Washburn Law Journal Seeking Contributions

The Washburn Law Journal is constructing its Spring 2012 issue around the topic of resource allocation and the law. Specifically, the issue will focus on how attempts to conserve resources during the economic recession may impact the justice system. Several authors are already committed to the issue and will discuss topics including prosecutorial discretion as a vehicle to conserve state resources, questions surrounding the use of prison labor, and how new procedural rules may inhibit the ability of plaintiffs to access the court system.  The Journal is seeking proposals from additional scholars that would like to contribute to the issue. Please contact the Articles Editor, Andrew Newcomer at andrew.newcomer@washburn.edu with any proposals or questions.

Glover Posts Article on Federal Civil Settlements on SSRN

Maria Glover, a Climenko Fellow and Lecturer on Law at Harvard, has recently posted an article entitled The Federal Rules of Civil Settlement on SSRN.  Here is the abstract:

The Federal Rules of Civil Procedure were based upon a straightforward model of adjudication: Resolve the merits of cases at trial, and use pre-trial procedures to facilitate accurate trial outcomes. However appealing in principle, this model has less relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article argues that we need a new vision of civil procedure for a world of settlement.

This Article begins by providing a systemic analysis of why the Federal Rules are inadequate to prevent settlement outcomes from being distorted relative to the underlying merits of a given dispute, as defined by reference to substantive law, and further explains how the Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs “in the shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. Less attention has been given, however, to the ways in which the influence of these factors on settlement outcomes is a product of basic structural features of the Federal Rules themselves. Because of the way in which the Rules were set up to operate, the “shadow of the law” that is cast on settlements is fading. Further, litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself.

This Article then traces these problems to three foundational assumptions underlying the Federal Rules, all of which have been undermined by a world of settlement. In rethinking these assumptions, it considers procedural reform proposals that have been offered as discrete solutions to some of these issues, and provides a new conceptual account of these proposals as challenges to these foundational assumptions. This Article also posits that these reform efforts ought to be refined and extended with a specific view toward more systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. This Article then sets forth for further consideration examples of proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which pre-trial procedural rules do not merely facilitate trial but rather are designed to provide litigants guidance about the merits of claims for purposes of more meaningfully aligning settlement outcomes with the dictates of the substantive law. In so doing, this Article begins to lay the conceptual groundwork for the design of a new Federal Rules of Civil Settlement.

You can download this piece by visiting http://ssrn.com/abstract=1958615.

New Book on Civil Justice in International Perspective

New Book: Failures of American Civil Justice in International Perspective


About the book:

Few lawyers today would say that American civil justice works well. Some say that it is oppressive and unjust. Many have given up getting it to work. America's reformers have run out of ideas. They have not proven models for fixing what they know is broken.

This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the American system and compares them with German and Korean successes. The book shows foreign systems as a source of ideas that are proven to work. Civil justice can be just and civil.

The book is available at www.cambridge.org/9781107009936   with a 20% discount until December 31 with the discount code at checkout: S11MAXEINER.

Fifth Circuit Weighs in on Split Re Stay Pending Arbitrability Appeal

Per Weingarten Realty Investors v. Miller, --- F.3d ----, 2011 WL 5142183 (5th Cir. Nov. 1, 2011):

   Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth Circuits have held that a stay is not automatic. In Britton, the court pointed out that normally, appellate review of a collateral order does not deprive the district court of jurisdiction to proceed to the merits. The court cited the determination in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 21, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), that because arbitrability is an issue easily separable from the merits of the underlying dispute, the district court could address the merits while the appellate court reviewed arbitrability. Additionally, the Britton court noted that an automatic stay would allow litigants to delay resolution of the matter by filing frivolous appeals. In the absence of an automatic stay, the district court nonetheless retains the power to determine, on a case-by-case basis, whether proceedings should be stayed until the appeal regarding arbitrability has been resolved.

The Seventh Circuit, later joined by the Third, Fourth, Tenth, and Eleventh, has held that a notice of appeal automatically stays proceedings in the district court. The Seventh Circuit reasoned in Bradford–Scott Data Corp. v. Physician Computer Network, 128 F.3d 504 (7th Cir.1997), that the underlying claims before the district court are not collateral to the issue presented by an appeal, because the appeal is to determine whether the matter should be litigated in the district court at all. The court was worried about inconsistent handling of the case by the two courts and was concerned that allowing simultaneous proceedings would defeat the speed and cost benefits parties seek from arbitration. Id. at 505. These courts analogize arbitrability appeals to appeals regarding double jeopardy, sovereign immunity, and qualified immunity, see id. at 506, reasoning that because a district court cannot proceed past these issues when there are interlocutory appeals, it similarly cannot proceed when arbitrability is appealed.

The legal debate turns on Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Although appeals transfer jurisdiction from the district court to the appellate court concerning “those aspects of the case involved in the appeal,” id. at 58, the district court is nonetheless free to adjudicate matters that are not involved in that appeal, see Alice L. v. Dusek, 492 F.3d 562 (5th Cir.2007). At issue here is whether the merits of an arbitration claim are an aspect of a denial of an order to compel arbitration.

The Ninth Circuit interpreted Griggs narrowly, holding that because answering the question of arbitrability does not determine the merits of the case, the merits are not an aspect of the case that is involved in the appeal on arbitrability. To the contrary, the Seventh Circuit interpreted Griggs broadly, holding that because an appeal on arbitrability concerns whether the case will be heard in the district court at all, the merits in district court are an aspect of the case that is involved in the appeal.

The narrower interpretation better comports with our precedents and the nature of arbitration. “How broadly a court defines the aspects of the case on appeal depends on the nature of the appeal.” Alice L. v. Dusek, 492 F.3d 563, 565 (5th Cir.2007) (per curiam). The facts of Griggs suggest a narrow interpretation is normally appropriate.