Concurring Opinions » Civil Procedure

Is Ricci a Significant Procedural Case?

Michael Zimmer — Sun, 15 Nov 2009 16:42:46 +0000

Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.

Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?

Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:

“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?

Charlie Sullivan, my friend, co-author and in my experience one of the ultimate proceduralists, has raised the question whether the Court was indicating that Ricci had some preclusive effect on the action of those plaintiffs. For Charlie, that raised Martin v. Wilks, which was overturned by the Civil Rights Act of 1991. Ironically, Martin v Wilks was another firefighters’s case, again involving white plaintiffs. The white firefighters were negatively affected by actions taken by the City of Birmingham to implement a consent decree it had agreed to with the N.A.A.C.P. that settled a discrimination claim by African-American firefighters. The actions of the City that the white plaintiffs’ challenged in Martin v. Wilks were those that benefited black firefighters, which they claimed disadvantaged them. Because the white firefighters were not party to the action leading to the consent decree or to the decree itself, the Court found that they were not precluded by that decree from bringing a discrimination action. But Martin v.Wilks is no longer good law.

This is where is the 1991Act comes in: 42 U.S.C. §2000-e(n) provides two scenarios by which these disparate impact plaintiffs might be barred. The first is whether they had “actual notice of the proposed judgment” that “might adversely affect their interests” and they had a “reasonable opportunity to present objections.” Because the Supreme Court granted summary judgment in Ricci, which was the first time the City lost, there was no opportunity for the disparate impact plaintiffs to present their objections. But the question would be whether the potential for adverse action resulting from the Ricci case as it was working its way up to the Supreme Court should have clued them to the risk that their interests “might” be adversely affected. In other words, a lot depends on the meaning given the word “might.”

Alternatively, the question would be whether the City, when defending against the white plaintiffs’ disparate treatment claim, had “adequately represented” the disparate impact claims of these plaintiffs. The City tried to defend against a judgment on the disparate treatment ground by relying on the potential disparate impact liability if it had used the test scores. While disparate impact would in some sense be the same legal grounds whether it was used offensively or defensively, it seems odd that the earlier legal actions of the party these plaintiffs were now suing, the City, would be the basis for precluding their suit. The fox guarding the chicken coop, I think.

In Briscoe v. City of New Haven, Michael Briscoe’s claim is that, well before the challenged test was ever given, the City knew of the strong likelihood that if it used the 60/40 weighting favoring written test scores over oral interview scores would result in disparate impact against minority testtakers. Despite that knowledge, the City did nothing about it. Briscoe’s claim challenges the decision of the City to use the test in the first instance, before there were any known beneficiaries of its use and before there was any actual disparate impact on those who did not do well one the test. That arguably fits the Briscoe case within the Ricci exception from the application of disparate treatment theory to a time before there was any reliance interest in those who would be promoted if the test was given and the scores used for promotions. In contrast, Ricci focused on the City’s subsequent decision not to use the test scores for promotions once the test had been administered when the white plaintiffs were adversely affected by that decision.

The issue of the weighting of the written and oral elements of the promotion process was raised in Ricci, but the focus was not on whether that weighting caused the disparate impact or, if so, whether the weighting was job-related and justified by business necessity. Instead, the weighting issue was raised as a question at the surrebuttal stage of a disparate impact case. That is, whether the employment practice that has a disparate impact but also has been shown to be job-related and justified by business necessity nevertheless is unlawful because an alternative was available that the employer failed to use even though it had a lesser impact and served the employer’s interests. That is not the “same legal grounds” nor is it a “similar factual situation” that is being challenged in Briscoe. So, a good argument can be made that Michael Briscoe’s lawsuit has eluded the application of the preclusive rules set forth in the 1991 Civil Rights Act because it has escaped the application of Ricci entirely. Only time will tell.

The Employer’s Strategy in Gross v. FBL Financials

Michael Zimmer — Wed, 04 Nov 2009 17:43:28 +0000

Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).

For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.

The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.

The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.

For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.

One explanation is that the employer changed counsel. Carter Phillips of Sidley & Austin, a very experienced Supreme Court practitioner, took up the case. But why did Phillips decide that his chances of winning improved if he could get the Court to change the focus of the case? In this era when there is some talk of the Court taking a “minimalist” approach to its decisionmaking, it seemed a bold move to ask the Court to answer a prior question with much deeper and broader potential implications than the one the Court said it was going to decide. Of course, if the Court dismissed the writ as improvidently granted, defendant still would win because it won below. But, a remand to the lower courts would delay, if not prevent, that victory. And, the Court could answer that question in favor of the plaintiff and still decide that “direct” evidence was not needed when the plaintiff sought to use the burden shifting approach to linkage. At a minimum, the strategic decision to ask the Court to decide a different question than the one presented was not without risk.

One reason to try to change the focus of the case was that answering the question the employer now posed allowed the Court a way to avoid deciding the messy question of what “direct” evidence exactly is. As a background in Desert Palace, there was a slew of authority going every which way on that question. That uncertainty is understandable since, at bottom, there is no “direct” evidence of someone’s state of mind in the classic sense of evidence that proves the ultimate fact in dispute without the need to draw any inferences: State of mind is not directly observable. Recognizing this, some of the lower courts had rested on a formulation that “direct” evidence really meant strong circumstantial evidence of defendant’s intent to discriminate. That was a distinction, however, that could not hold. In Desert Palace, the Court avoided having to get into that swamp of authority by deciding that the plaintiff never needed any direct evidence to get burden shifting in Title VII mixed-motive cases. In Gross, the Court could avoid answering the same question, but this time by deciding that burden shifting was never available in individual disparate treatment ADEA cases, whether or not a plaintiff could point to some evidence that might be characterized as “direct.”

Perhaps a more significant reason to try to shift the focus was based on the change in the composition of the Court, especially the retirement of Justice O’Connor, since Price Waterhouse had been decided. Recently in Smith v. City of Jackson, the Court had decided that the disparate impact amendments to Title VII did not apply in an age case, but that the Title VII disparate impact authority pre-existing the 1991 Act did apply. Based on Smith, many Court watchers predicted that it was likely that the Court would find that the Title VII authority on linkage that pre-existed the Act would also apply in individual disparate treatment cases claiming age discrimination. That would leave open the question whether or not Justice O’Connor’s concurring opinion in Price Waterhouse applied to require “direct” evidence to get burden shifting – that is, whether Justice O’Connor’s concurring opinion was the holding of Price Waterhouse that applied to age discrimination cases. With Justice O’Connor being replaced by the more conservative Justice Alito, Phillips may have decided that the employer would win the votes all four Justices to the right of the middle of the Court — the Chief Justice and Justices Scalia, Thomas and Alito. Saying it another way, without those four, the employer’s case was doomed. Thus, the goal was to pick up one more vote, with Justice Kennedy the likely target since he sat in the middle of the Court. It maybe was not so clear that Justice Kennedy would go one way or the other on the “direct” evidence question since he had thought that there should never be burden shifting in Title VII, a point he made clear in his dissent in Price Waterhouse. Phillips might have calculated that it would be easier to persuade Justice Kennedy that he was right all along in Price Waterhouse and that it should be overruled, than it would be to get him to agree on the narrower question of how burden shifting worked as to the need for “direct” evidence if burden shifting applied somehow.

The gamble paid off: Justice Thomas appeared to undermine if not explicitly overrule Price Waterhouse, saying, “it is far from clear that the Court would have the same approach [as it took in Price Waterhouse] were it to consider the question today in the first instance.” With Price Waterhouse gone, burden shifting for age act cases was also gone. Though we did not know this until Gross, the linkage standards of both the ADEA and, at least before the 1991 Amendments, Title VII were always the same: “but-for” with the burden of persuasion on the plaintiff. Neither Title VII nor the ADEA had burden shifting even though we did not know that until Gross was decided in 2009. Therefore, adopting a bold strategic move paid off for the employer and its counsel before the Supreme Court.

A Civil Procedure Curriculum Challenge

Spencer Waller — Mon, 12 Oct 2009 16:56:51 +0000

I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.

I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.

If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.

I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.

Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.

But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.

By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

Spencer Waller — Tue, 06 Oct 2009 16:55:19 +0000

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

Iqbal Empirics

Jon Siegel — Wed, 09 Sep 2009 13:50:12 +0000

In response to my post yesterday, my colleague Orin Kerr asks whether Iqbal might lower the high costs of civil litigation by reducing the use of costly mechanisms such as discovery and summary judgment motions. This is a good question.

In analyzing Orin’s question, the first thing to notice is that, while Iqbal might save some costs, the decision also imposes costs. Because of Iqbal, pleading becomes more expensive. Not only is it more expensive to draft the initial complaint, because no one knows any more exactly what needs to be in the complaint, but, as numerous cases already show, Iqbal is returning us to the days when a case begins with “polishing the pleadings”: the defendant moves to dismiss, the court grants the motion with leave to replead, the plaintiff tries again, and we may go around multiple times (possibly including an appeal) before the plaintiff has a complaint that passes the applicable standards. And then we get to the costs of discovery and summary judgment.

The view of the drafters of the Federal Rules (particularly Dean Clark, who was very clear on this point) is that polishing the pleadings is a waste of time and money and we might as well get right to the other mechanisms that we’re just going to get to anyway, after polishing the pleadings.

So it’s not as simple as saying that Iqbal might save costs. What’s going to happen is that Iqbal will save some costs while imposing different costs. And I think the biggest cost that Iqbal is meant to save is not so much disovery costs per se, but the costs of settlements coerced by plaintiffs bringing doubtful claims against defendants who end up settling to avoid litigation costs (this is suggested by the Court’s opinion in the predecessor case of Bell Atlantic v. Twombly). The ultimate question is whether Iqbal’s will save or impose costs on balance.

As I have previously acknowledged (before I gained fame and fortune on Concurring Opinions) this is an empirical question — and one that would be quite difficult to answer reliably. The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years. But really, we should admit that it is at least possible that Iqbal would produce savings in the long run.

But I am inclined to doubt it. It seems more likely that Iqbal will just end up raising costs, by adding more pleading costs to discovery costs that will end up getting incurred anyway. And more important, Iqbal seems unfair. As some lower court cases are showing, Iqbal is trapping some plaintiffs in a Catch-22: they can’t successfully plead their cases because they don’t have information that they can’t get without discovery, which can’t get started until they successfully plead. (I suppose this will result in some savings, but again, I question whether there will ultimately be net savings.)

Given that it’s very difficult to tell whether Iqbal will save or cost money in the long run, I am inclined to say that we should continue the fairer system of letting cases get started without insisting on too much detail in the pleadings. But I would be open to rethinking the matter if anyone could come up with good empirical cost data on Iqbal.

The Public and Private Goods Produced By Litigation

Dave Hoffman — Fri, 21 Aug 2009 03:50:53 +0000

Eugene Volokh (among many others) recently posted the opinions in Klein v. Amtrak, the now famous EDPA unpublication case involving a settlement that led to the vacating of eight defense-unfriendly district court opinions. Although commentators across the web seemed surprised, in my experience the practice of asking a judge to vacate an opinion that produced a settlement is fairly common – this particular instance is only a small variant on the ordinary case. But Klein provides the opportunity to reflect on some of the unexpected benefits that we get from our ridiculous court system.

The obvious one is that judicial opinions are the public good that the parties prompt society to buy. The price we would pay for any kind of litigation reform would be fewer public decisions, and thus more uncertainty of the kind that unpublication like Klein promotes. The Third Circuit in particular was known for years for having very thin law – indeed, the late Chief Judge Eddie Becker of the Circuit famously led a one-man crusade against the dearth of law by writing copious dicta. The certainty that we get from having opinions strongly suggests that we should resist private attempts to keep the law secret – and should be similarly skeptical of the courts’ unwillingness to free PACER. Here, it appears merely that Judge Stengel asked WL and LEXIS to remove his opinions from his databases. Thus, like 80% of all substantive orders, they are on the docket, but aren’t available to the general public.

There’s an additional private benefit that accompanies litigation which is less illuminated by Klein: the parties get to communicate with one another. Given a regulatory regime that prohibits competitor contact, litigation can be the best way for companies to talk to one another (through discovery and signalling about which positions to take). That litigation-mediated-communication is one reason why some companies might prefer to continue to fight in the public system, rather than in commercial arbitration, where their ability to get discovery may be limited. Again, this isn’t to say that all lawsuits are worth the time and expense that the public invests in settling them, but it does suggest that litigation reform needs to account for these substantial litigation spillovers.

RECAP Already Proving Its Power?

Deven Desai — Wed, 19 Aug 2009 20:55:07 +0000

A couple days ago I blogged about RECAP, a system that aims to enhance government transparency by increasing access to court documents. RECAP does this by making it easy for people to share PACER documents after they have paid for them. Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.

In fact, one blogger has decided to post links to many of the vacated opinions, and, yes, RECAP allowed him to do that. In his view, “a court can ever truly ‘unpublish’ a decision, and that law is made every time a court decides any issue.” I am not so sure that is correct. I do think, however, that courts should be more clear as to why they take such actions. Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project. It preserves some truth.

If anyone has information and thoughts about the rules, procedures, and theories allowing a judge being able to unpublish an opinion, please share them.

Opening Up the Law: Pacer, CITP, and the RECAP the Law Project

Deven Desai — Fri, 14 Aug 2009 13:06:38 +0000

As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

Re-reading Iqbal (a new take on the 12(b)(6) wars)

Jaya Ramji-Nogales — Tue, 04 Aug 2009 15:28:37 +0000

My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time! His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .

Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.” Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.

The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)

Point 1: Precedent from the pre-Twombly pleading regime is still good law. The Supreme Court has made clear that only it has the power to overrule its decisions, and neither Iqbal nor Twombly overrules core Supreme Court precedents from the notice-pleading era. Twombly did put into “retirement” the statement from Conley v. Gibson that a complaint should be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” but this language was never taken literally. If it had been,a complaint alleging nothing more than that “the Earth is round” would pass muster, because any number of actionable facts would be consistent with the Earth being round. The more significant cases are more recent decisions—unanimous ones at that—in Swierkiewicz (2002 per Justice Thomas) and Leatherman (1993 per Chief Justice Rehnquist), where the Court explicitly considered and rejected arguments that a complaint must contain additional details or indicate evidence that would support the plaintiff’s allegations. Iqbal and Twombly do not question these cases, which must be presumed to remain good law.

Point 2: Under Iqbal, “plausibility” is not the primary inquiry (or even a necessary one). Many have emphasized the fact that Twombly and Iqbal allow judges to examine a complaint’s “plausibility” based on the judge’s own “judicial experience and common sense.” But a careful look at Iqbal’s reasoning shows that plausibility is a secondary inquiry that a plaintiff might be able to avoid altogether. Here’s the two-part test that Iqbal uses: First, identify allegations that are conclusory, and disregard them for purposes of determining whether the complaint states a claim for relief. Second, determine whether the remaining allegations, accepted as true, plausibly suggest an entitlement to relief. So, as long as an allegation is not conclusory at Iqbal step one, it must be accepted as true. Plausibility only comes into play when a court disregards a crucial allegation as conclusory; then the inquiry becomes whether the remaining, non-conclusory allegations—standing alone—plausibly suggest an entitlement to relief (Iqbal step two).

It follows that when a complaint contains non-conclusory allegations on every element of a claim for relief, the plausibility issue vanishes completely. A complaint that fails to provide non-conclusory allegations on every element might nonetheless pass muster if it contains enough to plausibly suggest an entitlement to relief. But a complaint that does provide non-conclusory allegations on every element of a claim, by definition, exceeds the threshold of plausibly suggesting an entitlement to relief for purposes of Iqbal step two. A court that ignores such a non-conclusory allegation on plausibility grounds would disobey Iqbal step two, because it would be failing to accept a non-conclusory allegation as true.

Point 3: “Conclusory” can be defined to reconcile Iqbal with pre-Twombly authority. We’re not out of the woods yet. We’ve simply shown that, to paraphrase a former lawyer-president, it all depends on what the meaning of the word conclusory is. A critic of Iqbal might worry that the same problems remain—a judge can simply disregard as conclusory any allegation that, say, lacks sufficient “enhancement” to make the allegation “plausible.” But that can’t be what conclusory means, because that definition would conflate Iqbal’s two distinct steps. Moreover, any definition that would disregard an allegation as conclusory on the basis that the complaint lacks other allegations suggesting its truth would flout decisions like Swierkiewicz and Leatherman, not to mention the Federal Rules’ famous Form 11 (f/k/a Form 9), which provides that a complaint would be sufficient simply by alleging “On , at , the defendant negligently drove a motor vehicle against the plaintiff.”

But what if we defined conclusory this way: an allegation is conclusory only when it fails to identify the real-world acts or events that entitle the plaintiff to relief from the defendant. This transactional definition of conclusory would not require the complaint to contain other allegations that support the complaint’s characterization of the act or event; nor would it require extensive details about the act or event. Under this definition, Form 11 passes muster because it identifies the liability-generating act or event (being hit by the defendant’s car), even though other aspects of Form 11 (the allegation that the defendant drove “negligently” at the time) might be characterized as conclusory in some sense. The same goes for Swierkiewicz. That complaint identified the act that made the defendant liable (the plaintiff’s firing) even though the characterization of that event (the employer’s discriminatory intent) might be labeled conclusory.

The Iqbal complaint, by contrast, fails under this standard because the allegation of invidious motive appeared in an allegation (paragraph 96) that stated generically that Ashcroft, Muller and nine other defendants “each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to [harsh] conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin.” This allegation does not identify—not even in broad terms— what Ashcroft and Mueller actually did to discriminatorily subject Iqbal to harsh conditions of confinement; yet their role was crucial as a matter of substantive law, because the Iqbal Court held that Bivens liability required that each defendant, through his own individual actions, violated the Constitution. (This is part of why Swierkiewicz was an easier case to plead—respondeat superior applies to employment-discrimination claims like Swierkiewicz, so the fact that a plaintiff has been fired for invidious reasons would be sufficient to establish a claim against the company.)

The result in a case like Iqbal could be different, however, if the complaint contains more concrete allegations. For example:

“Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.”

Or perhaps:

“Ashcroft and Mueller adopted a policy that all post-September-11th detainees be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI. Ashcroft and Muller anticipated that the vast majority of post-September-11th detainees would be Arab Muslim men, and they adopted this policy because of its adverse effect on this particular group.”

These hypothetical allegations would be sufficient because (unlike paragraph 96) they identify in “short and plain” fashion what Ashcroft and Mueller actually did.

One might respond that it’s just too dangerous to give judges any power to disregard allegations as conclusory, and therefore the better course is to require courts to accept all allegation as true at the pleadings phase. But I doubt this has ever been the rule, even before Twombly and Iqbal. Surely an allegation that “the defendant violated the plaintiff’s legal rights in a way that entitles the plaintiff to relief” would not have been accepted as true. So some line has to be drawn, and the theory outlined here suggests one way to draw it. Even the idea of “notice pleading” requires some understanding of what notice the defendant must receive. (That’s precisely why Charles Clark, the chief drafter of the original Federal Rules, was not a big fan of that phrase. He wrote that notice pleading was “a sound approach so far as it goes; but content must still be given to the word ‘notice.’ It cannot be defined so literally as to mean all the details of the parties’ claims, or else the rule is no advance.

The upshot is that there is more than one way for courts, litigants, and academics to make sense of the controversial decisions in Twombly and Iqbal. The approach proposed here would bring those decisions into much closer alignment with the notice-pleading regime that prevailed prior to Twombly. I’d certainly welcome comments or questions (adam.steinman@uc.edu) if any reader has the time or the inclination.

The Watchmakers’ Court and Related Curiosities

Michael Madison — Fri, 22 May 2009 13:15:35 +0000

This recent New Yorker piece about “Baselworld,” the annual watchmakers’ confab in Switzerland (Patricia Marx, “Face Value,” May 25, 2009) included a throwaway line that I found fascinating. Baselworld is so large that it has its own police force and “a judiciary to settle trademark disputes.” Whoa. Huh?

True enough, Baselworld includes a limited-time, limited-purpose private arbitration forum, translated in English as “the Panel.” Here’s the Baselworld page about “the Panel”: “The Panel is an arbitration board within the show that deals with complaints about violations of intellectual property rights during the BASELWORLD Watch and Jewellery Show. The complaints procedure is provisional in nature. It grants the successful applicant temporary legal protection within 24 hours and ensures that intellectual property rights are respected and that peace is maintained at the show.”

Exhibitors are required to consent to the “jurisdiction” of the Panel. Its powers cover the full range of IP claims and related rights (trademark, copyright, patent, unfair competition), but procedures are relatively informal, and sanctions are limited to removal of the offending item(s), and perhaps closure of the offending exhibition pavilion, during Baselworld itself. The online summary notes, “If the legal dispute is continued before an ordinary court, the decisions of the Panel may be used as expert opinions if need be.” I don’t know what that means.

Justifications for special purpose tribunals like this one often rely on blends of private interest (my paraphrase: “the participants consented to the panel’s authority”) and public rule (again: “the panel is empowered to adjudicate claims regarding patent rights”). I wonder whether we have a persuasive general account of these hybrids. (Some of the “New Governance” work in the US, and its European cousin, focuses in part on this question, but only in part.) They’re increasingly common, and in some areas, quite important. For domain names, there is the Uniform Domain Name Dispute Resolution Policy (UDRP). For screenwriters, there is the arbitration system administered by the Writers Guild of America. Major League Baseball players submit to “baseball arbitration.” (Since “baseball arbitration” has become an ADR term of art, linguists will note the redundancy. What kind of arbitration would baseball players submit to – other than baseball arbitration?) Not suprisingly, with fantasy baseball comes fantasy baseball arbitration. The sporting world also brought us a special purpose tribunal at the edge of fantasy, the “Eagles Court” that operated at the old Veterans Stadium in Philly to deal with fans who had an uneasy relationship with reality.

Of course the “Eagles Court” was a real court, with a real judge. It just happened to be located in a stadium, not in a courthouse. Baselworld, the UDRP, the WGA procedures, and “baseball arbitration” are forms of private arbitration. So to some folks, the interesting questions don’t have to do with the public/private blends that generate the authority of special purpose tribunals (those questions might be answered easily). Instead, the interesting questions have to do with institutional design. How “closed” does the relevant community need to be (if it needs to be “closed” at all)? Relatedly but distinctly, what kind of assent to the authority needs to be present? How transparent and fair do relevant procedures need to be, and whose standards of transparency and fairness apply? What is the “right” relationship between the rulings of the special-purpose tribunal and traditional public authority?

Curiously, the one question that the Panel might answer authoritatively at a watchmakers’ convention appears *not* to be part of its mandate.

There is no Baselworld procedure for settling disputes over what time it is.

A Right to Be Punished?

Michael Madison — Tue, 12 May 2009 20:29:08 +0000

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the ~~Mavs~~ Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Mavericks’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent. (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions. That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both. Wright didn’t choose to foul; he was told to foul.

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing. A sporting event between two teams is a kind of competitive commons. Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport. That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community. ”Ordinary” fouling in basketball is a weird way of giving back to the game. *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport. Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free: If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage. Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated. The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons. Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two. One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.

Open Source Initiative on Google Book Search Settlement

Danielle Citron — Wed, 06 May 2009 22:57:40 +0000

As Frank and others have highlighted at CoOp, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries. Robert Darnton describes Google’s book scanning project as nothing short of an attempt to control access to the “single most comprehensive collection of books since the Library of Alexandria.” Authors and publishers brought a class action suit against Google, alleging breach of copyright. Judge Denny Chin is currently considering the class certification motion and the parties’ settlement proposal. In response to wide-spread criticism of the proposed settlement, Judge Chin recently granted a four-month delay to allow more time for discussion and analysis of the proposal.

Superb guest blogger James Grimmelmann has offered thoughtful commentary on the proposed settlement and now is spearheading an open source initiative to garner public input on the controversial proposed settlement. Later this month, Grimmlemann will introduce “The Public Index,” a website that will feature discussion forums, a comprehensive archive of settlement documents and related commentary, and a tool for users to insert their analysis and commentary on individual paragraphs of the proposed settlement. Although the website responds to a lawsuit, it ultimately can provide Congress and agencies insight into the issue should the court reject the settlement.

The proposed settlement raises issues of great importance, from the contours of the fair use principle and Google’s potential monopoly over the largest digital library (remniscent of Frank’s testimony concerning the failed Google-Yahoo deal) to the absence of due process protections of orphan works (i.e., works for which it is impossible to locate the appropriate rights holders to seek permission to digitize) whose rights would be adjudicated if the class is certified and settled. This description merely touches the surface of the issues at stake. Pamela Samuelson has important commentary on the issue as do many others. Suffice it to say that the Public Index Initiative will no doubt be an important resource for the court (and possibly the legislature) in addressing this perplexing issue.

Should We Have Professional Juries?

Daniel Solove — Fri, 20 Mar 2009 18:04:16 +0000

According to Legal Profession Blog:

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.

What should one conclude from this case?

The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .

Additionally, jurors are usually prohibited from taking notes. . . .

In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

Third, many judges disallow note-taking. But in lengthy trials — or even in trials lasting a day or two — how are jurors supposed to remember the details? And in the case Martin describes, the jurors weren’t allowed to take notes about the law when the judge instructed it. I’d like to try an experiment — give a bunch of judges an hour lecture about a specific set of legal rules, not let them take notes, and then see how much they remember. This is difficult even for those with legal training — imagine how hard it must be for those without such training!

Many law professors rail against student-run law reviews, where students select the articles. “How can we let a bunch of amateurs decide which scholarly articles have merit?” so many professors wonder. Professors complain more about this than our legal system, where we have a bunch of amateurs decide cases and apply the law. As Justice Oliver Wendell Holmes once wrote: “[I]f a question of law is pretty clear we [judges] can decide it, as it is our duty to do, if it is difficult it can be decided better by twelve men taken at random from the street.”

At least in civil cases — and perhaps in criminal ones too (this gives me more pause, for the jury’s ability to check the power of the state in criminal cases has significant value in my opinion) — I believe we should have professional juries, with basic knowledge of the law (and perhaps even a full three-year legal education).

In addition to basic knowledge of the law, professional juries should also be trained in the latest empirical evidence that would help them best assess the factual evidence in a case. Jurors should be trained in the studies about the reliability of eyewitness testimony (which isn’t very reliable) so they can weigh it appropriately vis-a-vis other evidence. They should be trained about which cues and aspects of a witness’s demeanor are likely to indicate whether he or she is telling the truth, as currently jurors use their own intuitions in this regard, which may or may not be correct. And so on.

Jurors should be paid a real wage for their services. Currently, we slough off the costs of our legal system on people randomly selected for jury duty.

We’re in the 21st Century, and our legal system uses a method of adjudication that was invented in the Middle Ages. It’s time for a more professional way of resolving legal disputes, one where the decisionmakers are not a bunch of often-unwilling people plucked from the street, forced to upend their lives to resolve the disputes of others, and without the expertise to evaluate the facts and apply the law.

Sometimes You Just Cannot Sue

Danielle Citron — Thu, 16 Oct 2008 20:36:27 +0000

According to BBC News, the suit entitled Ernie Chambers v. God has met its maker. Nebraska state senator Ernie Chambers sued God in federal district court, seeking a permanent injunction to prevent “death, destruction and terrorisation.” The complaint alleged that God had threatened the plaintiff and the people of Nebraska and had inflicted widespread death and destruction “upon millions of the Earth’s inhabitants.” The court dismissed the case on the grounds of insufficient process: because the defendant has no address, legal papers cannot be served. The court apparently rejected the plaintiff’s argument that “since God knows everything, God has notice of the lawsuit.”

News for Civil Procedure Fans

Danielle Citron — Wed, 01 Oct 2008 16:17:35 +0000

During the fall semester, my civil procedure class covers personal jurisdiction. While most personal jurisdiction cases tend towards the staid, Calder v. Jones provides some possibility for fun. As my comrades in civil-procedure arms will know, the case involves a defamation suit brought by Shirley Jones, the mother from the Partridge Family. Every semester, this connection has great promise to generate some good cheer about the case, but of late I have been disappointed. This year, I desperately asked: “Don’t you remember the Music Man? or the Partridge Family?” (I thought about singing “I think I love you” but thankfully I ignored that foolish impulse). All I got was blank stares, a clear sign that I am helplessly unhip. My disappointment, however, may come to an end: NBC has just announced plans to reinvent the Partridge Family for prime-time television. Now, I just have to hope that my future students tune in. Amidst all of terrible news about the economy, this may lift spirits, even momentarily for civil procedure fans.

GMAC v. HTFC: Update on the World’s Worst Deposition

Dave Hoffman — Wed, 20 Aug 2008 23:33:55 +0000

I’ve blogged before about GMAC v. HTFC, criticizing Judge Robreno’s contempt ruling against attorney Joseph Ziccardi:

The big picture question here is the degree to which attorneys should be punished for failing to affirmatively prevent their clients’ incivility. Some punishment of this client is certainly warranted. But punishing the “mild-mannered” solo practitioner attorney as if he were equally culpable goes too far. I hope that the Court walks it back a bit.

Guess Judge Robreno isn’t a reader of the blog. On August 13, he issued a memorandum and opinion denying the motion to reconsider his judgment. (Read Part I and Part II). The gist, putting aside the high bar for reconsideration & the procedural objections, is that the Court found it appropriate to fine Ziccardi $30K for failing to stop his client from being obstructive at the deposition, even while accepting that he had vigorously counseled his client “offline” to behave. Ziccardi’s silence during the deposition was, per se, sanctionable.

Appellate standards for review of discovery orders being what they are, I guess that Ziccardi won’t prosecute an appeal, but this decision strikes me as overreaching.

Monster Cases

Dave Hoffman — Thu, 14 Aug 2008 21:45:04 +0000

Here’s a challenge: what’s the oldest active litigation pending in the federal district courts? I’m coding dockets (as always) and I came across a monster in the Southern District of Ohio that has been pending since 1991 (it’s a CERCLA case relating to the United Scrap Lead site located in Troy Ohio). The government continues, it seems, to seek pockets to pay cleanup costs, seventeen years into the case.

Can you beat that?

(Image Source, Wikicommons, Folio 148v of the Apocalypse of St. Sever (St. Sever Beatus), The horses with heads of lions.)

Oddities from Docketland

Dave Hoffman — Mon, 07 Jul 2008 20:08:14 +0000

I’m hip deep in my latest docketology project, which, on my end, involves organizing lots of RAs who read many dockets and code them. Apart from the $10/hr wage, and the occasional lunch, the only thing my RA team gets in return for spending too much time on this tedious task is the chance to see a few small nuggets of random nuttiness emerging from the glorious mess that is our litigation system. Take, for example, this claim:

“TRAVEL BARGAINS USA is reasonably assumed to have a Corporate Charter or otherwise a Mission Statement which does not include as part of its ordinary Charter the act of threatening such other business entities as Plaintiff A VACATION 4 YOU, by, for example, stating that You’re up shits creek because if you do not honor the certificates, or refund our money in full on the distributorship, we WILL put you out of business. It will only take a few complaints from people. You started this war, and now you have to deal with ME! “

Of course, such nutbar pleading rarely survives judicial scrutiny. It’s thus a surprise to see one particular set of phrases repeated in over a dozen totally distinct, veil piercing cases:

“Any character assassination will activate Instrumentality Rule and pierce the corporate veil of the United States and all agencies,”

and

“All testimony will be without immunity – piercing the corporate veil and Instrumentality Rule.”

My RAs and I have tracked this language, which sometimes appears in a counterclaim and sometimes in the complaint, to The Court Watcher’s document page, which lists a “counter-claim“. That document, in turn, appears to suggest that filers ought to check to see if the other side has violated any particular provisions of the declaration of independance as a way to frame their pleading. I particularly like the following form paragraph:

“Was there a treaty or alliance or letter of Marque and reprisal imposed against you by the public servant? __ Yes __ No Explain”

A letter of marque? Avast mateys!

Tribal Court Jurisdiction (II)

Max Minzner — Wed, 02 Jul 2008 16:00:00 +0000

Yesterday I argued that Plains Commerce Bank has a number of flaws. Today I want to discuss the fundamental uniqueness of tribal court jurisdiction in the American system. (As a caveat, the following analysis is intentionally brief and leaves out much of the complexity of the field to keep it relatively generally accessible.)

Several aspects of tribal jurisdiction are unusual and make it difficult to compare the limits on tribal courts to those on non-tribal courts. For instance, does Plains Commerce Bank impose a subject matter jurisdiction or a personal jurisdiction limit on the tribal court? The answer, of course, is that it is both. The case depends on the identity of the land owner and the nature of the regulated activity.

More fundamentally, the Supreme Court has assumed that tribal courts are different from all other courts. The general American rule is that all courts have concurrent jurisdiction if they have personal jurisdiction. On facts equivalent to those in Plains Commerce Bank, you could imagine a New York bank created a series of long-term contractual relationships with a California company relating to land located in California. If the California company wanted to bring tort and contract claims arising from that relationship, there’s no real doubt that the bank could be sued in either New York or California after Burger King. If courts are worried about the conflict between the interests of the two states, they resolve the conflicts through a choice of law regime. As Plains Commerce Bank shows, though, with some exceptions, there is generally an exclusive jurisdiction model when it comes to tribes and the interest question is resolved at the jurisdictional stage. If the Supreme Court thinks the tribe does not have a sufficient interest, it is not forced to apply a different law – it lacks jurisdiction completely.

Why does the Court do this? The answer lies in a second oddity of tribal jurisdiction. Even as the Supreme Court assumes tribes are different from all other courts, it assumes that all tribal courts are identical. The Court has consistently expressed a deep (and in my view, unfair) suspicion of tribal courts. The Chief Justice repeats this suspicion in Plains Commerce Bank when he notes that “Indian courts differ from traditional American courts in a number of significant respects,” and that “non-members have no say in the law and regulations that govern tribal territory.” (The Court also states “the Bill of Rights does not apply to Indian tribes.” Even though the Constitutional Bill of Rights does not apply in tribal court, a largely equivalent statutory set of right applies through the Indian Civil Rights Act.). For this proposition, Plains Commerce Bank relies on Justice Souter’s concurrence in Nevada v. Hicks, where he said:

Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts mirror American courts and are guided by written codes, rules, procedures, and guidelines, tribal law is still frequently unwritten, being based instead on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices, and is often handed down orally or by example from one generation to another. The resulting law applicable in tribal courts is a complex mix of tribal codes and federal, state, and traditional law which would be unusually difficult for an outsider to sort out.

(citations and quotations omitted). At its core, this is a due process fear. The Court believes that non-members should not be subjected to tribal jurisdiction because all tribal courts will be unfair. Of course, if that is the issue, we should see this as a factual question. If the concern is tribal court fairness, we should start treating tribes differently and ask whether the applicable tribal court system in a given case is in fact “difficult for an outsider to sort out.” If it is, there is an argument that a limited jurisdiction model makes some sense. Tomorrow I’ll argue, though, that in the vast majority of cases, this fear is unfounded and tribal court systems are fair and comprehensible. I will also discuss what Plains Commerce Bank would have looked like if we treated tribes differently.

Tribal Court Jurisdiction

Max Minzner — Tue, 01 Jul 2008 22:42:01 +0000

Thanks to Dan and the rest of the Concurring Opinions staff for having me here this month. I’ve been reading the blog since its inception and I’m thrilled to get the chance to be a part of it.

I am a little late to the party, but I thought I would join in the chorus of commentary on last week’s developments in the Supreme Court. I’m talking, of course, about Plains Commerce Bank v. Long Family Land & Cattle Co., the Court’s most recent foray into the jurisdiction of tribal courts, one of my research areas. (I think the court might have decided another case as well).

In Plains Commerce Bank, the plaintiffs were members of the Cheyenne River Sioux tribe who were leasing land within the reservation boundaries from the defendant bank. The plaintiffs had an option to buy the land but were financially unable to exercise the option. They attempted to renegotiate the terms without success. When the bank sold the property to non-tribal members, the plaintiffs sued in tribal court, claiming that the bank discriminated against them by offering them less favorable terms on the sale than were offered to the actual buyers. (They also raised tort and contract claims not before the Supreme Court). As is often true, the Court decided the question of tribal court jurisdiction on purely formalist grounds; the case turned on the status of the land and the parties. Because the bank was not a tribal entity and owned the land underlying the claim in fee simple, the Court held that the tribe did not have any interest in the identity of the owner of the land and as a result, the tribal court lacked jurisdiction. By contrast, if the land had been tribal land or if the dispute involved only tribal members, tribal court jurisdiction would have been clear.

There is a lot wrong with this decision. First, everyone agrees that under Montana v. United States, tribes “may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” (This is sometimes called the “first Montana exception”). The exception should allow tribes to enforce a non-discrimination norm against those who contract with tribal members. Moreover, the Court’s opinion has a simple factual flaw. The Court held that the tribe lacks any interest in who owns land within reservation boundaries. That conclusion is at odds with the long history of the interaction between tribal members and non-members– tribes are deeply concerned with the ownership and use of lands within reservation boundaries. This interest is especially strong in cases involving not just land ownership, but discrimination against tribal members in favor of non-members. You can see this simply by looking at how this land ended up being owned in fee simple. Ownership of land by non-tribal members within reservation boundaries is very common. In a deliberate attempt to eliminate tribes, Congress passed the 1887 General Allotment Act which removed tribal land from its traditional trust status and allotted small parcels in fee simple to tribal members while declaring the rest of the land surplus and turning it over to settlement by non-tribal members. By the time the Act was repealed in 1934, many of the allotments had been lost to non-members, leading to a checkerboard pattern of land ownership. Small parcels of land owned in fee simple can surround and be surrounded by tribal land. (A map showing this checkerboarding on the South Dakota Rosebud Reservation is available here.). As a result, having jurisdiction turn on the status of the land causes serious headaches for tribes.

What I want to consider, though, is the larger question of how we ended up on this path. If you teach Civil Procedure, this entire approach of determining jurisdiction based on land ownership and party identity should sound strange and outdated. This method is far more like Pennoyer than International Shoe. So what happened? The answer is that jurisdiction in Indian Country is complicated and often unrelated to jurisdiction in other contexts. I’ll argue in my next post that the Court took this road as a result of deep and unfair assumptions about the nature of tribal courts.