century Litigation: Pathologies and Possibilities
A Symposium in Honor of Stephen Yeazell
Volume 60, Issue 6 (September 2013)
Volume 61, Discourse
|Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again||Nora Freeman Engstrom||110|
|Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action||Deborah R. Hensler||126|
|Procedure and Society: An Essay for Steve Yeazell||William B. Rubenstein||136|
|What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict||David Alan Sklansky||150|
|Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law||Katherine V. W. Stone||164|
August 31, 2013 at 4:09 am Posted in: Civil Procedure, Corporate Law, Education, Law Rev (UCLA), Law School, Law School (Law Reviews), Law School (Scholarship), Law School (Teaching), Law Talk, Legal Theory Print This Post No Comments
posted by Danielle Citron
Like so many other law profs, I’m amidst drafting my syllabus for the fall. (It’s an amazing thing to be done with a draft of Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment (forthcoming HUP) and a substantive edit of “The Right to Quantitative Privacy” with my amazing colleague David Gray–now I can turn to my students!) For my civil procedure students, my syllabus is full of tips/questions/hypos, so that they don’t have to turn to commercial outlines (or so I hope). I just wrote a new hypo for subject matter jurisdiction, thanks to terrific guest blogger and civ pro scholar Howard Wasserman whose essay “A Jurisdictional Perspective on New York Times v. Sullivan” served as an inspiration.
Here is the newly drafted hypo for all of my civ pro teacher colleagues. Suggestions for improving it, so welcome!
In-class hypo (or for study group)
The year is 1965. In Southern towns and cities, civil rights protestors are being beaten and intimidated by local police and private citizens. Montgomery, Alabama is no exception. To draw the public’s attention to the mistreatment of civil rights protestors, advocates put an advertisement in the New York Times highlighting the abuse in Montgomery, Alabama and in other Southern cities. Civil rights activists and four Alabama activists signed the ad, which appears here.
A Montgomery, Alabama police official sued the ad’s publisher The New York Times and the four Alabama residents for defamation, alleging that the ad falsely suggested that he was responsible for the physical attacks on civil rights protestors. The Alabama plaintiff brought the case in state court, where with his luck it was assigned to a judge known to be a member of the Ku Klux Klan. The New York Times would like to remove the case to federal court, fearing that the state court judge would be hostile to the Northern newspaper agitating for civil rights. An important fact to consider too is that a year before the plaintiff filed the case, the Supreme Court found that in defamation claims involving public officials and alleged falsehoods about their public duties, the First Amendment requires that the plaintiff proves the defendant published the falsehoods with “actual malice,” that is, knowing they were false or reckless to their truth or falsity.
Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the rationale behind diversity jurisdiction? How does it fit here? Would the constitution permit removal and what about Section 1332? What are other roadblocks to removal under diversity jurisdiction? What about federal question jurisdiction analysis? There is much to think about with the well-pleaded complaint rule and the Grable analysis.
 As a factual matter, I am riffing from the famous New York Times v. Sullivan case and borrowing the substantive findings about the First Amendment from the case; I take the idea for this hypo from Professor Howard Wasserman, “A Jurisdictional Perspective on New York Times v. Sullivan,” volume 107, Northwestern Law Review, page 901 (2013).
August 6, 2013 at 11:26 am Tags: Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the ra Posted in: Civil Procedure Print This Post 13 Comments
posted by Gerard Magliocca
Based on the comments coming out of this morning’s oral argument in Perry, it appears that there are only two possible outcomes:
1. Petitioners have no standing. The Ninth Circuit opinion is vacated.
2. The writ of certiorari is dismissed as improvidently granted. The Ninth Circuit opinion stands.
Now here’s my question. Can a concurring opinion that does the latter count as a “controlling opinion” of the Court for purposes of ascertaining the holding? I guess it does, though arguably it does not because it is not really an opinion at all. Any precedent on that?
posted by Gerard Magliocca
Here’s a question. Article III, Section Two of the Constitution states that “the Supreme Court shall have appellate jurisdiction, both as to law and fact . . . .” The power of factual review was given largely because in maritime cases factual disputes were often critical and resolved on appeal (at least that’s what people said in the 1780s).
What I’m wondering is when was the last time the Justices formally reversed or vacated an opinion because its factual findings were clearly erroneous? This probably happened with some regularity before certiorari jurisdiction was firmly established in the 1920s, but I’m not sure. Any thoughts?
posted by Danielle Citron
In a 6-3 decision authored by Justice Ginsburg (who taught and wrote about civil procedure as a professor at Columbia Law School), the Supreme Court held last week that plaintiffs in securities fraud class actions do not have to prove materiality at the class certification stage. A class of plaintiff shareholders (Connecticut Retirement Funds) alleged that Amgen and its executives misled investors about the safety and efficacy of two drugs in violation of Section 10(b) and Rule 10b-5. One of the alleged material misstatements involved the company’s public statement that the FDA would not be addressing one of its drug’s safety at a particular meeting when in fact it was. Plaintiff’s class action asserted the fraud-on-the-market theory, which creates a rebuttable presumption that securities purchasers relied on publicly available information in purchasing stock in an efficient market. During class certification, Amgen argued that Rule 23(b)(3) required that plaintiffs needed to do more than plausibly plead that a misrepresentation materially affected the stock price. Amgen insisted that plaintiff needed to prove materiality to ensure that the questions of law or fact common to the class will “predominate over any questions affecting only individual members.” Both the district court and the Ninth Circuit Court of Appeals rejected Amgen’s argument.
The Supreme Court affirmed the Court of Appeal’s judgment, holding that proof of materiality is not a prerequisite to class certification in securities fraud cases. The majority noted that Rule 23(b)(3) “requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor the class.” The Court held that plaintiffs need not prove materiality to ensure that questions of law or fact common to the class will predominate for two reasons. The first related to the objective nature of the materiality question. As Justice Ginsburg explained, because materiality is judged according to an objective standard, it can be proved through evidence common to the class. Thus, materiality is a “common question for purposes of Rule 23(b)(3).” For the second, the Court reasoned that failure of proof on the common question of materiality posed no risk that individual questions will predominate. Quite the contrary, explained Justice Ginsburg. Because materiality is an essential element of a 10b-5 claim, a failure of proof on this claim will “end the case for one and all.” The Court determined that to make the plaintiffs prove materiality at the certification stage would effectively be “putting the cart before the horse.” The Court noted,
Although we have cautioned that a court’s class-certification analysis must be “rigorous” and may “entail some overlap with the merits of the plaintiff’s underlying claim,” Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___ (2011) (slip op., at 10) (internal quotation marks omitted), Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. See id., at ___, n. 6 (slip op., at 10, n. 6) (a district court has no “‘authority to conduct a preliminary inquiry into the merits of a suit’” at class certification unless it is necessary “to determine the propriety of certi fication”); Advisory Committee’s 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 144 (“[A]n evaluation of the probable outcome on the merits is not properly part of the certification decision.”).
Amgen suggests that securities fraud class actions are not special vis-a-vis other kinds of classes. It does not appear that they have additional prerequisites than what is already required in certifying other types of class actions. To be sure, securities fraud class action are special but in the way that Congress required in the Private Securities Litigation Reform Act with its heightened pleading requirements, limits on damages, mandatory sanctions for frivolous litigation, etc. In citing Professor Richard Nagreda’s NYU Law Review piece on aggregate litigation (which Justice Scalia relied on in Walmart to flesh out commonality of 23(a)(2)), Justice Ginsburg seemed to reminding us, as she did in the dissent in Walmart, that Professor Nagreda’s point about common injuries and common reasons for them pertained to Rule 23(b)(3), as in Amgen, not the commonality question of 23(a) (as the Walmart majority invoked it for its finding). I’m not sure if Amgen signals a ratcheting back of the common question/common answer inquiry in 23(a)(2), but it may be worth watching and waiting.
posted by Dave Hoffman
For some time, I’ve been mulling over how closely parties can tailor the rules of civil procedure to their own purposes. That is: can parties write enforceable contract terms which state that if they sue each other, the ordinary procedural rules won’t apply? Do such contracts exist? For example, parties might contract to be able to take 5 depositions in a case instead of the default 10. Or they might dispose of the rules of hearsay. The literature on this topic of private procedure arguably started with the Scott/Triantis piece, Anticipating Litigation in Contract Design, and has gotten new momentum from Bone, Kapeliuk/Klement, Dodge, and Drahozal/Rutledge. My contribution, freshly up on SSRN, ended up being slightly more empirical than I’d expected — though I guess this won’t surprise any of our long-time readers. In Why Is Privatized Procedure So Rare?, I try to explain why there is actually so little private procedure in places we’d expect to see it:
“Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.
How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses, and the economic logic which makes them so compelling.
A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform and progressive; they will be punctuated, particularized and contingent.”
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.
Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.
Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.
January 28, 2013 at 10:30 am Tags: Civil Procedure, Civil Rights, Constitutional Law, same sex marriage, standing, Supreme Court Posted in: Civil Procedure, Civil Rights, Constitutional Law, Courts, Current Events, Law Rev (Stanford), Supreme Court Print This Post One Comment
Suing Lance Armstrong for Lying in His Books: the Hurdle of Specificity and Plausibility under FRCP Pleading Rules?
posted by Danielle Citron
The lawsuit filed against Lance Armstrong for lying in his books: a gift to civil procedure professors working through heightened pleading requirements of FRCP 9(b) and Twombly-Iqbal. This morning, NPR’s Only a Game show featured a “lawsuit of the week” segment. With some laughter, the host talked about how two individuals filed a class action suit against Lance Armstrong and his publisher. The complaint alleges that defendants defrauded the class into buying Armstrong’s books and seek remedy for being tricked into believing he was a champion. The lawsuit alleges that the plaintiff class would not have bought the book had they known it contained lies about Armstrong’s doping.
This case sounds a whole lot like litigation brought against Three Cups of Tea author Greg Mortenson, his co-author, their publisher, and marketing consultants after plaintiffs discovered that the book lied about Mortenson’s humanitarian efforts in Afghanistan. Long story short, the complaint alleged that Mortenson tricked readers into thinking he was a hero and he really wasn’t. As the federal district court Judge Hannon explained in his opinion and order on defendants’ motion to dismiss:
Plaintiffs contended they purchased one or more of Mortenson’s books for approximately $15 each. They claim that the books should not be categorized as nonfiction, as a number of misstatements relating to their contents have surfaced, and that Mortenson, Relin, MC, CAI, and Penguin entered into a fraudulent scheme to falsely portray Mortenson as a hero in order to boost book sales.
The complaint asserted claims for RICO, fraud, breach of contract, implied contract, unjust enrichment, among others. Plaintiffs had amended their complaint three times before defendants moved to dismiss. As the motion was pending, the court allowed plaintiffs to amend the complaint for a fourth time. Defendants moved to dismiss on the grounds that the complaint failed “(1) to plead fraudulent activity with particularity, (2) meet plausibility standards, (3) plead necessary elements, and (4) allege cognizable injuries.” Read the rest of this post »
Professor Sherrilyn Ifill on Fisher v. University of Texas: Still Litigation Without Minority Representation
posted by Danielle Citron
My colleague Sherrilyn Ifill has generously offered to share her insights on the Fisher case. Professor Ifill is a nationally recognized expert on civil rights litigation: we are lucky to have her aboard as a guest commentator. Here is Professor Ifill’s post:
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies. Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.
This troubling phenomenon was first the result of the federal court’s interpretation of intervention of a right under Rule 24 of the Federal Rules of Civil Procedure. A year after the Bakke case, Professor Emma Coleman Jordan (nee Jones) wrote powerfully about the refusal of the federal trial court in that case to allow black students to intervene in her Harvard Civil Rights-Civil Liberties Law Review article Litigation Without Representation: The Need for Intervention to Affirm Affirmative Action.
Post-Grutter, the exclusion of minority students as parties at trial may be even more firmly fixed. By grounding affirmative action’s constitutionality in the First Amendment rights of universities, the Court saved affirmative action in higher education, but may also have further reinforced the redundancy of minority student participation as full litigants in these cases.
The result is that the Fisher v. University of Texas case was litigated at trial almost entirely between white applicants and a majority white public university. No lawyer arguing the case in the Supreme Court represents the interests of minority students. Certainly it’s true that civil right litigators at the NAACP Legal Defense & Educational Fund were permitted to file briefs and to present oral argument in the Court of Appeals in the Fisher case. But the real issue is the refusal of courts to allow minority students party status at trial.
The exception was the University of Michigan case, Grutter v. Bollinger, where black, Latino, Asian-American and Arab-American students were permitted to intervene at the trial phase of the case. Their robust defense of the school’s affirmative action policy included strong and direct testimony and evidence about the school’s history of discrimination against blacks. Strikingly, in contrast to the law school’s defense, the minority students challenged the University’s over-reliance on the LSAT in its admissions decisions, to the detriment of minority students, describing the LSAT as providing a “sharp, undeserved, disadvantage for minority LSAT-takers, and a sharp unearned advantage for white LSAT-takers.”
The participation of minority students as parties at trial is important because we can only expect universities like Michigan and Texas to defend their affirmative action initiatives in the furtherance of their own interests and goals. Thus, the University of Michigan was unlikely, in the Grutter case, to explore its strong reliance on applicant LSAT scores in admissions. Nor does the brief filed by Texas lay out in detail the history of discrimination at the University of Texas, and the ongoing alienation experienced by black students at the state’s flagship university, as set out in a recent article co-authored by Professor Lani Guinier.
Although some of the most compelling arguments advanced in this case are contained within the amicus briefs filed in the Fisher case, including one filed by the NAACP Legal Defense & Educational Fund, Inc. on behalf of black students, another by the Advancement Project highlighting the history of discrimination by the University of Texas, and still another filed by the family of the man who challenged and defeated segregation at UT 60 years ago, amicus status is no substitute for party status at the trial phase. All good litigators know that the ability to shape and develop a cause of action at trial, first by the allegations advanced in the complaint, then by the information sought on discovery and finally by the theory of the case advanced at trial – determines the substantive scope of the findings ultimately made in the case. Thus, party standing in these cases is particularly important.
In fact, the trial judge in Fisher permitted the League of United Latin American Citizens (LULAC) and the NAACP to submit amicus briefs at trial “in lieu of intervention,” and expressly denied permission to LULAC to submit any evidence in the case.
It’s certainly true that despite the party status of minority students in Grutter, the Supreme Court in its majority opinion appeared to ignore the students’ contribution to the case, not even mentioning the intervenors’ participation in the recitation of the procedural history of the case. Some suggest that this demonstrates that even when intervention is permitted, courts may ignore the presentation made by minority students. But the mere fact that an appellate court fails to acknowledge the contribution of intervenors, is not evidence that those intervenors did not play an important role in shaping the record to which the appellate court was bound for its review.
There’s something deeply disquieting about higher education affirmative action cases in which blacks and Latinos are virtually litigation bystanders. More than thirty years after the Bakke case, affirmative action in higher education has survived and may yet survive this latest challenge in Fisher, but the voice of racial minorities in shaping the presentation of these issues is at a low ebb.
posted by UCLA Law Review
Volume 59, Issue 5 (June 2012)
|Implicit Bias in the Courtroom||Jerry Kang et al.||1124|
|The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law||Lumen N. Mulligan & Glen Staszewski||1188|
|Techniques for Mitigating Cognitive Biases in Fingerprint Identification||Elizabeth J. Reese||1252|
|Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases||Jonathan Slowik||1292|
|Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law||Aaron Sussman||1342|
July 1, 2012 at 2:39 pm Posted in: Administrative Law, Behavioral Law and Economics, Civil Procedure, Constitutional Law, Consumer Protection Law, Courts, Evidence Law, Law Rev (UCLA) Print This Post No Comments
posted by Dave Hoffman
As I explored in a previous post, some terrific co-authors and I have written a paper which taxonomizes federal complaints- that is, we find patterns in the kinds of causes of action that attorneys plead. In this post, I’m going to explore those patterns in some more detail.
In our data, spectral clustering revealed eight clusters of causes of action. Each grouping organizes together causes of action that are more likely to be pled together than they are to be pled with others. (This eight-cluster finding is probably not generalizable to all litigation – the paper goes into some detail about the kinds of cases that we included and excluded from our dataset.) When you think about it, that there will be some patterns from this kind of exercise is obvious — there are only a limited number of legally cognizable fact patterns that can cause injury, and attorneys often follow form books/precedent when pleading. Still, we didn’t know what the patterns would be before completing the analysis.
The Figure below provides the most common two or three causes of action per cluster:
This illustrates how, for example, intellectual property claims (like trademark infringement) often travel together with consumer protection claims; civil rights claims (like 1983 allegations) accompany state law torts; and tort claims often fit with contract and fraud claims. This should be old news to anyone who has ever practiced law. Moreover, the Figure doesn’t give us a good handle on how alike or unlike each pattern is from another. Follow me after the jump for the Figure that tries to accomplish just that.
posted by Jaya Ramji-Nogales
For those who thought Civ Pro was boring, this will liven up the end of your semester:
posted by Danielle Citron
Lucky for us, my brilliant colleague Lee Kovarsky took some time out of his whirlwind schedule to help walk us through the Supreme Court’s post-conviction decision in Martinez v. Ryan. I’ve blogged about Professor Kovarsky before–he is an expert on habeas corpus whose newest work, entitled “A Constitutional Theory of Habeas Power,” will be published by the Virginia Law Review. He is also amidst writing a textbook for Foundation Press entitled “Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation” (forthcoming 2013) (with Brandon Garrett). Professor Kovarsky recently argued a habeas case before the Fifth Circuit and helped write the ABA Amicus Brief in Martinez.
Martinez and the Roberts Post-Conviction Project*
Almost under the radar, the Roberts Court has reconfigured the way this country conducts post-conviction review. Years from now, we may consider a case decided this Tuesday, Martinez v. Ryan, a seminal entry in that shift. Perhaps Martinez was reported so sparingly because it was so complicated, but its complexity shouldn’t obscure its importance. (Stephen Vladeck has a characteristically insightful explanation of Martinez up on SCOTUSBLOG.)
The “Roberts Post-Conviction Project” has two moving parts. First, the Project involves a series of decisions promoting state collateral review as the “main event” for post-conviction challenges. Second, and at the same time, the Project has generated incentives for states to provide more process and better lawyers in those proceedings. The Project is hardly a return to thick, Warren-era habeas review of state criminal procedure, but it does slightly moderate one rhetorical excess of Rehnquist post-conviction jurisprudence—the proposition that state judges are always as good as their federal counterparts at enforcing federal constitutional rights.
Criminal process for convicted state prisoners subdivides roughly into the following phases: (1) direct appellate review of the conviction; (2) a state post-conviction disposition subject to state appellate review; and (3) a federal habeas proceeding with federal appeals. For decades, Congress and the Supreme Court have been recalibrating federal habeas review to defer to state post-conviction outcomes. Most recently, in Cullen v. Pinholster (2011), the Supreme Court held that (generally) federal habeas relief could issue only on evidence presented to a state post-conviction court.
The problem is that, for decades, state post-conviction review—the first place that a prisoner may assert many important constitutional challenges to a conviction—has been a legal swamp of vague rules, spotty process, and substandard representation. Many prisoners litigate state post-conviction claims pro se, and many counseled prisoners enjoy no constitutional entitlement to competent representation. Even for strong constitutional claims, forfeiture often follows a state prisoner’s failure to successfully navigate unthinkably complex state post-conviction law either (1) without representation or (2) with a bad lawyer that the state underpays.
And federal habeas law imposes all sorts of severe penalties when state post-conviction representation goes predictably awry. For instance, the federal limitations statute was—until recently—unforgiving about lost portions of the limitations period attributable to even the most appalling state post-conviction representation. Moreover, at least pre-Martinez, when incompetent state post-conviction representation forfeited a claim on a state procedural ground, that claim would be inexcusably defaulted on federal habeas review.
The Court heard Martinez v. Ryan on October 4, 2011. Twenty-four State Attorneys General signed an Amicus Brief in support of Arizona, as did the United States. By mid-March 2012, the Court had still failed to announce a decision. It was clear that something serious was happening, but nobody had a good sense of what that something was. As it turns out, the prisoner won pretty big. Although the opinion stopped short of announcing a constitutional right to a state post-conviction attorney, its decision will nonetheless improve the representation provided at that phase of criminal process.
Kennedy wrote, and was joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. (Scalia and Thomas dissented.) The head count is a pleasant surprise for those who remain skeptical that Roberts and Alito are willing to break meaningfully from Scalia and Thomas on the harsh application of procedural rules on federal habeas review. Read the rest of this post »
posted by Stanford Law Review
Volume 64 • Issue 2 • February 2012
Elective Shareholder Liability
March 6, 2012 at 3:51 am Posted in: Civil Procedure, Constitutional Law, Corporate Finance, Corporate Law, Courts, Criminal Law, Criminal Procedure, Law Rev (Stanford), Law Rev Contents, Privacy (Law Enforcement), Technology Print This Post No Comments
posted by Dave Hoffman
In last year’s McIntyre v. Nicastro, Justice Kennedy, writing for four Justices, emphasized that personal jurisdiction rested on purposeful availment of the forum state. But, he quickly qualified, “in some cases, as with an intentional tort, the defendant might well fall within the State’s authority by reason of his attempt to obstruct its laws.” As many have noted, this leaves the Calder v. Jones libel jurisdiction line of cases up in the air. Do they remain good law? Would it matter if the libel happened only over the ‘net?
I guess we’ll see. Read the complaint in O’Keefe v. Current Media. It’s a good example of what’s coming — a news report delivered mostly on the web, which happened to reach New Jersey, where the plaintiff now seeks redress in State Court for libel. Does New Jersey have jurisdiction over Current Media, Keith Olberman, and David Shuster? Only Justices Breyer and Alito know.
posted by Danielle Citron
Sometimes, opening sentences tell you exactly what you need to know about what’s to follow. That’s certainly true of literature. Consider the beginning of Fyodor Dostoevsky’s Notes From Underground (translation Richard Pevear and Larissa Volokhonsky): “I am a sick man . . . I am a wicked man. An unattractive man. I think my liver hurts.” Genius, really. And this notion is definitely true of opinions. Take, as an example, Wal-mart Stores v. Dukes: “We are presented with one of the most expansive class actions ever.” Justice Scalia, from the get go, made clear that the class was doomed. I imagine that readers have other humdingers of beginnings, do tell.