Category: Supreme Court

0

The Yale Law Journal Online: Richard Lazarus and Sanford Levinson on the Supreme Court’s Certiorari Process

yljonline

Concluding its series on proposed reforms to the certiorari process, The Yale Law Journal Online is pleased to present pieces by Richard Lazarus of the Georgetown Law Center and Sanford Levinson of the University of Texas Law School.  Lazarus and Levinson approach the issue of the Supreme Court’s docket composition through a variety of perspectives, and shed light on the ongoing debate over whether the declining number of cases before the Court presents a problem for the American judicial system.

The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic will be a hosting a second conference on the subject on March 23, 2010 at Yale Law School in New Haven, Connecticut.  Further details will be provided shortly.

Preferred Citations:

Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.

Sanford Levinson, Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?, 119 Yale L.J. Online 99 (2010), available at http://yalelawjournal.org/2010/02/01/levinson.html.

2

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.”

Read More

2

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.

Read More

6

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.”

Read More

0

The Yale Law Journal Online: Judge J. Harvie Wilkinson’s “If It Ain’t Broke . . .”

yljonline

The Yale Law Journal Online is pleased to present its last publication of 2009.  The Hon. J. Harvie Wilkinson III addresses the recent calls to reform the Supreme Court’s certiorari process in this Essay, which cautions against reforms that may cause significant collateral damage to the American judicial system.  Judge Wilkinson addresses the recent contraction of the Supreme Court’s docket, challenging the notion that a smaller docket is cause for alarm.  He also challenges a number of the proposals on the table, invoking a historical perspective to argue against tampering with the fundamental structure and role of the Court.  These arguments continue Judge Wilkinson’s previous remarks on the subject at the Yale Law School-sponsored conference, “Important Questions of Federal Law.”

Preferred Citation: J. Harvie Wilkinson III, If It Ain’t Broke . . ., 119 YALE L.J. ONLINE 67 (2009), available at http://yalelawjournal.org/2009/12/16/wilkinson.html.

6

The Importance of Other Statutes in Statutory Interpretation

In one of the few decisions it has handed down thus far this term, Union Pacific Railroad Co. v. Locomotive Engineers and Trainmen, the Supreme Court relies heavily on a statutory interpretation technique that tends to confound students, but that forms a staple in its interpretive methodology:  References to/extrapolation from other statutes and prior Supreme Court cases interpreting them.  Union Pacific raises the question whether, under the Railway Labor Act (RLA), a party’s alleged failure to exhaust certain grievance procedures before proceeding to arbitration in front of a panel of National Railroad Adjustment Board (NRAB) members is a jurisdictional claim that may be raised sua sponte by the arbitration panel or an ordinary claim that must be raised by the parties in their papers.

The RLA requires employees and railroads to exhaust the grievance procedures specified in their collective bargaining agreement before resorting to arbitration. As the final pre-arbitration grievance procedure, the Act directs parties to attempt settlement “in conference” between designated representatives of the railroad and the employee. In Union Pacific, the parties engaged in at least two pre-arbitration conferences; however, the employees neglected to include proof that conferencing had taken place in the materials ultimately submitted to the arbitrators. The railroad did not raise this lack of record evidence, but one of the industry representatives on the panel did — and despite the employees’  after-the-fact submission of evidence that the conferences did occur, the arbitration panel dismissed the employees’ arbitration petitions, concluding that it lacked authority to assume jurisdiction over the employees’ claims given the employees’ failure to submit proof-of-conferencing prior to the closing of the record. Read More

5

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)

2

Democratic Deficit or an Oligarchy?

“It has been said that democracy is the worst form of government

except all the others that have been tried.”

Winston Churchill

I suppose the retort is that, if we have a democracy, these other forms must be really, really terrible. The U.S. seems mired, incapable of even starting to come to grips with our problems. After a 50 year struggle to get a rational health care system, we are closer but still not there. And, we may yet not get there. Waiting in the wings are issues such as reforms in financial regulation, climate change, and important civil rights issues. At the glacial pace of health care reform, these issues may not be reached, much less decided, before the next election cycle starts in full swing.

Some will say that we are doing just fine because inaction is the point of our governmental system. As Thomas Paine put it, “That government is best which governs least.” Whether or not that might still be true in some philosophical sense, the reason for our governmental inaction is not policy but is the result of a tremendous and growing democratic deficit in the way our government is structured and operates. And, of course, our government is not really that small, it is just ineffective.

A number people, particularly Sandy Levinson, have called out our democratic failings. Commonly reported causes of that deficit include federalism, a national government of limited powers, a President not elected by the people, separation of powers between the Congress and the President that diffuses responsibility, the disproportionate power of seniority in both Houses of Congress, each State getting two seats in the Senate no matter how miniscule or large its population and the filibuster rule of the Senate requiring supermajorities to get anything done.

The point I want to add to the discussion is the role of our system of political parties, the lack of much party discipline, and the role of campaign contributions.  We tend to talk about the Republican Party and the Democratic Party as if they were monolithic institutions that play significant roles in governance. That assumes some discipline within each party that is lacking. Each elected national official – President, Senators and Representatives – has his or her own, individualized political party as do their opponents trying to replace them. Yes, individuals who call themselves Democrats or Republicans sometimes work together under the umbrella of one party name or the other. Yes, the so-called national parties have some money to contribute to the campaign war chests of some candidates. Presidential elections come as close as we get to national parties because in each election there is a national Democratic Presidential Election Party and a Republican one as well.  But, these parties are really creatures of the candidates, not the other way around. Read More

0

The Yale Law Journal Online: Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process

yljonline

On September 19, 2009, Frederick Schauer discussed the state of the Supreme Court’s certiorari process at a conference sponsored by The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic.  Professor Schauer’s Essay on the topic, evaluating the dwindling caseload of the Court, the potential for an informational disadvantage on the part of the Justices themselves, and means by which a solution may be found, is now available on YLJ Online.

7

Comparative Constitutional Law, “Exceptionalism,” and “Originalism”

Last summer I was fortunate to share with Anne Massie the chance to teach Comparative Constitutional Law in the Loyola Chicago program at its Rome campus. Part of what made it enjoyable was the participation of Justice Ruth Ginsburg, along with her law professor husband, Marty Ginsburg. Justice Ginsburg gave three lectures – one on the inner workings of the Court, a second on her experiences litigating women’s rights cases in the 1970s, and the third on dissents. Her lectures revealed to enthralled students how passionate she is about what she is doing and how personal the relationship is among most of the Justices. Marty gave a wonderful lecture entitled “Imperfections.” It was about how things that happen that might seem not so desirable at the time can, nevertheless, lead to even better outcomes. He started with wondering what would have happened if big law firms would have hired women lawyers when Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school. That would have been good, but, had that been the case, both of them would now be rich, retired partners of major law firms. As things turned out, much better things happened because one path had been closed. His warmth and humor made the ambiance so relaxed that a student was so bold to ask how he and Justice Ginsburg had met, which they took turns answering.

What I want to comment on, however, is an insight that teaching comparative constitutional law allowed me to have and has been useful in my thinking about American constitutional law. It ties together our supposed “exceptionalism,” our doctrine of judicial review, and “originalism.”

I have always been proud that the US Constitution has been the inspiration for the development of written constitutions and of constitutional democracy, including individual constitutional rights, in many countries around the world. Judicial review, as originally articulated in Marbury v. Madison, has taken hold around the world in part because of our experience with it, particularly in its role in developing individual constitutional rights to expand the concept of what a democracy entails.

In recent times, however, our Constitution and the decisions of our Supreme Court are not cited that often by the courts making constitutional decisions in these other countries. Given the strident rejection of any citation to foreign legal developments by some in the US, including some member of our Supreme Court, one explanation is simply that turnabout is fair play: If the constitutional law of other countries is to be avoided at all costs in US courts because of our supposed “exceptionalism,” why should the courts in other countries cite US decisions?

There may be some of that.  However, I think more is at stake. The demand for isolationist “exceptionalism” may have something to do with our turn toward “originalist” interpretative approaches that has come to so dominate the discourse about constitutional law in this country.  “Originalism” creep is even expanding across the ideological spectrum of US constitutionalists. “Originalism” in any of its many versions is simply a non-starter for the courts of most other countries deciding constitutional questions.

The absence of “originalist” talk outside the US may be because most of the countries that now have constitutional judicial review have written it into their constitutions. Some have even created specialized constitutional courts with jurisdiction limited to decisions of constitutional questions. Our written constitution lacks such an explicit provision, though the structure of our constitution, with the horizontal separation of powers into three branches for the national government and a vertical power distribution between the national and supposedly sovereign states, seems to me to ache for judicial review to resolve the inevitable disputes that emerge in such a complicated power sharing system. In countries with express judicial review provisions, there is no question of the legitimacy of judicial review, though, of course, there are intense disputes over any particular exercise of that power.

So what is the link between “originalism” and an explicit judicial review power? Given security over the legitimacy of judicial review in those countries where it is explicitly established in the written constitution, it struck me that one way of looking at our obsession with “originialism” is that it reflects our collective insecurity about the legitimacy of judicial review. The strident cry of US “exceptionalism,” as virtuous and not to be contaminated by the introduction of foreign influences, is a way of shielding our constitutional discourse about judicial review from any recognition of its calm acceptance in so many other countries. What is exceptional is not judicial review but our insecurity over its legitimacy.

Some years back, Cass Sunstein proffered a straightforward political explanation for US judicial “exceptionalism:” The national political turn away from Warren Court activism with the coming of Nixonian Republicanism. One of its goals was to stop the momentum the Warren Court had been developing for the expansion of individual constitutional rights from negative ones to include positive rights. Shutting out the experiences of other countries that had been developing broader individual constitutional rights helped stem the tide toward recognition of positive rights here.

If that is true, that raises a question of which way causation runs: Has our collective insecurity about the validity of judicial review caused the cry for US “exceptionalism” and our soul-searching “originialism”? Or, has that insecurity been used instrumentally with politically motivated calls of “exceptionalism” and “originalism” made to retard the development of individual constitutional rights?

I wish I knew the answer to that. At any rate, teaching comparative constitutional law sure put the debates over how to interpret our Constitution into a new context. I hope I will be able to expand the discussion in my US constitutional law course this coming semester.