Archive for the ‘Civil Procedure’ Category
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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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
May 17, 2010 at 8:54 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, Law Practice, Sociology of Law
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Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)
posted by Tamara Relis
I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.
CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:
Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.
PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY
Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.
The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’
‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months
‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months
‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years Read the rest of this post »
May 11, 2010 at 12:00 am
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Health Law, Insurance Law, Interviews, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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What are we missing when we think about case processing in litigation and mediation?
posted by Tamara Relis
Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.
The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.
Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).
May 3, 2010 at 4:29 pm
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Feminism and Gender, Health Law, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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Eight Months of Iqbal: Part 3
posted by Adam Steinman
In this last of three posts on Twombly and Iqbal, I want to talk about the bills now pending in Congress (one in the House and one in the Senate) to overturn these two decisions.
The Notice Pleading Restoration Act (S. 1504) would provide:
Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
The Open Access to Courts Act (H.R. 4115) would provide:
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
Legislation along these lines would certainly be valuable to the extent that it would foreclose some common misreadings of Twombly and Iqbal that would indeed result in a much stricter pleading standard. As I explain in my earlier post, however, Twombly and Iqbal should not be read as allowing courts to disregard allegations for lack of “plausibility.” What was fatal in Twombly and Iqbal was the fact that allegations necessary to establish a claim for relief were, in the Court’s eyes, presented as “mere legal conclusions.” The plausibility inquiry (which, as H.R. 4115 suggests, assesses whether the nonconclusory allegations are sufficient to raise an inference of liability) is actually a method to save complaints that otherwise rest on mere conclusory allegations.
Nor should Twombly and Iqbal be read to overturn longstanding notice-pleading precedents like Conley. Read correctly, the framework established by Twombly and Iqbal is not inconsistent with (to quote S. 1504) “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.” Admittedly, Twombly set aside Conley‘s “beyond doubt . . . no set of facts” language (which H.R. 4115 would explicitly reinstate). But what Twombly “retire[d]” was merely what it called a “focused and literal reading” of this phrase that would have precluded dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” The Supreme Court had never read Conley this way. If it had, a complaint that alleged nothing more than “The planet Earth is round” would survive, because any number of actionable facts might be consistent with the Earth being round.
Properly understood, Conley did not preclude dismissal as long as any set of facts would entitle the plaintiff to relief. It precluded dismissal unless “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This merely confirms that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. But the Twombly majority itself endorsed this idea; it wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” The dispositive question is — and always has been — what makes something a “well-pleaded complaint”? Conley and Twombly provide the same answer: “all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
January 22, 2010 at 9:57 am
Posted in: Civil Procedure, Supreme Court
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Eight Months of Iqbal: Part 2
posted by Adam Steinman
In my earlier post, I argued that the Supreme Court’s approach to pleading in Twombly and Iqbal is not necessarily inconsistent with the pre-Twombly notice-pleading framework. On a correct reading, the admittedly-problematic plausibility inquiry is not a basis for disregarding allegations in a complaint. When a complaint provides non-conclusory allegations for each element of a claim for relief, those allegations must be accepted as true, without regard to their “plausibility.”
There is no doubt, however, that the lower federal courts are paying a lot of attention to Twombly and Iqbal. My article The Pleading Problem ranks Supreme Court decisions in terms of the frequency with which they have been cited by federal courts. The figures in my current draft were as of June 30, 2009 (they will be updated in the final version). But even then, Twombly was #17 all-time with over 14,000 citations by federal courts. As of today, its count is nearly 22,000, which will place it very comfortably in the top-10. Iqbal is just getting started, but over the last eight months it has been cited at a remarkable rate of over 600 decisions per month.
That said, an opinion’s citation frequency alone doesn’t tell you what courts are actually doing with that opinion. That’s the far more interesting question. There are certainly federal courts whose approaches to pleading after Iqbal reflect a much stricter standard. Jon Siegel identified a slip-and-fall case in an earlier Concurring Opinions post, Alexi Lahav has noted some others on the Mass Tort Litigation Blog, and I mention a few in my forthcoming article. In this post, I want to flag some cases where the lower federal courts are at least on the right track.
January 21, 2010 at 2:02 pm
Posted in: Civil Procedure, Supreme Court
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Eight Months of Iqbal
posted by Adam Steinman
It’s hard to imagine a topic in civil procedure that has garnered more attention recently than pleading standards. The Supreme Court’s decision last Term in Ashcroft v. Iqbal (which embraced its controversial 2007 decision in Bell Atlantic v. Twombly) prompted an onslaught of commentary and critiques (including a couple of excellent Concurring Opinions posts by Jon Siegel here and here). Particularly troubling about these decisions is the idea that judges should subjectively determine — without hearing any evidence or testimony — whether the plaintiff’s claim is a “plausible” one. The Iqbal decision hit its 8-month anniversary this week, so I figured I’d take this opportunity to share a few thoughts on federal pleading standards in the post-Iqbal era. I’m hoping to follow up with posts about how the lower courts have been handling Twombly and Iqbal, and on the proposed legislation now pending in the House and Senate to overturn these decisions.
First off, I agree with many of Twombly‘s and Iqbal‘s critics. At best, these rulings appear to be result-oriented decisions designed to terminate at the earliest possible stage lawsuits that struck the majorities as undesirable. And inviting the “plausibility” concept into pleading doctrine was extremely problematic. It would be doubly unfortunate, however, if courts compound these troubling decisions by misreading them to drastically change federal pleading standards going forward. As I argue in my article The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), a careful reading of these cases reveals an approach that is not necessarily inconsistent with the notice-pleading framework that most attorneys, judges, and professors alive today learned when they were in law school.
How is this possible? For starters, the majorities in Twombly and Iqbal left the core principles of the notice-pleading era in place. Twombly, in fact, explicitly endorsed Conley v. Gibson‘s command that the complaint must merely “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Although Twombly abrogated one phrase from Conley (that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) this phrase was never taken as literally as the straw man that Twombly struck down. The true meaning of this phrase was simply that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. As to this point, Twombly is completely on board; Justice Souter wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”
January 21, 2010 at 9:05 am
Posted in: Civil Procedure, Supreme Court
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Justice Sotomayor, Civil Procedure, and the “Tradition” of Unanimous Debut Opinions
posted by Adam Steinman
Yesterday brought the Supreme Court’s first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:
“The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.”
The issue of when interlocutory district court orders can be immediately appealed is one that’s particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).
Justice Thomas’s concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court’s result, Justice Thomas writes that Justice Sotomayor’s opinion “needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit.” He concludes:
“I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”
Some have argued that Justice Thomas’s opinion contravenes the Supreme Court’s “tradition” that a new Justice’s first opinion be a unanimous one. (See Eric Muller’s post at The Faculty Lounge: Clarence Thomas “Welcomes” Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as “testy” and “a swipe at his new colleague.” On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor’s opinion (“I concur in the judgment and in Part II-C of the Court’s opinion”). What do folks think?
At the end of the day, maybe it doesn’t really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court’s most junior Justice. Could there be a “Curse of the Nonunanimous Debut Opinion”?
(Cross-posted at the Civil Procedure & Federal Courts Blog)
December 9, 2009 at 2:36 pm
Posted in: Civil Procedure, Supreme Court, Uncategorized
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Commentary on The Federal Courts Jurisdiction and Venue Clarification Act of 2009 (H.R. 4113, now in Congress)
posted by Adam Steinman
Now pending before Congress is H.R. 4113, a.k.a. The Federal Courts Jurisdiction and Venue Clarification Act. The Act could certainly use a workup by the House Acronym Committee (maybe I have soccer on the brain after Friday’s World Cup draw, but “FC JAVCA” sounds like it could be a mid-tier European football club). All kidding aside, the Act makes a number of commendable improvements, many of which were recommended by a recent project of the American Law Institute (ALI).
For more information on the bill, see the Library of Congress’s website here. The full text of the bill is available here(.xml format) or here (.pdf format). Earlier coverage of the bill is here. Among other things, the Act would amend Title 28 with respect to removal and remand procedure, venue, and actions involving permanent resident aliens and foreign corporations and insurers. This post summarizes (and flags some potential concerns with) the Act’s provisions dealing with the amount in controversy required for diversity jurisdiction. Under current law, the amount in controversy must exceed $75,000.
First, the Act would index the amount-in-controversy threshold to automatically adjust for inflation. [Act, § 103.] Beginning in 2011, the $75,000 threshold would be adjusted every five years according to the percentage change in the Consumer Price Index. If you’re worried about the amount in controversy becoming $83,516.44, have no fear; the amount will be rounded to the nearest multiple of $5,000.
Second, the Act has a number of provisions dealing with a plaintiff’s ability to preclude diversity jurisdiction by declaring that it will neither seek nor accept a judgment in excess of the amount in controversy threshold. [Act, § 104.] Making such a declaration in state court will prevent removal to federal court “as long as the plaintiff abides by the declaration and the declaration is binding under the laws and practice of the State.” If the plaintiff fails to abide by this declaration, the case can be removed within 30 days after the defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained” that the plaintiff seeks or is willing to accept a judgment in excess of the threshold for diversity jurisdiction. The Act also provides that a removed case may be remanded to state court if the plaintiff makes a similar declaration in federal court within 30 days of removal. In that situation, “the district court shall remand the action to State court unless equitable circumstances warrant retaining the case.”
One possible concern with these provisions is that they do not allow “re-removal” if the plaintiff who makes the declaration in federal court then reneges on the declaration after getting back to state court. The new language that would allow removal after a plaintiff reneges applies only “[i]f the plaintiff has filed such a declaration in state court but thereafter fails to abide by that declaration.” (emphasis added)
Third, the Act codifies the general rule that “the sum demanded in good faith in the initial pleading [the state court complaint] shall be deemed to be the amount in controversy.” [Act, § 105(b), to be codified at 28 U.S.C. § 1446(b)(4).] It then provides that the notice of removal may assert the amount in controversy required for diversity jurisdiction where either (a) nonmonetary relief is sought, or (b) “State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.” The defendant must then establish to the federal court by the preponderance of the evidence that the amount-in-controversy threshold is met.
One concern with this provision is that it does not authorize the notice of removal to assert the amount in controversy if state practice does permit demand for a specific sum but the initial pleading just fails to make one. Arguably the notice of removal should be able to assert the amount in controversy in that situation as well.
I’m hoping to blog on other provisions in the Act in the near future. In the meantime, feel free to use the comments to share your own thoughts.
(Cross-posted on the Civil Procedure & Federal Courts Blog)
December 7, 2009 at 11:44 am
Posted in: Civil Procedure, Current Events
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14 Penn Plaza v. Pyett and the Fairness in Arbitration Act
posted by Michael Zimmer
Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!
I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.” Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.
Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.
Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.
Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.
The students raised some interesting points that did not necessarily agree with my position. Read the rest of this post »
December 2, 2009 at 5:49 pm
Posted in: Civil Procedure, Civil Rights, Employment Law, Supreme Court, Uncategorized
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Congress Fixes Mistake!
posted by Adam Steinman
What should courts do when the “plain language” of a legal text would lead to troubling, unanticipated consequences? Should they wait for the text to be formally amended? Or should they literally take the law into their own hands and fix the problem themselves? I blogged earlier about the possibility that language in a 2005 amendment to the Texas Constitution could invalidate all Texas marriages (including my own!). I have an obvious personal stake in that particular issue, but I’m interested more generally in such problematic language, particularly in the context of civil procedure and federal jurisdiction. Today officially lays to rest a classic example of that — the 2005 Class Action Fairness Act’s 7-day “deadline” for appealing certain jurisdictional rulings.
The original language in 28 U.S.C. § 1453(c)(1) required that such appeals be brought “not less than 7 days” after the district court’s order. Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite — it imposed a 7-day waiting period and set no outer deadline. What’s the appropriate judicial response? Rewrite the statute by interpreting “less” to mean “more,” thereby imposing a 7-day deadline? Or adhere to the literal text, thereby imposing a 7-day waiting period with no outer deadline? For litigants, the only safe move was to appeal exactly 7 days after the district court’s order, which would make the appeal timely under either a not-more-than-7-days or a not-less-than-7-days standard.
I wrote about this problem in my article “Less” is “More”? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act’s Appellate Deadline Riddle, 92 Iowa L. Rev. 1183 (2007). Back then, every circuit to consider the question rewrote the statute and imposed the 7-day deadline, although six Ninth Circuit judges disagreed in a vigorous dissent from a denial of en banc review. My argument was that courts should adhere to the statute’s plain language (which would impose no outer deadline on CAFA appeals) and instead rely on Fed. R. App. P. 4′s default deadline of 30 days. The Seventh Circuit eventually adopted that approach, see Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), creating a circuit split that would force either Congress or the Supreme Court to resolve the issue.
Congress responded and, effective today, the problem is solved. Legislation enacted earlier this year provides: “effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days.’” Public Law 111-16, § 6(2). This is a commendable solution, but my sense is that such congressional initiative is the exception rather than the rule. A counterexample that civil procedure folks know all too well is the saga of the supplemental jurisdiction statute, for which uncertainty lingered from its 1990 enactment until – and perhaps beyond – the Supreme Court’s 2005 decision in Exxon Mobil v. Allapattah, now a staple in civil procedure casebooks. (If readers are interested, see my article on that decision, Sausage-Making, Pigs’ Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act, 81 Washington L. Rev. 279 (2006).)
December 1, 2009 at 12:38 pm
Posted in: Civil Procedure, Current Events
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Is Ricci a Significant Procedural Case?
posted by Michael Zimmer
Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.
Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?
Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:
“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”
Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?
November 15, 2009 at 9:42 am
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Employment Law
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The Employer’s Strategy in Gross v. FBL Financials
posted by Michael Zimmer
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).
For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.
The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.
The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.
For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.
November 4, 2009 at 10:43 am
Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized
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