SCOTUS Decides Standard Fire Insurance Co. v. Knowles

From BNA's Supreme Court Today:

Standard Fire Insurance Co. v. Knowles, No. 11-1450: A would-be class plaintiff's stipulation that he and the class he seeks to represent will not seek damages greater than $5 million total, which is the jurisdictional threshold for federal district courts to have original jurisdiction over class actions under the Class Action Fairness Act of 2005, does not remove the case from CAFA's scope. The plaintiff made the stipulation in an affidavit filed with the complaint, before class certification. The stipulation does not remove the case from CAFA coverage because it is not binding on class members the plaintiff seeks to represent.

Kaplow on Multistage Litigation

Professor Louis Kaplow (Harvard) has posted an article entitled Multistage Litigation on SSRN.  Here is the abstract:

Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Lqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.

The article may be downloaded by visiting http://ssrn.com/abstract=2154683.

Issacharoff and Miller Post Motion to Dismiss Article on SSRN

Professors Samuel Issacharoff and Geoffrey Miller (both of NYU) have just posted an article entitled An Information-Forcing Approach to the Motion to Dismiss on SSRN.  Here is the abstract:

This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.

You may download the full article by clicking here.

Prof. Coleman Posts Right-to-Counsel Article on SSRN

Professor Brooke Coleman (Seattle) has recently posted her forthcoming piece on the right to counsel, Prison is Prison, which will be published in the Notre Dame Law Review.  Here is the abstract:

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court’s analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court’s narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court’s different goals in the criminal and civil context better explain the Court’s approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court’s “doctrinal-oriented” approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner is prison, not monetary damages or injunctive relief. Instead of taking this doctrinal-oriented approach, this Article argues that the Court’s analysis should be “consequence-driven.” Where prison is the consequence, the Court’s underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil. Using the Court’s decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.

The article is available for download at http://ssrn.com/abstract=2143333.

Top 10 Best Practices in Predictive Coding

Equivio, an e-discovery vendor, has produced a white paper discussing the best practices in predictive coding.  Registration is required to view the paper. Here is a description:

Predictive coding is new to e-discovery.  Predictive coding, sometimes termed computer-assisted review or technology-assisted review, is software that can be trained by a human being to distinguish between relevant and non-relevant documents.  Over the past three years, the predictive coding market has transitioned from a preliminary embryonic state, a test bed for experimentation by technology geeks and early adopters, to the point today where the technology has been approved for use by courts around the US and internationally, and has become the single most talked about topic in e-discovery worldwide.

As is well known, the classification technologies that underlie predictive coding applications in the e-discovery arena are widely used in a very broad range of industrial and scientific settings, and have done so since beginning in the 1960’s.  Some of the best practices that have developed in these settings are analogous to the e-discovery setting.  However, e-discovery is a unique arena, especially in terms of the stringent defensibility requirements that apply.  As such, it has been necessary to develop and define best practices that will address the unique needs of predictive coding applications in the e-discovery environment.  The objective of this white paper is to outline the best practices that are emerging in the application of predictive coding technology to the e-discovery arena.

Visit http://www.equivio.com/resource_download.php?ID=75&utm_source=Equivio+update%3A+Epiq+adopts+Zoom%2C+Clustering+in+Zoom%2C+Case+Order+on+Relevance...&utm_campaign=Equivio+update+August+22&utm_medium=email. 

Prof. Hoffman Posts Article on Rulemaking in the Age of Twombly and Iqbal

Professor Lonny Hoffman (Houston) has just posted an Article entitled Rulemaking in the Age of Twombly and Iqbal.  Here is the abstract:

In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.

The piece can be downloaded by visiting http://ssrn.com/abstract=2123325.

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP

CALL FOR PAPERS

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop.  The format maximizes collegial interaction and feedback: in lieu of author “presentations,” all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows. 

Submitted papers should address an aspect of civil justice, broadly defined.  Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws.  In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches. 

Submissions must be received at Branstetter.Program@vanderbilt.edu no later thanJanuary 1, 2013.   Selected participants will have reasonable travel and accommodations covered.  Other requirements and more details about the workshop can be found at www.law.vanderbilt.edu/newvoices.