Category: Civil Procedure

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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book

My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).

Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.

Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.

Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.

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Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)

I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.

CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:

Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.

PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY

Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.

The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’

‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months

‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months

‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years Read More

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What are we missing when we think about case processing in litigation and mediation?

Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.

The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.

Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).

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Eight Months of Iqbal: Part 3

In this last of three posts on Twombly and Iqbal, I want to talk about the bills now pending in Congress (one in the House and one in the Senate) to overturn these two decisions. 

The Notice Pleading Restoration Act (S. 1504) would provide:

Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

The Open Access to Courts Act (H.R. 4115) would provide:

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

Legislation along these lines would certainly be valuable to the extent that it would foreclose some common misreadings of Twombly and Iqbal that would indeed result in a much stricter pleading standard. As I explain in my earlier post, however, Twombly and Iqbal should not be read as allowing courts to disregard allegations for lack of “plausibility.” What was fatal in Twombly and Iqbal was the fact that allegations necessary to establish a claim for relief were, in the Court’s eyes, presented as “mere legal conclusions.” The plausibility inquiry (which, as H.R. 4115 suggests, assesses whether the nonconclusory allegations are sufficient to raise an inference of liability) is actually a method to save complaints that otherwise rest on mere conclusory allegations.

Nor should Twombly and Iqbal be read to overturn longstanding notice-pleading precedents like Conley. Read correctly, the framework established by Twombly and Iqbal is not inconsistent with (to quote S. 1504) “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.” Admittedly, Twombly set aside Conley‘s “beyond doubt . . . no set of facts” language (which H.R. 4115 would explicitly reinstate). But what Twombly “retire[d]” was merely what it called a “focused and literal reading” of this phrase that would have precluded dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” The Supreme Court had never read Conley this way. If it had, a complaint that alleged nothing more than “The planet Earth is round” would survive, because any number of actionable facts might be consistent with the Earth being round.

Properly understood, Conley did not preclude dismissal as long as any set of facts would entitle the plaintiff to relief. It precluded dismissal unless “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This merely confirms that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. But the Twombly majority itself endorsed this idea; it wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” The dispositive question is — and always has been — what makes something a “well-pleaded complaint”? Conley and Twombly provide the same answer: “all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Eight Months of Iqbal: Part 2

In my earlier post, I argued that the Supreme Court’s approach to pleading in Twombly and Iqbal is not necessarily inconsistent with the pre-Twombly notice-pleading framework. On a correct reading, the admittedly-problematic plausibility inquiry is not a basis for disregarding allegations in a complaint. When a complaint provides non-conclusory allegations for each element of a claim for relief, those allegations must be accepted as true, without regard to their “plausibility.”

There is no doubt, however, that the lower federal courts are paying a lot of attention to Twombly and Iqbal. My article The Pleading Problem ranks Supreme Court decisions in terms of the frequency with which they have been cited by federal courts. The figures in my current draft were as of June 30, 2009 (they will be updated in the final version). But even then, Twombly was #17 all-time with over 14,000 citations by federal courts. As of today, its count is nearly 22,000, which will place it very comfortably in the top-10. Iqbal is just getting started, but over the last eight months it has been cited at a remarkable rate of over 600 decisions per month.

That said, an opinion’s citation frequency alone doesn’t tell you what courts are actually doing with that opinion. That’s the far more interesting question. There are certainly federal courts whose approaches to pleading after Iqbal reflect a much stricter standard. Jon Siegel identified a slip-and-fall case in an earlier Concurring Opinions post, Alexi Lahav has noted some others on the Mass Tort Litigation Blog, and I mention a few in my forthcoming article. In this post, I want to flag some cases where the lower federal courts are at least on the right track.

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Eight Months of Iqbal

It’s hard to imagine a topic in civil procedure that has garnered more attention recently than pleading standards. The Supreme Court’s decision last Term in Ashcroft v. Iqbal (which embraced its controversial 2007 decision in Bell Atlantic v. Twombly) prompted an onslaught of commentary and critiques (including a couple of excellent Concurring Opinions posts by Jon Siegel here and here). Particularly troubling about these decisions is the idea that judges should subjectively determine — without hearing any evidence or testimony — whether the plaintiff’s claim is a “plausible” one. The Iqbal decision hit its 8-month anniversary this week, so I figured I’d take this opportunity to share a few thoughts on federal pleading standards in the post-Iqbal era. I’m hoping to follow up with posts about how the lower courts have been handling Twombly and Iqbal, and on the proposed legislation now pending in the House and Senate to overturn these decisions.

First off, I agree with many of Twombly‘s and Iqbal‘s critics. At best, these rulings appear to be result-oriented decisions designed to terminate at the earliest possible stage lawsuits that struck the majorities as undesirable. And inviting the “plausibility” concept into pleading doctrine was extremely problematic. It would be doubly unfortunate, however, if courts compound these troubling decisions by misreading them to drastically change federal pleading standards going forward. As I argue in my article The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), a careful reading of these cases reveals an approach that is not necessarily inconsistent with the notice-pleading framework that most attorneys, judges, and professors alive today learned when they were in law school.

How is this possible? For starters, the majorities in Twombly and Iqbal left the core principles of the notice-pleading era in place. Twombly, in fact, explicitly endorsed Conley v. Gibson‘s command that the complaint must merely “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Although Twombly abrogated one phrase from Conley (that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) this phrase was never taken as literally as the straw man that Twombly struck down. The true meaning of this phrase was simply that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. As to this point, Twombly is completely on board; Justice Souter wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”

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Justice Sotomayor, Civil Procedure, and the “Tradition” of Unanimous Debut Opinions

Yesterday brought the Supreme Court’s first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

“The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.”

The issue of when interlocutory district court orders can be immediately appealed is one that’s particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas’s concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court’s result, Justice Thomas writes that Justice Sotomayor’s opinion “needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit.” He concludes:

“I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”

Some have argued that Justice Thomas’s opinion contravenes the Supreme Court’s “tradition” that a new Justice’s first opinion be a unanimous one. (See Eric Muller’s post at The Faculty Lounge: Clarence Thomas “Welcomes” Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as “testy” and “a swipe at his new colleague.” On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor’s opinion (“I concur in the judgment and in Part II-C of the Court’s opinion”). What do folks think?

At the end of the day, maybe it doesn’t really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court’s most junior Justice. Could there be a “Curse of the Nonunanimous Debut Opinion”?

(Cross-posted at the Civil Procedure & Federal Courts Blog)

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Commentary on The Federal Courts Jurisdiction and Venue Clarification Act of 2009 (H.R. 4113, now in Congress)

Now pending before Congress is H.R. 4113, a.k.a. The Federal Courts Jurisdiction and Venue Clarification Act. The Act could certainly use a workup by the House Acronym Committee (maybe I have soccer on the brain after Friday’s World Cup draw, but “FC JAVCA” sounds like it could be a mid-tier European football club). All kidding aside, the Act makes a number of commendable improvements, many of which were recommended by a recent project of the American Law Institute (ALI).

For more information on the bill, see the Library of Congress’s website here. The full text of the bill is available here(.xml format) or here (.pdf format). Earlier coverage of the bill is here. Among other things, the Act would amend Title 28 with respect to removal and remand procedure, venue, and actions involving permanent resident aliens and foreign corporations and insurers. This post summarizes (and flags some potential concerns with) the Act’s provisions dealing with the amount in controversy required for diversity jurisdiction. Under current law, the amount in controversy must exceed $75,000.

First, the Act would index the amount-in-controversy threshold to automatically adjust for inflation. [Act, § 103.] Beginning in 2011, the $75,000 threshold would be adjusted every five years according to the percentage change in the Consumer Price Index. If you’re worried about the amount in controversy becoming $83,516.44, have no fear; the amount will be rounded to the nearest multiple of $5,000.

Second, the Act has a number of provisions dealing with a plaintiff’s ability to preclude diversity jurisdiction by declaring that it will neither seek nor accept a judgment in excess of the amount in controversy threshold. [Act, § 104.] Making such a declaration in state court will prevent removal to federal court “as long as the plaintiff abides by the declaration and the declaration is binding under the laws and practice of the State.” If the plaintiff fails to abide by this declaration, the case can be removed within 30 days after the defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained” that the plaintiff seeks or is willing to accept a judgment in excess of the threshold for diversity jurisdiction. The Act also provides that a removed case may be remanded to state court if the plaintiff makes a similar declaration in federal court within 30 days of removal. In that situation, “the district court shall remand the action to State court unless equitable circumstances warrant retaining the case.”

One possible concern with these provisions is that they do not allow “re-removal” if the plaintiff who makes the declaration in federal court then reneges on the declaration after getting back to state court. The new language that would allow removal after a plaintiff reneges applies only “[i]f the plaintiff has filed such a declaration in state court but thereafter fails to abide by that declaration.” (emphasis added)

Third, the Act codifies the general rule that “the sum demanded in good faith in the initial pleading [the state court complaint] shall be deemed to be the amount in controversy.” [Act, § 105(b), to be codified at 28 U.S.C. § 1446(b)(4).] It then provides that the notice of removal may assert the amount in controversy required for diversity jurisdiction where either (a) nonmonetary relief is sought, or (b) “State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.” The defendant must then establish to the federal court by the preponderance of the evidence that the amount-in-controversy threshold is met.

One concern with this provision is that it does not authorize the notice of removal to assert the amount in controversy if state practice does permit demand for a specific sum but the initial pleading just fails to make one. Arguably the notice of removal should be able to assert the amount in controversy in that situation as well. 

I’m hoping to blog on other provisions in the Act in the near future. In the meantime, feel free to use the comments to share your own thoughts.

(Cross-posted on the Civil Procedure & Federal Courts Blog)

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14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More

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Congress Fixes Mistake!

What should courts do when the “plain language” of a legal text would lead to troubling, unanticipated consequences? Should they wait for the text to be formally amended? Or should they literally take the law into their own hands and fix the problem themselves? I blogged earlier about the possibility that language in a 2005 amendment to the Texas Constitution could invalidate all Texas marriages (including my own!). I have an obvious personal stake in that particular issue, but I’m interested more generally in such problematic language, particularly in the context of civil procedure and federal jurisdiction. Today officially lays to rest a classic example of that — the 2005 Class Action Fairness Act’s 7-day “deadline” for appealing certain jurisdictional rulings.

The original language in 28 U.S.C. § 1453(c)(1) required that such appeals be brought “not less than 7 days” after the district court’s order. Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite — it imposed a 7-day waiting period and set no outer deadline. What’s the appropriate judicial response? Rewrite the statute by interpreting “less” to mean “more,” thereby imposing a 7-day deadline? Or adhere to the literal text, thereby imposing a 7-day waiting period with no outer deadline? For litigants, the only safe move was to appeal exactly 7 days after the district court’s order, which would make the appeal timely under either a not-more-than-7-days or a not-less-than-7-days standard.

I wrote about this problem in my article “Less” is “More”? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act’s Appellate Deadline Riddle, 92 Iowa L. Rev. 1183 (2007). Back then, every circuit to consider the question rewrote the statute and imposed the 7-day deadline, although six Ninth Circuit judges disagreed in a vigorous dissent from a denial of en banc review. My argument was that courts should adhere to the statute’s plain language (which would impose no outer deadline on CAFA appeals) and instead rely on Fed. R. App. P. 4’s default deadline of 30 days. The Seventh Circuit eventually adopted that approach, see Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), creating a circuit split that would force either Congress or the Supreme Court to resolve the issue.

Congress responded and, effective today, the problem is solved. Legislation enacted earlier this year provides: “effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days.'” Public Law 111-16, § 6(2). This is a commendable solution, but my sense is that such congressional initiative is the exception rather than the rule. A counterexample that civil procedure folks know all too well is the saga of the supplemental jurisdiction statute, for which uncertainty lingered from its 1990 enactment until — and perhaps beyond — the Supreme Court’s 2005 decision in Exxon Mobil v. Allapattah, now a staple in civil procedure casebooks. (If readers are interested, see my article on that decision, Sausage-Making, Pigs’ Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act, 81 Washington L. Rev. 279 (2006).)