Archive for the ‘Civil Procedure’ Category
Levitt v. Yelp: Why Twombly/Iqbal Are Regrettable
posted by Danielle Citron
I’m just at the start of my pleadings journey with my Civil Procedure II students, which has got me reading lots of terrific scholarship on the regrettable impact of Twombly and Iqbal. Federal district court Judge Chen’s recent dismissal of the third amended complaint in Levitt v. Yelp, 2011 WL 5079526, seems a perfect example of why Twombly and Iqbal’s insistence upon factual plausibility before discovery transforms FRCP 12(b)(6) motions into something far different from sussing out “fair notice” and more like summary judgment as Suja Thomas astutely suggests. (Scott Dodson and Adam Steinman also have insightful pieces on Twombly and Iqbal — New Pleading, New Discovery” and “The Pleading Problem,” respectively).
Let me first tell you a bit about the Levitt suit against Yelp. Plaintiffs, two subclasses of business owners, alleged that Yelp unlawfully manipulated its business review pages to induce them to pay for advertising in violation of California’s civil extortion statute. In a previous ruling, the court dismissed the complaint with leave to amend because it lacked factual allegations from which a threat might be plausibly inferred. The Third Amended Complaint (TAC) added allegations concerning Yelp’s dealing with plaintiff Wheel Techniques (WT) in late 2008 and early 2009. According to the TAC, soon after WT noticed negative reviews on its Yelp page that did not correspond with its actual customers, it received calls from Yelp representatives seeking advertisements. Plaintiffs alleged that Yelp created false reviews to induce WT to advertise with it and that “200 Yelp employees or individuals acting on their behalf have written reviews of businesses on Yelp.” Plaintiffs alleged that when Wheel Techniques contacted Yelp to ask why a competitor had a high rating on Yelp, the Yelp representative told him the competitor advertised and “we work with your reviews if you advertise with us.” Id. ¶ 78. On March 8, 2010, Wheel Techniques was again contacted to purchase advertising. Upon declining, Plaintiffs allege that a 1–star review was moved to the top of the business page “within minutes” as a threat to induce Wheel Techniques to advertise. Id. ¶¶ 79–81. Plaintiffs allege that Wheel Techniques owner John Mercurio was told several Yelp employees had been fired and computers had been frozen “as a result of scamming related to advertising.” Id. ¶ 82.
The district court ran through the Twombly-Iqbal standard, with a few tweaks. It explained that a complaint may be dismissed for failure to state a claim if it lacks a cognizable legal theory or sufficient facts alleged under a cognizable legal theory. Citing Twombly, the court noted that a motion to dismiss should be granted if a plaintiff fails to plead “enough facts to state a claim to relief that is plausible on its face.” “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” The court stated that “allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.” (The “construed in the light most favorable” to the non-movant language was absent in Iqbal). Citing Iqbal, the court said that: it “need not, however, accept as true pleadings that are no more than legal conclusions or the ‘formulaic recitation of the elements’ of a cause of action. Determining whether a complaint states a plausible claim for relief … [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” The court dismissed the complaint for failure to state a claim. Here’s the court’s explanation:
The TAC, like the SAC, fails to allege facts sufficient to support a conclusion that Yelp created any content. Plaintiffs have added an allegation that “approximately 200 Yelp employees or individuals acting on behalf of Yelp have written reviews of businesses on Yelp,” TAC 37, and that “Yelp has paid users to write reviews,” id. ¶ 38. Despite these allegations, however, it remains “entirely speculative that Yelp manufactures its own negative reviews or deliberately manipulates reviews to the detriment of businesses who refuse to purchase advertising,” and “[t]he [TAC] provides no basis from which to infer that Yelp authored or manipulated the content of the negative reviews complained of by plaintiffs,” Order Dismissing SAC at 17. That Yelp employees have written reviews, even for pay, does not raise more than a mere possibility that Yelp has authored or manipulated content related to Plaintiffs in furtherance of an attempt to “extort” advertising revenues. See Iqbal, 129 S.Ct. at 1950 (“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]‘-‘that the pleader is entitled to relief.’ ”) (quoting Fed.R.Civ.P. 8(a)(2)). Similarly, that Wheel Techniques noticed negative reviews of its business that did not match its customer records does not support the logical leap that Yelp created those reviews. See TAC ¶¶ 74–75. Nor does an allegation that Mr. Mercurio (Wheel Techniques’ owner) “was told” by an unnamed source “that a former Yelp employee stated that Yelp, upon information and belief, terminated a group of sales employees … as a result of scamming related to advertising” and that “the computers of sales employees were, at one point, frozen to prohibit employees from being able to change reviews” raise more than a speculative possibility that Yelp employees created or substantively manipulated the content of Plaintiffs’ reviews in this case. See TAC ¶ 82. “Scamming related to advertising” could have referred to a host of practices not involving manufacturing of false reviews.
Despite the court’s claim that it would draw all inferences in plaintiffs’ favor, it seemed to do the opposite. The plaintiffs provided a factually plausible account of extortion: that Yelp employees write reviews; that after WT notice negative reviews that did not accord with its customer records, a Yelp representative called seeking advertising; that a Yelp employee told WT that it works with customers that advertise with it; that as soon as WT refused Yelp’s advertising solicitation, a one-star rating appeared at the top of its Yelp page; and that WT’s owner learned that Yelp employees had been fired due to scamming related to advertising. Nonetheless, the court reads the allegations seemingly in the light most favorable to defendant movant, reasoning that scamming related to advertising could have referred to a host of practices not involving false reviews and that even if Yelp hired people to write reviews it does not raise more than a mere possibility that it manipulated content regarding WT to extort advertising revenues. The court seemingly ignores the allegations related to the solicitation calls and the subsequent negative review appearing on WT’s page after it declined Yelp’s second advertising solicitation. It’s difficult to imagine what more plaintiffs could have alleged at this stage in the game. Taking a cue from Scott Dodson’s article “New Pleading, New Discovery,” plaintiffs need discovery to figure out if Yelp employees did what the circumstances suggest–manipulate reviews to bully WT and other plaintiffs into buying advertising. In the end, Suja Thomas has it right. This whole endeavor sounds a lot more like a summary judgment motion than a motion to dismiss.
January 21, 2012 at 3:55 pm
Posted in: Civil Procedure
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Censorship on the March
posted by Derek Bambauer
Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.
Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.
Cross-posted at Info/Law.
January 18, 2012 at 5:31 pm
Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki
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Walker v. City of Birmingham
posted by Dave Hoffman
On tap today in civil procedure: the dispiriting Walker case, in which Justice Stewart holds that the collateral bar rule trumps the First Amendment. It’s a terrific case to teach early in the semester, and scheduling it immediately after MLK Monday can be especially gripping. In Duncan Kennedy’s framing (from The Reproduction of Hierarchy), Walker is a hot, hot case, which makes students quite angry, but leaves them ultimately unsure on how to channel that anger in a legally appropriate manner. Shouldn’t MLK and the ministers have petitioned the court even though it was futile? Isn’t Justice Stewart sort of right that such general rules can’t abide small exceptions, lest we fail to “pay for the civilizing hand of law”? Surely there’s an argument that courts, who lack armies, require special solicitude which the executive and legislative branches don’t.
Well, I’m not so sure about the merits of those arguments, but I recognize what effect they are likely to have on 1Ls. As Kennedy wrote:
“Most students can’t fight the combination of cold cases and hot cases. The cold cases are boring, but you have to do them if you want to be a lawyer. The hot cases cry out for response, seem to say that if you can’t respond you’ve already sold out, but the system tells you to put away childish things, and your reaction to the hot cases is one of them. Without any intellectual resources, in the way of knowledge of the legal system and of the character of legal reasoning, it will appear that emoting will only isolate and incapacitate you.”
January 17, 2012 at 5:03 pm
Posted in: Civil Procedure
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The Fight For Internet Censorship
posted by Derek Bambauer
Thanks to Danielle and the CoOp crew for having me! I’m excited.
Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.
Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.
I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.
Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)
Cross-posted at Info/Law.
January 16, 2012 at 7:28 pm
Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0
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Assessing Twiqbal
posted by Dave Hoffman
Several months ago, the FJC put out a well-publicized study assessing the results of Twombly-Iqbal on motions practice. It concluded that there was little reason, overall, for concern that the Supreme Court’s new pleadings jurisprudence had worked a revolutionary change down below. Lonny Hoffman (Houston) has just released an important new paper which questions the methods and conclusions of the FJC’s work. He pulls no punches:
“This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after Iqbal v. Ashcroft. Three primary assessments are made of the FJC’s study. First, there are reasons to be concerned that the study may be providing an incomplete picture of actual Rule 12(b)(6) activity. Even if the failure to capture all relevant motion activity was a non-biased error, the inclusiveness problem is consequential. Because the study was designed to compare over time the filing and grant rate of Rule 12(b)(6) motions, the size of the effect of the Court’s cases turns on the amount of activity found. Second, even if concerns are set aside that the collected data may be incomplete, it misreads of the FJC’s findings to conclude that the Court’s decisions are having no effect on dismissal practice. The FJC found that after Iqbal, a plaintiff is twice as likely to face a motion to dismiss. This sizeable increase in rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs who have to defend more frequently against these motions. The data regarding orders resolving dismissal motions even more dramatically shows the consequential impacts of the Court’s cases. There were more orders granting dismissal with and without leave to amend, and for every case category examined. Moreover, the data show that after Iqbal it was much more likely that a motion to dismiss would be granted with leave to amend (as compared to being denied) both overall and in the three largest case categories examined (Civil Rights, Financial Instruments and Other). Employment Discrimination, Contract and Torts all show a trend of increasing grant rates. In sum, in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Third, because of inherent limitations in doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted pre-Twombly to post-Iqbal cannot tell us whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Ultimately, perhaps the most important lesson to take away from this last assessment of the FJC’s report is that empirical study cannot resolve all of the policy questions that Twombly and Iqbal raise.”
I should disclose that I provided Lonny comments on an earlier draft, and overall I think he’s done an incredible (and generally very fair) job. One thing to think about, as always when evaluating litigation data, is the degree to which we would expect to see any results at all given case selection effects. That Lonny does observe such substantively significant changes notwithstanding selection tells us something about how dramatic the Twiqbal decisions really were.
August 5, 2011 at 12:29 pm
Posted in: Civil Procedure, Empirical Analysis of Law
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Same-Sex Couples and Divorce
posted by Courtney Joslin
Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.
As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”
Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.
My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.
In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.
July 12, 2011 at 11:30 am
Posted in: Civil Procedure, Constitutional Law, Family Law, Feminism and Gender, LGBT
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Pennoyer v. Neff, By God!
posted by Dave Hoffman
One of Kevin Clermont’s Cornell civil procedure students lives “about ten minutes away from where our esteemed friend Sylvester Pennoyer is buried.” Pennoyer, as you will recall, is a party in one of the best known Supreme Court cases of all times — at least, best known by lawyers. The student took some photos of Pennoyer’s grave, which Kevin then shared with the Civ Pro Listserv.
Pennoyer rests at ”Riverview Cemetery … located just south of Portland overlooking the Willamette river.” RIP, Sylvester.
May 31, 2011 at 11:56 am
Posted in: Civil Procedure
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Corporate Control in the Courtroom
posted by Jessica Erickson
Corporate litigation has long followed a predictable pattern. When a corporation announces a restatement or similar bad news, shareholders race to the courtroom, filing nearly identical complaints in multiple courts. Congress sought to halt this practice in federal securities cases through the Private Securities Litigation Reform Act, but the practice continues unabated in state law cases. The Delaware Court of Chancery has been the clear loser of this filing strategy. Empirical evidence suggests that shareholder lawsuits are leaving Delaware in droves. Defense lawyers even claim that plaintiffs now use an “Anywhere but Chancery” approach when filing state law class actions and derivative suits.
The Delaware Court of Chancery recently suggested one way for corporations to protect themselves from these practices. Last summer, Vice Chancellor Laster stated in dicta that “if boards of directors and stockholders believe that a particular forum would provide an efficient and value-promoting locus for dispute resolution,” these corporations should adopt a charter provision selecting this forum as the exclusive venue for shareholder lawsuits. This idea was not unprecedented—a small number of companies had already included such provisions in their governing documents—but it was the first time (to my knowledge) that the concept received judicial approval. The defense bar quickly picked up the charge, with Wachtell, Lipton, Rosen & Katz recommending to its corporate clients that they adopt a charter amendment requiring that the Delaware Court of Chancery be the “sole and exclusive forum” for any breach of fiduciary duty suit filed against the company or its officers, directors, or shareholders. A recent memorandum by Latham & Watkins reports that more than 70 companies have included these provisions in their bylaws or charters.
This development raises intriguing questions about how much control corporations should have when it comes to lawsuits filed by their shareholders. Read the rest of this post »
May 11, 2011 at 4:57 pm
Posted in: Civil Procedure, Corporate Law, Courts
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What Difference Representation: Case Selection and Professional Responsibility
posted by Margaret Monsell
Thanks for the invitation to participate in this interesting and provocative symposium.
I’m a legal services attorney in Boston. My employer, Massachusetts Law Reform Institute (MLRI), has as one of its primary tasks to connect the state’s field programs, where individual client representation occurs, with larger political bodies, including legislatures and administrative agencies, where the systemic changes affecting our clients most often take place. (The legal services programs in many states include organizations comparable to MLRI; we are sometimes known by the somewhat infelicitous name “backup centers.”) Among the programs with which MLRI is in communication is the Harvard Legal Assistance Bureau, and I would take this moment to acknowledge the high regard in which I and my colleagues regard their work.
The substantive area of my work is employment law. It is no surprise that during the past three years of our country’s Great Recession, the importance of the unemployment insurance system for our clients has increased enormously and, consequently, it has occupied a greater portion of my time than might otherwise have been the case.
I’m not a statistician nor do I work in a field program representing individual clients, so my comments will not address in any detail the validity of the HLAB study or the conclusions that may properly be drawn from it. As one member of the community of Massachusetts legal services attorneys, however, I have an obvious interest in the way the study portrays us: we are variously described as self-protective, emotional, distrustful of being evaluated, and reluctant to the point of perverseness in participating in randomized studies of the kind the authors wish to conduct. Our resistance in this regard has itself already been the subject of comment here. Happily, it is not often that one looks into what seems to be a mirror and sees the personage looking back wearing a black hat and a snarl. But when it does happen, it’s hard to look away without some effort at clarification. So I will devote my contribution to the symposium to the topic of the perceived reluctance of the legal services community to cooperate in randomized trials. It goes without saying, but the following thoughts are those of only one member of a larger community.
My understanding is that in the HLAB study, no significant case evaluation occurred prior to randomization. Many of us in legal services view with trepidation the idea of ceding control over case selection to the randomization process. Others have more sanguine views, either because they assume that randomization is already taking place or that it ought to be. For example, in his comments from a few months ago, Dave Hoffman was working under the assumption that to randomize client selection would not change an agency’s representation practices at all, and on that basis, he criticized resistance to randomized control trials as “trying to prevent research from happening.”
The authors of the study are enthusiastic about randomization not only because of its scientific value in statistical research but also because it can help to solve one of the thorniest problems facing legal services programs – the scarcity of resources as compared to the demand. As long as the demand for legal assistance outstrips the supply, Professor Greiner has said, randomization – a roll of the dice or the flip of a coin — is an easy and appropriate way to decide who gets representation and who does not.
I believe it’s erroneous to assume that randomization would not change representation practices, at least in the area of legal services in which I work. I also acknowledge that it is possible, at least theoretically, for all the cases in a randomized control trial to have met the provider’s standards for representation. This would provide some measure of reassurance. However, in one area of law, immigration asylum cases, the authors have concluded that time constraints make such an effort unworkable.
March 28, 2011 at 5:11 pm
Posted in: Civil Procedure, Empirical Analysis of Law, Law Practice, Symposium (What Difference Representation)
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UCLA Law Review Vol. 58, Issue 3 (February 2011)
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
Articles
| Good Faith and Law Evasion | Samuel W. Buell | 611 |
| Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 | Katherine Florey | 667 |
| The Need for a Research Culture in the Forensic Sciences | Jennifer L. Mnookin et al. | 725 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Joseph P. Bono | 781 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Judge Nancy Gertner | 789 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Pierre Margot | 795 |
Comments
| What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation | Samuel M. Kidder | 803 |
| Defendant Class Actions and Patent Infringement Litigation | Matthew K. K. Sumida | 843 |
February 25, 2011 at 1:19 pm
Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court
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Salutary Legislative Efforts to Permit Pseudonymous Litigation
posted by Danielle Citron
Cyber harassment often invades victims’ privacy by exposing their sensitive personal information, revealing photographs, and the like. Because search engines reproduce information cached online, time’s passage cannot alleviate their reputational, emotional, and physical damage. Unlike newspapers, which were once only easily accessible in libraries after their publication, search engines now index all content on the web, and can produce it instantaneously. Victims must live with digital privacy invasions that are deeply humiliating, reputation-harming, and potentially dangerous, as well as searchable and accessible from anywhere, and by anyone, in the world. Often, the information is taken out of context, producing a distorted and damaging view of the person.
While lawsuits can serve to redress victims for these harms, they also risk compounding the severity of these privacy problems. Law often permits victims to sue perpetrators for intentional infliction of emotional distress, invasion of privacy, and defamation. But victims typically must bring such civil lawsuits in their own names. As a result, the complaints, which are available to the press and interested individuals, further publicize the cyber harassment, exacerbating the privacy harms suffered by victims. In turn, victims may refrain from pursuing their harassers in court not because they lack legitimate claims but because they fear exposing themselves to further privacy invasions.
Hawaii’s proposed Senate Bill 288, if enacted, could be invoked to combat this problem when the online harassment occurs in domestic abuse cases. The bill would permit pseudonymous papers “in cases of alleged domestic abuse where the alleged victim has already received an order of protection, temporary restraining order, or protective order against the accused party.” The bill covers cases where pseudonymous filing is “reasonably necessary to protect the privacy of the alleged victim and will not unduly prejudice the prosecution of the defense.” The proposed legislation permits victims of domestic abuse, including cases involving online harassment, to bring law’s coercive power to bear against perpetrators. Because the bill allows courts to weigh the victim’s interest in privacy against the public’s interest in disclosure, it aims to protect privacy and transparency. Disappointingly, however, the bill only covers cases involving domestic abuse, thus failing to reach instances of online harassment involving privacy invasions where victims may refuse to sue their attackers for fear of publicity.
February 11, 2011 at 5:17 pm
Posted in: Civil Procedure, Cyber Civil Rights, Privacy, Privacy (Gossip & Shaming)
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Cognitive Illiberalism and the Speech-Conduct Distinction
posted by Dave Hoffman
The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game. Indeed, almost every decision you read about these days comes accompanied by a reference to the political party of the appointing President – as if you needed the help! As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”
For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern. We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities. Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski. The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings. (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)
February 7, 2011 at 6:00 pm
Posted in: Articles and Books, Behavioral Law and Economics, Civil Procedure, Civil Rights, Law and Psychology, Law School (Scholarship), Psychology and Behavior, Sociology of Law
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Munger’s Vision Comes to Florida Foreclosure Proceedings
posted by Frank Pasquale
Recently billionaire Charlie Munger offered this vision of financial justice in a bailout era:
We “shouldn’t be bitching about a little bailout” of the banks, Berkshire Hathaway Inc. Vice Chairman Charles Munger told students at the University of Michigan on Sept. 14. . . . Munger feels the bank bailouts were “required to save your civilization.” He suggested that burdening the economy with bank failures would have results similar to the economic collapse in Germany after World War I and led to the rise of Adolf Hitler. Meanwhile, “the culture dies” if you bail out individuals. People in economic distress should “suck it up and cope.”
Via Yves Smith & Mother Jones magazine, there are reports that Florida courts are doing their best to make Munger’s vision a reality. According to an account of one judge’s speech to his court:
[He] says that if the bank is foreclosing, he’s not going to consider any evidence that the foreclosure is in error (servicing errors, plaintiff can’t provide proof it owns the note, which means it might not be the right party and procedurally, means it lacks standing to take action). He says he has already heard everything, there is a lot of unemployment in the area; he is going to schedule a court date, but that is merely a deadline for negotiation. In other words, he makes it abundantly clear he has no interest in hearing evidence. When he gets to seeing a defendant after his speech to the court, he rubber stamps what the bank wants without even considering the evidence. And apparently his entire day went like that.
Citing other sources, Smith says “There is actually much more of the same, multiple instances with particulars, with the judge clearly operating from the presumption that the borrowers were all deadbeats and the sale would go forward.” In other words, “suck it up and cope.” The “sanctity of contract” is for AIG (and perhaps other counterparties of Goldman, which Munger’s firm has a big stake in)—not for you.
PS: Now is as good a time as ever to support the University of Miami’s foreclosure defense group.
September 27, 2010 at 8:33 pm
Posted in: Civil Procedure, Contract Law & Beyond, Current Events, Economic Analysis of Law, Law and Inequality
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A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?
posted by Glenn Cohen
While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act are in some ways the more interesting (and if upheld more meaningful) decisions. Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal. I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage. Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here. Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill? Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests? Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be? Which case is the one someone supportive of these efforts should want to see get to the cert stage first? How does the standing to appeal issue in Perry fit in to the calculation? Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first. Lots of questions and few answers, but I thought others might have interesting thoughts…
August 20, 2010 at 12:00 pm
Posted in: Civil Procedure, Constitutional Law, Family Law, Law Practice
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Hertz, Appellate Review, and Sneaky Tricks
posted by Glenn Cohen
You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act. The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.
What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.
Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have. After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….
August 19, 2010 at 9:53 am
Posted in: Civil Procedure, Law Practice, Uncategorized
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Litigating Toward Settlement
posted by Dave Hoffman
What is the relationship between litigation and settlement? In a new working paper, Christina Boyd and I explore that question using data from federal trial dockets. Our basic intuition is that motion practice propels cases toward faster settlements, as it unlocks information about the facts, the parties’ strategies, the resources they will spend on the case, and (sometimes) what the judge thinks of the merits. Our results essentially support such hypotheses: the mere filing of a motion speeds case settlement. Moreover, “motions which are granted are more immediately important to the settlement rate than motions denied, plaintiff victories are more important than defendant victories, motions about unclear areas of law are more important than motions about settled law, and motions later in cases are more important that motions earlier in cases.” These findings are suggestive. Though motion practice is often thought of as parasitic, driven by agency costs, and part the problem of litigation, our results imply that it has significant pro-social consequences. Indeed, paying homage to Gilson, why not re-imagine lawyers as canny litigation costs engineers?
We also found some nifty case effects. Women judges were on average (as Boyd had previously established) better at encouraging settlement than men: “the likelihood of a case settling in any given month is, on average, 25% larger when a female judge presides than when a male judge does.” Also, imbalance between the size of the firms representing the plaintiff and the defendant had a significant influence on compromise’s timing, as the figure below illustrates:
August 6, 2010 at 9:52 am
Posted in: Behavioral Law and Economics, Civil Procedure, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology
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Where, Oh Where Shall They Sue?
posted by Jaya Ramji-Nogales
When I was a young law firm associate, we had tobacco, diet drugs, and Jeep rollovers. These big money-making mass tort cases were known for sucking the life out of young attorneys, who could spend years of their lives in windowless rooms conducting document review tasks that could be performed by highly paid monkeys. Next year’s class of monkeys will have a whole new nemesis: the Gulf oil spill litigation.
With over 200 federal civil lawsuits already filed, today’s Wall Street Journal outlines the battle shaping up among lawyers over where these cases will be heard, and most importantly, who will hear them. Arguments on potential consolidation will be heard in one hour next week before a panel of seven judges in Boise, Idaho. Pay attention, young associates!! These decisions could determine your future residence, even if you thought you were signing onto a law firm so that you could live in New York.
July 23, 2010 at 3:06 pm
Posted in: Civil Procedure
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Victory for Justice in Fensterstock
posted by Lawrence Cunningham
In a victory for access to justice, the Second Circuit held Monday that a student loan agreement forbidding a borrower to make claims on a class-wide basis in arbitration or litigation was unconscionable under California law and that California’s law was not preempted by the Federal Arbitration Act. It also said the agreement’s severability clause didn’t open the way to compellling class arbitration because, once the other clauses were out, the agreement was silent on dispute resolution, so it couldn’t order class arbitration.
This is a big case as the first point addresses the issue SCOTUS will hear next term in AT&T v. Concepcion, where AT&T claims the FAA preempts California law because it discriminates against arbitration clauses compared to other kinds of contracts. The second point, on severability, takes up lessons SCOTUS articulated in last term’s Stolt-Nielsen case. It’s important as a broad and convincing contribution to intense national disputes over dispute resolution.
The substantive objection in the case, Fensterstock v. Education Finance Partners, concerns how the lender allocated monthly loan repayments between interest and principal, using a squirrely provision allocating to interest all payments except those received exactly on the monthly payment due date. The borrower says that’s a hidden fee, stretching out loan amortization, and makes substantive claims for breach of contract and unfair trade practices. The agreement also contained a dispute resolution clause, limiting both sides to individual arbitration—not class arbitration or class litigation or any kind of litigation. It named California as governing law.
The lender wanted to compel arbitration, citing the FAA, requiring courts to do that for any arbitration clause in a contract involving interstate commerce, except those found invalid under general contract law principles. The borrower, a lawyer three years out of law school when he consolidated $52,000 in student loans, claimed the clause was unconscionable under California law and the court agreed, throwing out the clause and opening up a class action lawsuit.
The opinion is meticulous in extracting extensive block quotations from dozens of California cases on point, including the pivotal Discover Bank case. Drawing on a state statute making void contracts exculpating one from fraud, that case finds that some dispute resolution clauses in consumer contracts trip over it, being against law, public policy, and unconscionable. The statute and policy target enterprises who overcharge large numbers of ordinary people small amounts, then insulate themselves from liability using non-negotiable contracts preventing the small stakes from being accumulated to make a case worth pursuing.
July 15, 2010 at 2:26 pm
Posted in: Civil Procedure, Consumer Protection Law, Contract Law & Beyond, Supreme Court, Uncategorized
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VICTIMS’ UNDERSTANDINGS AND MOTIVATIONS IN PROCESSING HUMAN RIGHTS VIOLATIONS CASES IN THE GLOBAL SOUTH
posted by Tamara Relis
The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas and principles continue to have difficulty in establishing their relevance in the daily lives of those who are geographically and culturally distant from international institutions (Stacy, 2009). In my forthcoming piece in Human Rights Quarterly, I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South. What are victims’ conceptions and expectations of human rights and their agendas and experiences in formal and informal justice systems processing their cases? This knowledge is critical to enable greater understanding of victims’ needs, epistemologies and micro-realities in order to innovatively engage the controversies in international human rights theory and practice and to effect realizable change for the subjects of human rights in the Global South.
I provide some such data in my forthcoming book based on my empirical research in India, detailed in my earlier post. This includes voices of female victims of violence discussing their comprehensions, objectives, and practices in processing their cases (74 interviews with victims, and 24 with their family members). I link victims’ discourse to norm diffusion theory in international relations (Risse et al. 1999) and to vernacularization theory in law and anthropology (Merry, 2006), which engage the issue of permeation of human rights standards to grassroots levels.
In terms of female victims of violence in India where CEDAW was ratified in 1993, I show that notwithstanding State enactments of laws in line with international human rights obligations, and the dissemination of human rights concepts by transnational activists and domestic NGOs who work to make them meaningful within particular societies, the subjectivities of victims of violence in two major cities (Delhi, Bangalore) as illustrated in their discourse on their motivations and aims in approaching formal courts and informal justice mechanisms suggest little if any human rights emancipation. Those with little education had either never heard of human rights or lacked an understanding of their meaning. More educated victims who had a general sense of human rights concepts knew little of specifics. Moreover, both groups generally felt that fundamental human rights ideas, though something positive, were primarily of use on an inspirational level.
June 1, 2010 at 11:27 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Sociology of Law
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Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
May 24, 2010 at 8:49 pm
Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized
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