Law Commons^™

Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right holder and the right holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the Supreme Court’s attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory …

Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Faculty Scholarship

No abstract provided.

Democratic Enforcement? Accountability And Independence For The Litigation State, Margaret H. Lemos

Faculty Scholarship

A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to …

Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Three Models Of Adjudicative Representation, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthomy J. Scricia

Faculty Scholarship

No abstract provided.

Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs

Faculty Scholarship

The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.

If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant¹s only remedy is a transfer motion under § 1404.

Both sides are wrong. Forum-selection …

The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Faculty Scholarship

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems—the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained reflection has been carried out as to the import and impact of this longstanding law school …

“The [Judicial] Beatings Will Continue Until Morale Improves”: The Prisoner's Dilemma Of Cooperative Discovery And Proposals For Improved Morale, Paul W. Grimm, Heather Leigh Williams

Faculty Scholarship

No abstract provided.

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.

Faculty Scholarship

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of …

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By conflating …

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Iqbal And Empathy, Darrell A. H. Miller

Faculty Scholarship

This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Faculty Scholarship

This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.