Procedural Barriers to Court

  • May 4, 2011

    EDITOR'S NOTE: This is part of a series of posts about the proposed Sunshine in Litigation Act of 2011. Read guest posts debating the bill here.

    Tomorrow the Senate Judiciary Committee will consider the “Sunshine in Litigation Act of 2011,” relating to the disclosure of information relevant to public health or safety that surfaces in civil actions. The bill’s merits have been discussed at length in an ACSblog guest blog post from the American Bar Association (ABA) President Stephen N. Zack and two guest posts from Richard Zitrin, lecturer in law at the University of California, Hastings College of the Law.

    In his guest post, Zack faulted the bill, S. 623, as poorly thought out, and one that would, if enacted, greatly hinder the ability of Americans to access the courts. “The ABA is deeply concerned that seeking a day in court will become a luxury item if courts and cases can’t operate with greater efficiency and speed. Problems with federal judicial vacancies and court underfunding already wreak havoc with case schedules and the resulting time it takes to resolve a dispute. These expensive new rules would cost everyone, and make access justice even more of a luxury item.”

    Zitrin in his initial guest post lauded the bill as a long overdue measure to ensure that information about defective products and drugs discovered during civil cases becomes quickly available to the public. In a response to Zack’s criticism of the measure, Zitrin followed up with this guest post, faulting the criticism for missing the point and for not addressing the substantive issue the measure is intended to address.

    Thomas M. Susman, director of the ABA’s Governmental Affairs Office told ACSblog, “Professor Zitrin recently mistakenly wrote that the ABA does not have substantial objections to S. 623, the Sunshine in Litigation Act. In fact, today the ABA sent a detailed letter outlining its serious concerns regarding the impact of this bill.”

    The ABA’s letter to the Senate Judiciary Committee is available here.

    The 12-page letter to the Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley builds the case that the Sunshine in Litigation Act, like similar efforts before it, would amend current civil procedural rules to the detriment of litigants and cases.

    The letter reads, in part:

    Bills that would amend the Civil Rules to regulate the issuance of protective orders in discovery, similar to S. 623, have been introduced regularly since 1991. Like S. 623, these proposed bills would require courts to make particularized findings of fact that a discovery protective order would not restrict the disclosure of information relevant to the protection of public health and safety.

  • May 3, 2011
    Guest Post

    By Stephen N. Zack, President, American Bar Association. This is the second in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read other posts in a debate about the bill here.

    If you were going to change the rules to a game to make them fairer, wouldn’t you ask the referees what they thought?

    Unfortunately, Congress has not. They are considering changes to important rules regarding litigation.  Disregarding the longstanding, successful process of court rules-making, however, this bill undercuts the third branch of government, threatens to raise court costs, and may even close off access to justice. All this without accomplishing what it really intends to do.

    It’s ironic that something called the “Sunshine in Litigation Act” doesn't involve the judiciary, in order to shed light on the issue. Judges know what problems exist in their courts and are best positioned to solve them. That’s why it is usually a wise, standard procedure to have the third branch of government set rules that address issues in the courts. But this measure avoids what usually works well, and instead would issue a legislative fiat about discovery protective orders. 

    If the courts were consulted, it would quickly become clear that the bill language is dangerously unclear and broad. As two Judicial Conference committees write in their letter of opposition to the Senate, Congress’ demands would lead to more confusion, not less, regarding what information has to be released, and when “…The provisions defining the scope of S 623 are problematic,” the conference warns, adding the standard in the law “is so broad and indefinite that it will either sweep up many cases having little to do with public health or safety and impose on all these cases the costly and time-consuming requirements of S. 623, or require the parties and court to spend extensive time and resources litigating whether the statute applies.”

    So, what is clear is that each court case falling under the shadow of these new rules would cost every party more time and money.

  • April 14, 2011
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

  • December 31, 2010

    The U.S. Court of Appeals for the Seventh Circuit ruled earlier this week that a lower federal court judge correctly held that a complaint alleging a conspiracy to fix prices of text message services was plausible enough for litigation to proceed.

    Verizon Wireless and other providers of text messaging services, citing the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, had urged the federal court in Chicago to find that the litigation’s underlying complaints against the wireless communications companies were insufficient and therefore should be dismissed.

    Seventh Circuit Judge Richard A. Posner concluded that the “district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.”

    Although the plaintiffs’ second complaint survived a Twombly challenge, Posner noted that Twombly was “designed to spare defendants the expense of responding to bulky, burdensome discovery unless the complaint provides enough information to enable an inference that the suit has sufficient merit to warrant putting the defendant to the burden of responding to at least a limited discovery demand.”

    Twombly and its successor, Ashcroft v. Iqbal, have been criticized by civil rights attorneys, law makers, and legal scholars as creating much more stringent pleading standards than intended by Congress. In its Iqbal decision, the Supreme Court held that for lawsuits to survive motions to dismiss, plaintiffs must provide much more specific factual information. The high court in Iqbal also stated that judges have greater discretion in dismissing complaints before the discovery stage of litigation. The Federal Rules of Civil Procedure created in 1938 had only required that plaintiffs file a complaint including a “short and plain” statement about why they were entitled to relief.

    Earlier this year, two civil rights attorneys argued in an ACS Issue Brief that the Supreme Court decisions in Twombly and Iqbal have undermined the “deliberative and inclusive process” that Congress established. For more discussion of the ramifications of Twombly and Iqbal, watch video of an ACS symposium, available here.

  • December 6, 2010

    Editor's note: The post below has been modified to make clear that Wayne County Circuit Judge David Allen was never nominated to a seat on the federal bench, but was recommended by Michigan Sens. Carl Levin and Debbie Stabenow to President Obama.  

    A Michigan state court judge who was recommended to a seat on the federal bench almost two years ago has withdrawn his name from consideration, citing excessive delay in moving the process forward that had put both his personal life and his career on hold, The Detroit News reports.

    In a letter to Michigan Sens. Carl Levin and Debbie Stabenow announcing his withdrawal, Wayne County Circuit Judge David Allen called the system of nomination and confirmation to the federal bench "broken."

    "While I appreciate and am honored by your joint recommendation to the president for this position, the almost two year delay (with the prospect of further delay in a much changed Congress come January) in the process has been long enough," Allen wrote. "I am ready to get back to my personal life and respected state court career, both of which have been on hold far too long."