Civil Procedure Prof Blog

A Call for Papers

We received this call for papers from the Journal of Court Innovation:

Dear Colleagues,

The Journal of Court Innovation is soliciting articles concerning the future of commercial litigation and e-discovery.  Articles can concern the federal or any state justice system and there is no page length requirement.

Articles will be published in conjunction with the New York State Judicial Institute Colloquium on the Future of Commercial Litigation: Developing a Cost-Efficient Judicial Process for the Electronic Age.  Chief Justice Judith Kaye will open the event and will be followed by distinguished members of the judiciary, the bar and the educational academy.

The Journal of Court Innovation is a peer reviewed journal that is a combined effort between the New York State Judicial Institute (White Plains, NY), the Center for Court Innovation (New York) and Pace Law School (White Plains, NY).   The journal's mission is to promote innovation among the 50 state court systems and seeks to "bridge the worlds of theory and practice."  It is targeted to court administrators, judges, lawyers, scholars, non-profit executives, legislative and executive branch officials and other professionals interested on improving court systems and the administration of justice. Additional information about the journal can be found at http://www.courtinnovation.org/journal.html.

If you are interested in submitting a paper for consideration please contact Prof. Leslie Yalof Garfield at lgarfield@law.pace.edu. Final drafts should be submitted by December 30, 2008 for consideration in this edition

We also welcome articles on any topics that consider court innovation for publication in future editions.

Levine

The Supreme Court heard oral argument in the Levine case today.  Listen to NPR's story on the case here.--Counseller

Daubert and Halloween

It's the day after Halloween, but Mark Herrmann's punny little Halloween-Daubert post is still midly amusing.  (Mildly, Mark).  Here's an excerpt:

"Multidistrict litigation courts are often confronted with evaluating limited or evolving scientific and medical theories and evidence. . . . . The Rules of Evidence, however, cannot be disregarded even if at a future date, medical and scientific literature proves the contrary. As Judge Richard Posner put it, 'the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.'" Id. at 103 (citation omitted). 100 Grand bar!

--RR

Judicial Compensation and the Definition of Judicial Power in the Early Republic

Northwestern Prof. Jim Pfander recently posted Judicial Compensation and the Definition of Judicial Power in the Early Republic on SSRN. Click the article name to download it.  The abstract follows:

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.

This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.

--RR

How to Read the Constitution

The Wall Street Journal has published an excerpt of Justice Clarence Thomas's remarks to the Manhattan Institute last Thursday.  The WSJ piece is titled "How to Read the Constitution."  Read the piece here.--Counseller   

Forum Shopping and the Infrastructure of Federalism

James E. Pfander discusses the advantages of plaintiff win rates through the process of forum shopping in Forum Shopping and the Infrastructure of Federalism posted on SSRN.com.--Counseller

Cert. Granted

Last November, I reported on the HIF Bio case from the Federal Circuit, concluding that "it wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that now a circuit split exists."  Today the Court granted the Cert. Petition.  Click here for the relevant links at SCOTUSBLOG.

--RR

En Banc 5th Circuit decides In Re: Volkswagen

Back in May, we reported on a In Re: Volkswagen of America.  The case involved a transfer-of-venue issue that was substantial enough to draw an amicus signed by 14 law professors  (neither of us signed).  The 5th Circuit released its en banc opinion on Friday.  Judge Jolly wrote for the 10-member majority, granting the petition for mandamus and ordering the district court to transfer the case.  Judge King wrote for the 7-member dissent.  --RR

Problems with Proposed Rule 56?

Prof. Adam Steinman recently posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process. The abstract follows:

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.

--RR

Fifth Circuit Rules on the Citizenship of a LLC for Purposes of Diversity Jurisdiction:

As noted on Federal Civil Practice Bulletin, the Fifth Circuit in Harvey v. Grey Wolf Drilling Co., --- F.3d ----, 2008 WL 4194538 (5th Cir. Sept. 15, 2008) joined the First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits in holding that, for the purposes of diversity jurisdiction, the citizenship of an LLC is determined by the citizenship of all of its members.  Click here to read the Fifth Circuit’s opinion and here to read to post on Federal Civil Practice Bulletin.--Counseller/JM   

Recent Scholarship

The following two articles might interest our readers:

• Prof. Paul Lund, Federally-Chartered Corporations and Federal Jurisdiction
• Prof. Austen Parrish, Sovereignty, Not Due Process:  Personal Jurisdiction Over Nonresident, Alien Defendants

--RR

Regulatory Competition, Venue and Delaware's Stake in Corporate Law

Delaware has a near monopoly on desirability for incorporation. However, this monopoly might be faltering with the increase in the fight over venue. Faith Stevelman posted Regulatory Competition, Venue and Delaware's Stake in Corporate Law on SSRN.com looking at the increased fight over venue and the possible negative effects of this litigation.--Counseller

Sponge Bob to the Rescue

Hurricane Ike has significantly damaged the Texas coast, including the city of Houston, home to law firm Vinson & Elkins.  Many of Houston's millions of residents are still without power and other basic services.  To help lawyers cope with problem, V & E allowed their Houston lawyers (still without childcare) to bring their children to work with them.  V & E treated the kids to snacks and a Sponge Bob marathon in one of their mock courtrooms.  Read more here over at the ABA Journal.--Counseller

Preservice Removals and Appellate Review

While we've occasionally posted about preservice removals, Beck and Herrmann have done the heavy lifting.  In today's installment, they ask for appellate guidance.  Lower courts are split on whether a case can be removed when it contains a forum-state-citizen defendant who has not been served with process before removal. (see 28 U.S.C. s1441(b)).   A remand on this ground is unreviewable on appeal, and a denied remand motion is interlocutory.  So, they "urge some court to deny a motion to remand and then certify the jurisdictional question for interlocutory appeal, which would let an appellate court weigh in on the question and give trial judges (and litigants) some much-needed guidance." --RR

Balancing the Pleading Equation

Paul J. Stancil posted Balancing the Pleading Equation on SSRN, which explores the asymmetries of cost and information in the pleading system and how to strike the right balance between these considerations.--Counseller

"To the extent it is correct"

Recently, the Sixth Circuit decided In re Hamilton, a case involving interesting questions of preclusion, Rooker-Feldman, the Anti-Injunction Act, and discharge in bankruptcy.  Essentially, the bankruptcy court declared some debts discharged.  Later, a state court decided against tthe debtor, interpreting the discharge order to exclude a debt.  The state appellate court affirmed.  After some more procedural wrangling, the debtor returned to ask the bankruptcy court to enjoin execution of the state-court judgment. 

Generally, when there's an alleged exception to the Anti-Injunction Act based on the effect of a federal judgment, the party seeking a federal-court injunction must ask the federal court for the injunction before the state court rules on the issue.  The injunction seeker generally has two options, not three-- (1) she CAN litigate the issue in state court and appeal any adverse ruling (theoretically to the USSCT because the effect of a federal judgment is a federal-enough issue for s1257 jurisdiction); (2) she CAN seek an injunction in federal court under an AIA exception before the state court rules on the effect of the allegedly preclusion/effective federal judgment; (3) but she CANNOT have two bites at the apple by arguing the effect in state court and then resorting to a constructive appeal in federal court if the state court does not buy the preclusion (or effectiveness) argument.

In In re Hamilton, the Sixth Circuit decided that two bites at the apple are available in this context:  "A bankruptcy court can find that a postpetition state court judgment is void despite the full faith and credit normally given to state court judgments."  Although I am admittedly not a bankruptcy scholar, I must tentatively disagree with any "exception" based on the following reasoning:

[A]lthough state courts have unbridled authority to determine the dischargeability of debts, state courts have the authority to interpret a bankruptcy courts discharge order only to the extent that the state court's interpretation is correct.

--RR

OK, Discovery’s a Problem, But What Can Be Done About It?

Martha Neil has written a piece titled OK, Discovery’s a Problem, But What Can Be Done About It? on abajournal.com. The piece looks at the problems facing the discovery process and explores various possible solutions.--Counseller

'U Can't Touch This' Litigation Hold

Check out 'U Can't Touch This' Litigation Hold by Stanley P. Jaskiewicz over at LAW.com.  The piece explores the IT litigation hold and how the Federal Rules of Civil Procedure deal with the problem of litigation holds and ever expanding electronic data.--Counseller

"A Unified Theory of 28 U.S.C. s1331 Jurisdiction"

Click here to download A Unified Theory of 28 U.S.C. s1331 Jurisdiction, which Michigan State Law Prof Lou Mulligan recently posted on SSRN.  The abstract follows:

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 jurisdiction is best understood as a function of the federal right and cause of action plaintiff asserts. Under my view, these two concepts, when weighed against each other, offer strong evidence of congressional intent to vest the federal courts with jurisdiction and form the foundational elements for the federal question jurisdictional analysis. This principle underlies three standards which offer both a better explanation of the Court's past section 1331 cases and better guides for future decisions than the Holmes test. Under the first standard, section 1331 jurisdiction lies when a plaintiff makes an assertion of a non-judicially created federal cause of action and a mere colorable assertion to a federal right. Under the second standard, section 1331 lies when a plaintiff alleges a state-law cause of action and asserts a more weighty substantial federal right. Finally, under the third standard, section 1331 jurisdiction lies when plaintiff asserts a cause of action created as a matter of federal common law and plaintiff asserts a substantial federal common law right coupled with a sufficient showing to support the right

--RR

Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act?

Jarrod Wong posted Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act? on SSRN, which looks at the Federal Arbitration Act and examines whether courts or arbitrators determine the impact of the res judicata doctrine.--Counseller