Civil Procedure Prof Blog

2 USSCT Decisions

Today, the Supreme Court decided Carlsbad Technology, Inc. v. HIF Bio, Inc., a case whose Certworthiness was apparent even back in November of 2007.  Our readers will also be interested in today's Arthur Andersen, LLP v. Carlisle decision, which involves whether appellate courts have jurisdiction to review denials of stays required by litigants who were not parties to the arbitration agreement.  Visit SCOTUSBLOG for more information on these cases.  We'll likely have commentary on one or both decisions soon. --RR.

Staying Execution of a Mandate

Our own 10th Court of Appeals in Waco decided an interesting procedural case yesterday.  Chief Justice Gray's introduction cleanly states the issue:

In a prior proceeding, we were asked to decide certain issues. We did. We issued an opinion. In that opinion we decided only the specific issues presented to us by the parties then before us. We issued a judgment. Review was sought but denied. We issued our mandate.

The trial court has now allowed a new party to intervene in the proceeding in the lower court. The trial court has abated the proceeding until more parties are added to the proceeding in the lower court. The trial court has stayed the execution of the judgment.

We are now asked to compel the trial court to set aside these orders and enforce our mandate.

The court correctly determines that the trial court abused its discretion and conditionally issued the writ of mandamus.  Click here to download the full opinion.  -RR

Junior Faculty Federal Courts Workshop

THE SECOND ANNUAL

JUNIOR FACULTY FEDERAL COURTS WORKSHOP

 

October 22-23, 2009

 

The Michigan State University College of Law is pleased to announce that the Second Annual Junior Faculty Federal Courts Workshop will take place on its campus October 22–23, 2009. The inaugural workshop, held in April 2008 at the American University Washington College of Law, was a resounding success attended by junior scholars from 30 law schools, resulting in publications in numerous preeminent journals. We aim to continue this tradition.  

 

The workshop pairs junior and senior, federal-courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop are Susan Bandes (DePaul University School of Law), Martha Field (Harvard Law School), Martin Redish (Northwestern University School of Law), and David Shapiro (Harvard Law School).

 

Workshop Agenda

 

Drafts of papers will be distributed to participants prior to the workshop, which begins with dinner on Thursday, October 22. On Friday, October 23, following breakfast, two panels of junior scholars, composed of three to four persons each, will present papers in the morning.  After lunch, two panels of junior scholars will present papers in the afternoon.  Each panel will be assigned a senior scholar who will provide commentary on the paper and lead the group discussion.  

 

Invitees

 

The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course.  Those who do not currently hold a faculty appointment but expect that they will during the 2010-2011 academic year are also welcome.  There is no registration fee for this conference.

 

RSVP

 

Those who plan to attend the workshop are asked to RSVP by July 31, 2009 to Sally Rice at Michigan State University College of Law (events@law.msu.edu). Please indicate whether you will attend the dinner on October 22.

 

Persons wishing to present a paper are asked to e-mail an abstract by June 29, 2009 to Lou Mulligan (mulligan@law.msu.edu).  A committee of past participants will select papers no later than July 3, 2009.

 

Michigan State College of Law is pleased to provide all participants with meals while attending the workshop and has secured a block of rooms at a discounted rate.

--RR

FRCP Amendments

Prof. Ben Spencer reports here on recent Federal Rules amendments approved by the Supreme Court.   You can also click here for more information on the U.S. Courts page. --RR

Pleading and the Dilemmas of "General Rules"

Click the article title to download Pleading and the Dilemmas of General Rules, by Prof. Stephen B. Burbank.  The article will appear in the Wisconsin Law Review.  The abstract follows:

This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act's requirement of general rules, and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts the foundational assumptions that the Federal Rules are trans-substantive and that they cannot be amended by judicial interpretation. Similarly, in Iqbal, the Government presumably denies that it is calling for the imposition of a heightened fact pleading requirement in cases involving high government officials entitled to an immunity defense because the Court seems to have made it impossible for the judiciary openly to impose such a requirement other than through The Enabling Act Process. The Court may, however, take a different view of the appropriate contextual plausibility judgment than did the lower court in Iqbal. If so, however, the Court would thereby confirm the view that Twombly is an invitation to the lower courts to make ad hoc decisions reflecting buried policy choices. I therefore argue that, if the Court is persuaded that the changes already made to pleading jurisprudence are insufficient to accommodate the needs of the immunity defense, it should forthrightly require fact pleading as a matter of substantive federal common law.

--RR

Alternative MDL-management Method

Click the article's title to download The Quasi-Class Action Method of Managing Multi-District Litigations:  Problems and a Proposal, authored by Profs. Charles Silver and Geoffrey Miller.  The abstract follows:

This article uses three recent multi-district litigations (MDLs) that produced massive settlements -- Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million) -- to study the emerging quasi-class action approach to MDL management. The approach has four components: (1) judicial selection of lead attorneys; (2) judicial control of lead attorneys' compensation; (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees; and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These widely used procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily on the plaintiffs' side and making them responsible for plaintiffs' success. They allocate monies in ways that likely over-compensate some attorneys and under-pay others, with predictable impacts on service levels. They also lack needed grounding in substantive law because the common fund doctrine, which supports fee awards in class actions, does not apply in MDLs. Academics have not previously noted these shortcomings; this is the first scholarly assessment of the quasi-class action approach.

This article also proposes an alternative method of MDL management. It recommends the creation a plaintiffs' management committee (PMC) composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work (CBW) for all claimants and monitor the lawyers' performance. The new approach would thus use micro-incentives to organize the production of CBW in MDLs rather than judicial control and oversight. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. If enacted as a statute, the proposal would restore judges' independence, preserve lawyers' loyalties, provide the requisite legal foundation for fee awards, and encourage the fairer, more efficient, and more appropriate representation of claimants in MDLs.

--RR

Erie Meets the First Amendment

Howard Wasserman just posted an interesting question over at PrawfsBlawg: 

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard?

The rest of the post describes the context for his question.  To read it, click here. --RR

Supreme Court decides Vaden

SCOTUS Blog reports that the Supreme Court "ruled that a firm seeking to compel arbitration of a dispute may take the case to a federal District Court only if the underlying controversy could have been litigated in federal court.  A federal court has no jurisdiction, Justice Ginsburg wrote for the Court, to order arbitration of “a slice of a controversy when the controversy as a whole” would be beyond its reach."  I'll post a link to the opinion soon:  Click here to download the opinion.

The case is Vaden v. Discover Bank.  If the oral argument is any indication, the opinion will be interesting indeed.  ---RR

Courtoons

Absolutely hilarious.  --RR

Lack of relatedness

Ben Spencer reports here on an 11th Circuit case dismissing for want of territorial jurisdiction.  A brief preview:

Thus stated, it is apparent that the nexus between Oldfield's injury and the internet contact is too remote to satisfy the relatedness requirement. A finding that such a tenuous relationship between Pueblo's relevant contacts and the negligence of the captain who was not employed or controlled by Pueblo somehow satisfied the relatedness requirement would not only contravene the fairness principles that permeate the jurisdictional due process analysis, but would also interpret the requirement so broadly as to render it virtually meaningless.

--RR

Call for Proposals

The AALS Section on Academic Support will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods.  Many of these methods  have their roots in traditional academic support tenets of varying lesson plans to reach different learning styles, providing feedback throughout the semester, assessing students in creative ways, engaging students both in and out of the classroom, and encouraging students to take responsibility for their own learning.   The committee requests proposals that demonstrate modern classroom and teaching techniques including but not limited to: active learning activities, teaching assessment procedures, exam drafting, skills development in doctrinal courses, and innovative lesson plans.  Show us what's new and different in legal education in the 21st century!

The Program Committee will give preference to presentations designed to engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed.  In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters.  If you do not have a proposal to submit, but are interested in participating in a presentation, please contact Emily Randon (see below), as assistance with the overall workshop is always welcome.

Based on participant numbers for the last several years, we anticipate over 100 people attending the program.  To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.

Proposals must include the following information:
1.  A title for your presentation
2.  A brief description of the objectives or outcomes of your presentation.
3.  A brief description of how your presentation will support your stated objectives or outcomes.
4.  The amount of time allocated for your presentation and for the interactive exercise.  No single presenter should exceed 45 minutes in total time allowed.  Presentations as short as 15 minutes will be acceptable.
5.  A detailed description of how the presentation will be interactive.
6.  Whether you plan to distribute handouts, use PowerPoint, or employ other technology.
7.  A list of the conferences at which you have presented within the last three years, such as AALS, national or regional ASP or writing conferences, or other academic conferences.  (The committee is interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.) 8.  Your school affiliation, title, courses taught, and contact information (include email address and telephone number).
9.  Any articles or books that you have published describing the lesson you will be demonstrating.

Send proposals by Monday, March 9, 2009 to Prof. Emily Randon, University of California, Davis School of Law, at the email address of elrandon@ucdavis.edu.  If you have questions, feel free to contact Emily Randon directly at 530-752-3434.

If you know of colleagues who are true innovators in techniques that achieve the objectives of the academic support community, please encourage them to submit proposals!

We look forward to seeing you in New Orleans!

The ASP Section Program Committee:
Emily Randon, Chair
Robin Boyle Laisure
Hillary Burgess
Barbara McFarland
Kathy Garcia
ASP Section Chair:  Pavel Wonsowicz

Federal Courts, Not Federal Tribunals

Prof. Lou Mulligan recently posted Federal Courts, Not Federal Tribunals.  Also check out his previous article, which we featured here.  Lou is a very bright scholar, and his writing is always accessible.    --RR

"Against Settlement" Symposium

Prof. Howard Erichson and the Fordham Law Review  have put together quite a symposium to discuss Owen Fiss's provocative arguments about ADR and settlement of 25 years ago.  The speakers include Owen Fiss, Sam Issacharoff, Pam Karlan, Susan Sturm, Jack Weinstein, and Kenneth Feinberg.  Click here for more information. --RR

Entry-Level Hiring Report

Larry Solum is compiling this year's Entry Level Hiring Report.  Click here to submit your school's information via Survey Monkey.  --RR

Horizontal Federalism

Minnesota Prof. Allan Erbsen recently posted an updated version of Horizontal Federalism on SSRN.  It's definitely worth a read.  The abstract follows:

This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their shared authority. Constitutional law currently addresses these limits in a piecemeal fashion through doctrines regulating such diverse subjects as personal jurisdiction, restraints on interstate commerce, choice of law, federal subject-matter jurisdiction, interstate compacts, federal common law, tax apportionment, interjurisdictional preclusion, and discrimination based on state citizenship. This Article moves beyond the piecemeal approach by identifying facets of horizontal federalism that transcend doctrinal categories. Considering these common features without the distraction of historically contingent doctrinal labels can help reconfigure jurisprudence that is often unprincipled, unsatisfying, and unstable.

The Article proceeds in four steps. First, it defines horizontal federalism, explains how horizontal and vertical federalism overlap, and explores structural features of the Constitution that complicate efforts to define limits on state authority. Second, it groups seemingly unrelated examples of state action into eight categories. This typology highlights thematic connections between forms of state action that prevailing doctrine often treats separately. Third, the Article analyzes the Constitution holistically to identify the clauses that regulate horizontal federalism and consider how these fragments fit together to resolve, deter, or mitigate problems arising from the categories of state action noted above. This approach identifies five methods that the Constitution uses to regulate interstate activity.

Finally, the Article develops a model for analyzing jurisprudence implementing the Constitution's methods for coping with horizontal federalism. This model reveals that horizontal federalism doctrines rely on a varying combination of four concepts: capacity (the scope of a state's sovereign authority), constraint (rights or immunities that limit state power), centralization (express or implied federal preemption or authorization of state action), and comity (the need for states to respect each other even when capacity exists free from constraint or central control). Identifying these concepts exposes at least three sources of incoherence or instability within horizontal federalism jurisprudence. First, individual judicial decisions are often imprecise about which concept controls, leading to a lack of fit between reasoning and outcomes. Second, the role of the four concepts can vacillate within a line of precedent over time, leading to confusion about a doctrine's rationale and proper application. Finally, distinct lines of precedent can deploy the four concepts differently despite the lack of meaningful distinctions between the doctrines' underlying purposes or functions. Parsing and critiquing capacity, constraint, centralization, and comity arguments can therefore affect the implementation, justification, and coordination of horizontal federalism doctrines. The model thus provides a foundation for future scholarship reevaluating vast swaths of constantly evolving law.

--RR

Prof. Campbell posts article on service of process

Faulkner Prof. Charles Campbell recently posted No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.  The abstract follows:

Mexico acceded to the Hague Service Convention in 1999, with entry into force in 2000. In its instrument of accession, Mexico designated the Directorate-General of Legal Affairs of its Ministry of Foreign Affairs as its Central Authority to receive and forward requests for service of judicial and extrajudicial documents from other contracting States, and objected to alternative methods of serving documents under Articles 8 and 10 of the Convention. Unfortunately, a mistake occurred in the English courtesy translation of Mexico's Article 10 declaration, making it appear that Mexico's opposition applies only to the alternative methods of service of process under Article 10 when attempted through diplomatic or consular agents. The original Spanish declaration relating to Article 10 contains no such limitation. It instead expresses across-the-board opposition to all of the alternative methods of service provided in Article 10. When a contracting State objects to all of the alternative methods of service in Articles 8 and 10 of the Convention, service through the Central Authority is in effect the exclusive means. Accordingly, United States courts are bound to refrain from alternative methods of service of process on parties in Mexico and must use its Central Authority.

The mistake in the English translation of Mexico's opposition to alternative methods of service under Article 10 has led state and federal courts in the United States to conclude that al-ternative forms of service are appropriate in Mexico under the Hague Service Convention. The U.S. Department of State circular on service of process likewise suggests that service of process by international registered mail on parties in Mexico is appropriate, at least if a party does not anticipate enforcing the judgment in Mexico. This article briefly points out the error in the Eng-lish translation of Mexico's Article 10 declaration, explains how the mistake is misleading courts in the United States, and concludes that service of process in U.S. litigation on parties in Mexico pursuant to the Hague Service Convention should always proceed through Mexico's Central Au-thority in accordance with Articles 3 through 7 of the Convention.

E-Pitfalls: Ethics and E-Discovery

Prof. Debra Lyn Bassett recently posted E-Pitfalls:  Ethics and E-Discovery.  Click the title to download the article.  The abstract follows:

Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated. In particular, this Article argues that despite the seeming distinctiveness of issues concerning electronically stored information, well-established ethical rules apply to these issues in very familiar patterns and approaches. After examining the interplay between legal ethics and the practice of law generally, the Article analyzes the recent Qualcomm decision and offers some insights into both the reasons behind the Qualcomm court's insistence on employing ethical precepts in the e-discovery context, and why the use of ethical principles in discovery is likely to continue. Specifically, two provisions within Federal Rule 26(g) invite the continued use of ethical principles: (1) the limited nature of Rule 26(g)'s authorization of sanctions, and (2) the "reasonable inquiry" required by Rule 26(g) before signing a disclosure, discovery request, or response.

--RR

Supreme Court Reform

Today, at law.com, Marcia Coyle reports:  Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court. The article describes four proposals, ranging from regular biennial appointment of new justices to identifying justices who are no longer able to perform competently.  I suspect there is a special kind of inertia regarding the way the Supreme Court works.  While we all grew up legally watching the Court change/modify/grow the law, we did so while the Court operated against a set of background procedures regarding operation and composition:  Judicial Review must be; subject-matter jurisdiction must be challengable at any time; life tenure means life tenure; and so on.  --RR

11th Circuit Certifies Florida Long-Arm Question

In Internet Solutions Corporation v. Marshall, Defendant lived in Washington, where she owned and operated a consumer-watchdogish website.  She posted something about plaintiff, ISC.  ISC sued Defendant in federal court -- in Florida, where ISC had its principal place of business.   Florida's long-arm statute authorizes jurisdiction over a defendant who commits a tortious act "within Florida."  The 11th Circuit first noted that:

The Florida Supreme Court has yet to address whether the posting of information on an out-of-state website about a company with its principal place of business in Florida would meet the statutory requirements for long-arm jurisdiction.

It then certified the question:

Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a  nonresident with no other connections to Florida constitute commission of a tortious act within Florida for purposes of Fla. Stat. s48.193(1)(b)?

--RR

Distinguishing Certification from Abstention

Prof. Deborah J. Challener recently posted Distinguishing Certification from Abstention in Diversity Cases: Postponement versus Abdication of the Duty to Exercise Jurisdiction.  Click the title to download the article, which will appear in Volume 38 of the Rutgers Law Journal.   --RR