Less Is More ? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act\u27s Appellate Deadline Riddle

Federal appellate judges have recently grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 ( CAFA ) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal not less than 7 days after entry of the order. Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite - it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have disagreed sharply about whether courts may rewrite CAFA to require an appeal not more than seven days after entry of the order, or whether they must instead heed the statute\u27s text and impose no outer deadline for CAFA appeals. This puzzle upsets many of the assumptions and priorities associated with competing theories of statutory interpretation. Textualists, for example, might question whether CAFA warrants their usual skepticism toward unenacted legislative intent because there is overwhelming evidence (from CAFA\u27s structure, its legislative history, and common sense) that Congress meant to impose a seven-day deadline rather than a seven-day waiting period. Intentionalists - who usually tolerate deviations from a statute\u27s ordinary meaning in order to effectuate Congress\u27s purpose - might balk at taking the unparalleled step of reading a federal statute to mean the exact opposite of what it says. This Article proposes a solution to CAFA\u27s dilemma that has eluded courts and commentators to date. Even if one accepts CAFA\u27s plain language, the Federal Rules of Appellate Procedure require litigants to seek an appeal within thirty days. This solution provides a meaningful deadline for CAFA appeals without doing unprecedented violence to the statute\u27s text

The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy

Twenty years ago the Supreme Court decided a trilogy of cases on summary judgment These cases have had a profound impact on federal litigation Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history Celotex Corp v Catrett is widely recognized as the most significant decision of the trilogy both because it expanded the availability of summary judgment and because it remains the Courts most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment However Celotex failed to clarify many important aspects of summary judgment procedure leading to competing myths within both the academy and the judiciary The prevailing myths of Celotex are based principally on scholars and judges own views about how summary judgment procedure ought to operate in the federal system This article takes a more traditional approach that is long overdue in this area treating Celotex as an object of interpretation rather than an empty vessel for achieving policy preferences Using basic interpretive values consistency with prior decisions consistency with governing textual sources and internal coherence this article challenges the current myths and offers a fresh interpretation of Celotex that cogently resolves that cases many ambiguities The resulting approach to summary judgment would provide a sensible middle ground between the two dominant views of Celote

Lost in Transplantation: The Supreme Court\u27s Post-Prudence Jurisprudence

This essay is an invited response to Fred Smiths Vanderbilt Law Review article Undemocratic Restraint Smith critiques an important trend in the Supreme Courts decisions on standing the transformation of concepts that had been viewed as judiciallycreated prudential limits on a partys standing to sue into concepts grounded in positive law such as federal statutes or the Constitution This essay uses two Supreme Court decisions which coincidentally came down weeks after Smiths article was published to highlight some questions and concerns regarding two areas of standing doctrine that Smith examines One subject of doctrinal transplantation has been the zone of interests test In its 2013 decision in Lexmark International Inc v Static Control Components Inc the Supreme Court declared that the zoneofinterests inquiry is a feature of statutory interpretation rather than prudential standing In its 2017 decision in Bank of America Corp v Miami the Court revisited the zoneofinterests test By a 53 vote it held that the City of Miami ”which sued Bank of America for Fair Housing Act FHA violations that led to lost tax revenues and additional municipal expenses ”fell within the FHAs zone of interestsA potential future candidate for transplantation is the adverseness requirement Several Justices though never a majority have argued that adverseness is not merely a prudential consideration rather it is constitutionally mandated by Article III In its 2017 decision in Microsoft Corp v Baker the Supreme Court considered whether appellate courts could review a district court\u27s refusal to certify a class action where the lead plaintiffs ”following the denial of class certification ”stipulated to a voluntarily dismissal of their individual claims The majority in Microsoft found a lack of appellate jurisdiction on statutory grounds According to a threeJustice concurrence however there was an appealable final decision for statutory purposes but a lack of adverseness placed the appeal outside the bounds of Article II

The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy

Twenty years ago the Supreme Court decided a trilogy of cases on summary judgment These cases have had a profound impact on federal litigation Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history Celotex Corp v Catrett is widely recognized as the most significant decision of the trilogy both because it expanded the availability of summary judgment and because it remains the Courts most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment However Celotex failed to clarify many important aspects of summary judgment procedure leading to competing myths within both the academy and the judiciary The prevailing myths of Celotex are based principally on scholars and judges own views about how summary judgment procedure ought to operate in the federal system This article takes a more traditional approach that is long overdue in this area treating Celotex as an object of interpretation rather than an empty vessel for achieving policy preferences Using basic interpretive values consistency with prior decisions consistency with governing textual sources and internal coherence this article challenges the current myths and offers a fresh interpretation of Celotex that cogently resolves that cases many ambiguities The resulting approach to summary judgment would provide a sensible middle ground between the two dominant views of Celote

What Is the Erie Doctrine - (and what does it mean for the contemporary Politics of Judicial Federalism)

As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts\u27 comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court\u27s decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA) — whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side — strengthens Erie\u27s preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis\u27 Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come. Reprinted by permission of the publisher

To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis

Does stare decisis require future courts to follow the rules stated in a precedentsetting opinion Or must future courts merely reconcile their decisions with the ultimate result of the precedentsetting case It is widely assumed that a rulebased approach puts greater constraints on future courts but two recent Supreme Court decisions “ WalMart Stores Inc v Dukes and Ashcroft v Iqbal “ turn this conventional wisdom on its head In both cases what the Court said about the governing rules was not inherently controversial and would leave courts with considerable flexibility going forward But what the Court did in applying those rules “ the ultimate results in WalMart and Iqbal “ could be very destabilizing if stare decisis mandates consistency with those results in future casesThis article argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case To infer binding obligations from results alone creates a risk that “ as with WalMart and Iqbal “ future courts will be forced to intuit more radical legal changes than the precedentsetting court actually embraced Put simply a judicial decision should create binding law only to the extent that it says what the law is Unless and until new legal rules are declared whether by the judiciary in later cases or by legislation courts should be free to operate within the existing legal framework without being required to reconcile their decisions with the mere results of earlier one

Notice Pleading in Exile

According to the conventional wisdom the Supreme Courts 2009 decision in Ashcroft v Iqbal discarded notice pleading in favor of plausibility pleading This Article ” part of a symposium commemorating the Iqbal decisions tenth anniversary ” highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal It also argues that those decisions reflect the best way to read the Iqbal decision Although Iqbal is a troubling decision in many respects it can be implemented consistently with the noticepleading framework that the original drafters of the Federal Rules of Civil Procedure had in min

Reinventing Appellate Jurisdiction

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime\u27s pragmatic structure without its procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that such appeals are a superior vehicle for discretionary review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, 28 U.S.C. § 1292(a) provides a more coherent doctrinal foundation than the collateral order doctrine\u27s awkward interpretation of the term final decision under 28 U.S.C. § 1291

The Pleading Problem

Federal pleading standards are in crisis The Supreme Courts recent decisions in Bell Atlantic Corp v Twombly and Ashcroft v Iqbal have the potential to upend civil litigation as we know it What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a halfcentury worth of Supreme Court precedent while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process This Article provides that theory It develops a new paradigm plain pleading as an alternative to both notice pleading which the preTwombly era was widely understood to endorse and plausibility pleading which many read Twombly and Iqbal to endorse As a functional matter this new paradigm is largely consistent with notice pleading but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of referencebrbrThis approach is able to reconcile Twombly and Iqbal with preTwombly authority Indeed a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading First Twombly and Iqbal did not overrule the most significant preTwombly authorities The only aspect of prior case law that these decisions set aside was a misunderstood fiftyyearold phrase whose real meaning was never called into question Furthermore Iqbals twostep analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one The threshold issue is whether a crucial allegation in a complaint may be disregarded as conclusory only then does the plausibility of an entitlement to relief become dispositive While there remains some uncertainty about what conclusory means authoritative preTwombly sources the Federal Rules their Forms and Supreme Court decisions that remain good law foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phas