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Category: Civil Procedure

1

The Public and Private Goods Produced By Litigation

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.

5

RECAP Already Proving Its Power?

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.

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

recap-diagAs 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.

12

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

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

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

The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)
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16

A Right to Be Punished?

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?

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0

Open Source Initiative on Google Book Search Settlement

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.

24

Should We Have Professional Juries?

jury2.jpgAccording 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.

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2

Sometimes You Just Cannot Sue

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.”

3

News for Civil Procedure Fans

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.