Civil Procedure Fall 2009

Professor Oquendo
Rules 2
Bird’s Eye View 2
Procedural Rulemaking 2
Constitutional Underpinnings 5
Due Process Litigation 5
Due Process Testing 7
Representation10
Next Friends 10
Organizational Standing 11
Cause of Action 12
Collective Litigation 13
Notification 13
Preclusion 15
Class Certification 17
Settlement 17
Settlement and Subsequent Litigation 17
Class Certification for Settlement Only 18
The Forum and the Law 19
Subject-Matter Jurisdiction 19
State Law in Federal Courts 21
Personal Jurisdiction 23
Constitutional Limits on Choice of Law 24
Complex Litigation 25
School Desegregation 25
Prison Litigation 27
Arbitration En Lieu of Adjudication: Alternatives 28
Discovery 30
The Rule and the Exception 30
Abuse of Discovery 31
Pre-Trial Termination 33
Decision Makers 34
Judges and Juries 34
Impaneling the Jury 35
Assessing the Evidence 36
Punitive Damages 37
Attorney’s Fees 38

Rules

Bird’s Eye View

Kafka, The Trial
• About a man who is mystified by the law, and waits for his admittance to it. He
plays by the rules that are the same for everyone, but the door was only for him in the end.
• We always think of procedure as preemptive, but procedure is already the law; 99%
of cases are settled or decided before they even go to trial.

Hamdi & Hamdi v. Rumsfeld, 2004

• Plurality opinion: supported by the most justices, but not majority opinion
• Federal Courts have jurisdiction over:
• Federal Questions.
• Diversity Jurisdiction. (Parties from Multiple Areas)
• Next Friend: Hamdi is the petitioner in this case, but the father is “next friend”
because the real party of interest, the petitioner, is not available. The next friend must show that
the real party has a genuine claim, is not available, and that he has enough of an interest in the
outcome of the case to justify brining the case to court.
• Writ of Habeas Corpus: “You have the body”. In the case of a writ of HC, the
plaintiff is often referred to as a petitioner. A writ of habeas corpus is court order to produce
someone who is being illegally detained. In Hamdi, the father is asking the court to order the
government to produce his son or legally justify his detention. The petition for the writ serves as a
complaint, and here relies on the 5th and 14th Amendment.
• Preliminary Remedy: (remedy granted while the case is pending). Preliminary
remedies ordinarily cannot be appealed until the after the final decision. Sometimes, when the
case involves an issue that has not been decided before by the courts and the decision is very
important (extraordinary situations), a party can appeal a preliminary remedy.
 • Interlocutory Appeal: The government attempted to stop the case before a final
decision was made on the merits of the case by the district court, by making an immediate appeal
of the preliminary remedies (a preliminary appeal).
• Order of Production: The District Court issues an order of production for other
information to conclusively prove Hamdi’s status – “In order for me to make the decision the
court of appeals wants me to make, I need more information”.
• The court wanted in camera review: in the courtroom, not open to the
public.
• Due Process: The courts holds that due process demands that a US citizen being
held as an enemy combatant must be allowed to contest the factual basis of his detention before a
neutral decision maker.

Procedural Rulemaking
Federal Rulemaking – The Rulemaking Process
• Some Justices have expressed concern about the role of the Supreme Court in the
enactment of the Federal Rules of Civil Procedure on these grounds:
• Because they affect substantive rights, the rules should be passed through
the enactment process established by the U.S. Constitution, which does not include a role
for the Supreme Court. [Black and Douglas]
• Congress enacts them by passively not doing anything for 6 months
• Because it passes on the validity of the rules, the Supreme Court
compromises its impartiality by getting involved in any way in their creation.
• In light of its growing caseload, the Supreme Court does not have time to
review the rules before their enactment.
• The Supreme Court justices lack the expertise of the Judicial Conference
and its committees to pass judgment on the adequacy of the rules. [White]
§ 2071 Rule-making power generally
• (a) The Supreme Court and all other courts established by an Act of Congress may
prescribe rules for the conduct of their business. Such rules must be prescribed in accordance with
procedure described in §2072 and also must be consistent Acts of Congress.
• (b) Any rule prescribed by a court, other that the Supreme Court, shall be
proscribed only after giving appropriate public notice and opportunity for comment.
• (e) If the court determines there is immediate need for rule, the court can proceed
without public notice or opportunity for comment, but will have to provide such notice and
opportunity promptly after.
• (f) No rule can be proscribed by a district court other than under this section.
§ 2072 Rules of procedure and evidence – the power to prescribe
 • (a) The Supreme Court has the power to prescribe general rules of practice and
procedure and rules of evidence for cases in the US district courts (including proceedings before
magistrates) and courts of appeals.
• (b) Such rules cannot abridge, enlarge or modify any substantive rights. All laws,
which are in conflict with a rule, have no more force once the rule has taken effect.
• (c) Such rules may define when a ruling of a district court if final for the purposes
of appeal.
§ 2073 Rules of procedure and evidence – method of prescribing
• The Judicial Conference’s duties include…
• Approving rules received from the standing committee and passing those
rules along to the Supreme Court.
• Prescribing and publishing the procedures for the consideration of proposed
rules.
• Authorizing the appointment of committees to assist the Conference by
recommending rules
• The Standing Committees’ duties include…
• Reviewing the recommendations of the advisory committees and passing
these recommendations along to the Judicial Conference
• Advisory Committee’s duties include…
• Recommending rules to be proscribed.
• Each committee consists of members of the bench and professional bar, as
well as trial and appellate judges.
• To make a rule recommendation, the committee making the recommendation must
include the proposed rule, an explanatory note, and a written report explaining the body’s action
including any minority or separate views.
§2074 Rules of procedure and evidence – submission to Congress
• The Supreme Court hands over approved rules to Congress.
• Unless Congress acts to reject the rule, the rule becomes a law with the passage of
enough time.

Order on the 1993 Amendments to the Federal Rules of Civil Procedure

• Justices Scalia:
• Problem on the merits of change Rule 11, which says you have to sign
documents that you present to court.
• By signing them you are saying they are accurate documents, and if
they are wrong, then it means you misled the court and are subject to sanctions.
 • Amended in 93 to allow people to take back documents under a
certain period of time to avoid this.
• Frivolous lawsuits: doesn’t think rule change should be effected because it
makes sanctions for frivolous lawsuits too soft
• He doesn’t object to process, and thinks that justices must raise
objections when they come up and send rules back to committees if there is a
problem of principle.
• Justice White
• Doesn’t reject participation of justices in rule changes, but thinks that the
advisory committee and standing committee should have a greater part in this process and
the Supreme Court should view from afar

Rule 1 (Scope and Purpose of Rules)

• Rule 1: Federal Rules of Civil Procedure govern procedure in all civil actions and
proceedings in the US district courts
• Rules should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding
• There is an obligation to examine all the rules to determine a just conclusion

Smith v. Barry, 1992 (what qualifies as notice of appeal)

• Inmate Smith was claiming cruel and unusual punishment in jail in violation of the
th
8 Amendment. After verdict for P, Ds filed a JNOV, and P appealed while JNOV was still
pending, which was dismissed as untimely and informal.
• Judgment notwithstanding the verdict: despite what the jury said, you
shouldn’t follow through; no reasonable jury could have found for the plaintiff on the
arguments given
• Issue: Can an informal brief serve same purpose as filing an appeal?
• Holding: A document intended to serve as an appellate brief may qualify as a
notice of appeal. The notice afforded by a document, not the litigant’s motivation in filing it,
determines the document’s sufficiency as a notice of appeal.
• The Federal Rule of Appellate Procedure 3: Provides that an appeal from a DC
to a CA shall be taken by filing a notice of appeal with the clerk of the DC within the time limit.
• Rule3(c) describes the content of an appeal. Notices of appeal must…
• 1. Specify the party or parties taking the appeal
• 2. Designate the judgment, order, or part thereof appealed from.
• 3. Name the court to which the appeal is taken.
 • Although there is a principle of liberal construction with respect to the
requirements of Rule 3, noncompliance is fatal to an appeal.
• Courts should liberally construe requirements of Rule 3. Even if the document is
technically not what is required, the functional equivalent of what is required is acceptable.
• Federal rules do not preclude an appellate court from treating a filing styled as a
brief as a notice of appeal if the filing is timely under Rule 4 and conveys the information required
by Rule 3(c)
• Concurrence (Scalia):
• Basically, says the decision should not be arrived at under a liberal
interpretation of the rules, but under the rules as they were intended. Legal construction of
Rule 3 is not enough.
Constitutional Underpinnings

Due Process Litigation

• In the 5th Amendment, there is a due process clause, which says that no one shall be
deprived of life, liberty or property without due process of law; meant to apply to federal issues.
• In the 14th Amendment, there is an equal protection clause, as well as a due process
clause, meant to apply to the states.
• Substantive due process: uses the due process clause to challenge the content of
federal and state government legislation

Goldberg v. Kelly, 1970 (due process in welfare pre-termination hearings)

• Issue: Whether a state that terminates public assistance payments without affording
the recipient an opportunity for an evidentiary hearing prior to termination denies the recipient
procedural due process in violation of 14th Amendment Due Process Clause
• Procedure: class action suit against NYC (so 14th Amendment violation, not 5th).
Court rules in their favor skips Appeal and directly to SC
• Reasoning (Brennan): Hearing must occur: welfare is entitlement, upon which they
live, and in that sense is property, so due process applies to this interest.
• Also unconstitutional because the procedures do not allow recipient to
orally present evidence to that official, or to confront and cross-examine adverse witnesses.
• The protection of due process outweighs the expense of a pre-termination
hearing and continued benefits while decision is still pending
• Dissent (Black): the fact people are receiving welfare does not entitle them to it, so
they are not being deprived of any property. Constitution doesn’t stop states from stopping
benefits to which someone isn’t entitled. Court is making law and usurping legislative powers not
entrusted to them. Court is putting forth their personal views of right to aid, rather than putting
forth what the constitution requires.
Wheeler v. Montgomery, 1970 (due process in welfare pre-termination hearings)
• Issue: whether the California procedure for pre-termination review in welfare cases
satisfies the Due Process Clause
• Reasoning (Brennan): procedural due process requires such an evidentiary pre-
termination hearing, including right to testify, cross-examine witnesses, and secure counsel, before
welfare payments may be discontinued or suspended. Cites Goldberg v. Kelly.
• Dissent (Black): same as in Goldberg.
• Dissent (Burger, joined by Black): should defer to legislature. Since they are
changing procedure, should let them work out the procedure before getting involved. He believes
there is no constitutional issue.
• Dissent (Stewart): Close question, but does not believe that the procedures now
followed in NY and CA violate the Constitution.

Boddie v. Connecticut, 1971 (due process in divorce fees)

• Poor married couple on welfare wants to get divorced but can’t afford to do so in
CT court system because of the fees involved.
• Issue: Does this fee violate the DP under the 14th Amendment?
• Holding: you can charge a fee, as long as there is a possibility for indigent people
to file
• SC cites Griffin (a criminal defendant complains that he doesn’t have the
ability to compete in court system because he doesn’t have the money. SC says that is
violation of due process because he can’t go through process without money.)
• Marriage is solely regulated by the state, so you have to go through the
court. The interests of the state do not outweigh the personal interests here.
• Extend criminal due process to civil cases at least some of the guarantees in
criminal should apply to civil case
• Concurrence (Douglas): we shouldn’t go too far with this decision; since we’re
looking at poverty discrimination, we should have relied on Equal Protection rather than Due
Process.
• Concurrence (Brennan): this is good, go further; these fees deny equal protection
• Dissent (Black): we don’t have control of getting rid of this fee because getting rid
of a marriage is a state issue, not a federal issue; Griffin doesn’t apply because its criminal
• Neither DP nor EP justifies judges in trying to make the Constitution fit the
times, or hold laws constitutional on the basis of fairness.
• Court should not legislate; justices are not elected representatives so they
should defer to states, legislatures. DP guarantees life, liberty and property. Majority is
considering welfare benefits property, but they are a gift.
A Guide to Disability Rights Laws
• ADA: Prohibits discrimination on the basis of disability in employment,
government, public accommodations, commercial facilities, transportation, telecommunications
• Disability: person who has physical or mental impairment that substantially
limits one or more major life activities
• Rehabilitation Act: Prohibits disability discrimination in programs conducted by
federal agencies

Lovely H. v. Eggleston, 2005 (complaint) (due process in welfare hub centers)

• Case of discrimination, violation of due process; moving NYC welfare benefits to
hub centers.
• Rule 7: there will be a Complaint and an Answer
• Motion: the party asks the court to do something
• Rule 8: general rules of pleadings
• A pleading seeking relief must contain:
• (Preliminary statement, but not necessary?)
• Jurisdiction: court has subject matter jurisdiction – authority over the subject
matter
• Ps also argue supplemental jurisdiction – jurisdiction over questions that
are collateral or secondary. A federal court may look at state claims if they have impact or
are related to state claims.
• Issues:
• Rule 23 allows you to make class action
• There is a notification period for members of the class, sometimes
individual but otherwise by publication
• Must prove that the plaintiffs are numerous, have a common
complaint, are typical, and that the Ps fairly and adequately represent a complaint
• Everyone gets relief, and class actions get more press
• You can opt out of class actions
• Claims: violations of ADA, Rehabilitation Act, Due Process, NY State
Constitution, NY State and civil rights statutes and regulations
• Due process issue: misleading notice regarding the transfer of their
cases to hub centers that does not offer the right to challenge the transfers
• D discriminates by failing to administer services, programs ad
activities in the most integrated setting
 • Relief: prayer for relief asks for attorney’s and court fees, a declaration of
violation, and for the court to maintain jurisdiction until the case is settled
• Prayer for relief: asks the court what the plaintiffs want

Due Process Testing

Mathews v. Eldridge, 1976 (testing due process in Social Security benefit termination)
• Eldridge finds out through letter that his disability checks will be terminated
because they no longer believe he is disabled. Social Security Admin says you can get a hearing
within 6 months (a post termination hearing). Eldridge wants immediate and permanent
injunction to reinstate benefits: motion for preliminary injunction:
• Preliminary Injunction: tell the court why you should win and how the
current procedure violates precedent. Grants some actions against a party without the full
procedures of litigation. Must show likelihood of winning on the merits, great need,
irreparable harm without one (P has to prove that waiting to the end is not ok), no adequate
remedy at law; damages wont do, no undue harm for the Defendant
• Issue: Does Due Process in the 5th Amendment require those on Social Security
disability benefits get an evidentiary hearing?
• Procedure: DC: Procedure violated due process, granted preliminary injunction to
reinstate benefits. An appeal affirms SC reverses (Eldridge loses)
• Reasoning (Powell): Distinguishes from Goldberg: evidence more straightforward
due to continuous investigation and records/reports, weaker interest (disability isn’t based on need,
so not going as far). Kelly would have died without money and Eldridge is just receiving social
security. Not going to go an inch beyond Goldberg, which becomes a limits test.
• Dissent (Brennan): It’s wrong to determine that disabled people are not as poor or
dependent as people on welfare. Agrees that evidentiary hearing should be provided.
• Testing of Due Process (Mathews Test)
• Individual interest (Important here, but not as much as in Goldberg)
• Here, disability interests are not based on financial need, so potential
deprivation is less than when considering welfare issues
• Risk of erroneous deprivation of such interest and the probable value of
additional procedural safeguards (risk is smaller than in Goldberg because of system that is
set up)
• There are safeguards against mistake
• State’s interests (a high government interest in admin. costs)
• There would be a burden resulting from increased hearings and
expenses of providing benefits to ineligible recipients pending decision
Lassiter v. Department of Social Services, 1981 (due process clause applied to termination
of parental rights)
• Indigent and incarcerated mother who lost parental rights to her son argued that
lack of appointed counsel due to her poverty was a violation of DP.
• Issue: should P have been appointed legal council because she was indigent? Does
Due Process/14th Amendment entitle her to it?
• Reasoning: Use the Mathews Test although this comes out in P favor, the court
doesn’t find for P
• Individual interest for a parent to see children is clearly high
• Risk that a parent will be erroneously deprived of her child without counsel
is high, because many of these parents are uneducated and the procedure is complex
• State wants termination decisions to be economic and avoid cost of counsel,
but this doesn’t overcome private interests as important as these
• There is no automatic right to a hearing and it will be decided on a case-by-case
basis.
• Adopts the standard in Gagnon v. Scarpelli: it is not possible to formulate
precise guidelines to determine whether counsel is necessary to meet due process
• Concurrence (Burger): This case was not PUNITIVE to mother, it was
PROTECTIVE in that it had to do with the best interest of the child. Could have dismissed the
case, but willing to join with the narrow holding that council in termination proceedings should be
determined by state courts on a case by case AD-HOC basis.
• Dissent (Blackmun, with Brennan and Marshall): unique importance of a parent’s
interest in their child cannot constitutionally be lost through judicial proceedings without council.
Should extend rationale of right to attorney in criminal cases to here. Floodgates argument fails
because this case is so grave and unique. Applies Matthews test: Personal interest is huge, Gov
interest should be in preserving parent-child relationship; Risk of error is bigger than the majority
thinks. Goes on to show the clear shortcomings of Lassiter’s ability to speak, argue and
comprehend what is happening in the trial. Because of this, she should be guaranteed council
under the Due Process Clause.
• Dissent (Stevens): Court treated this case as though it involved an interest in
property and did not correctly note the gravity of the situation. This is deprivation of both liberty
and property. Agrees with the Blackmun dissent but would take it a step further. Regardless of
cost, he thinks this case involves issues of fairness and Lassiter should have been guaranteed
council the same way criminal cases are guaranteed council. Really underscore the important of
the parental interest and the state’s interest in making the right decision. She will have no right to
contact with her son, isn’t this more important that in some criminal cases like a DUI. Cannot
conclude that she knowingly waived right to counsel.

Leis v. Flynt, 1979 (due process and lawyers appearing in different jurisdictions)
 • Suit initially brought against Flynt about giving porn to minors. Flynt brings out of
state attorneys to represent him at arraignment.
• Issue: Court decision if they want to admit out of state attorney pro hac vice
• Pro hac vice: allowed jurisdiction for one trial only
• Holding: Lawyers have no protected interest to be able to represent Flynt under
due process; not life, liberty, or property interest. Due process protects rights, but does not create
rights.
• Reasoning:
• If you bring a due process claim, you have to show that you already have a
right. You can’t establish a new right.
• Allowing out of state lawyers is within the discretion of the court
• Dissent (Stevens, joined by Brennan and Marshall): A lawyer’s interest in pursuing
his calling is protected by DP. There is no legitimate reason to deny request. Because Flynt is
unpopular there, he might not otherwise get a fair trial. There is no distinction between right and
privilege in appearing pro hac vice.

Walters v. National Association of Radiation Survivors, 1985 (restricting attorney’s fees

for veterans)
• Law from 1864 says that lawyers can’t be paid more than $10 for hearings
regarding VA benefits. Plaintiff says this violates due process and requests preliminary injunction
• Not a class action- this is an individual action that benefits everyone, so
other people can bring other individual actions for the same thing, but this not true with a
class action (in which you are considered to have been part of the suit)
• Issue: Does restricting lawyer fees violate DP?
• Reasoning: Congress has right to create administrative system and court should
defer. Government has an interest in keeping VA system informal, and great weight is given to
government interests here.
• Not sufficient showing for federal court to intervene, not enough risk for
error (Matthews test). This is like Matthews in that benefit is not depended on for daily
survival
• Concurrence (O’Connor, joined by Blackmun): District court abused its discretion
in issuing a nationwide preliminary injunction.
• Dissent (Brennan, joined by Marshall): court was wrong to hear case regarding
preliminary injunction, can’t do so until after the court finishes its proceedings
• Dissent (Stevens, joined by Brennan and Marshall): this has constitutional
problems; what’s at stake is the right of an individual to consult an attorney of his choice, which is
firmly protected by the Due Process Clause. Lawyers wont make process more confusing; this
law is old and was used differently back then ($10 was reasonable amount and would prevent
 lawyers from charging too high a price, now it basically prevents getting a lawyer, period);
criminal charges for those lawyers who take more than $10 is not right.

Notes on the Hearing of Mrs. G., 1990

• Mrs. G. received letter notifying her she has received an overpayment of her
welfare benefits because of an insurance award she got from a car accident and it did not inform
her she could contest the county’s determination, but rather assigned a time to meet with the
county’s fraud investigator. Mrs. G has already spent this money on groceries, shoes, etc. She was
very worried about the penalties and concerned because she didn’t do anything wrong. The
country would deduct from her benefits the overpayment and could bring criminal charges, but she
has asked the workers at the welfare office about the overpayment, and they didn’t say there was a
problem. The welfare office did something wrong, not Mrs. G.
• Raises issues of procedure guided by the constitution (due process)
• Here, not the issue of having a hearing, but how to proceed in hearing
• Clashes between Mrs. G and lawyer
• Lawyer is being very strategic and Mrs. G has a different set of objectives
• Mrs. G is afraid that the agency will have some sort of retaliation against
her
• Mrs. G screws up the strategy of the lawyer issue of dignity, “she didn’t
mean to do anything wrong.”
• They lose in the hearing, but ironically, Mrs. G prevails in the long run when the
county decides to withdraw the overpayment claim

M.L.B. v. S.L.J., individually and as the next friend of the minor children S.L.J. and
M.L.J., 1996 (affording appeal before termination of parental rights)
• Father and mother get divorced; father has custody of children and remarries. He
starts a proceeding to terminate parental rights of the mother to adopt the child.
• Issue: Does the 14th Amendment require court to accord MLB access to an appeal,
available but for her inability to advance the required costs, before she is forever branded unfit for
affiliation with her children?
• Reasoning: Case is a “quasi-criminal” case, and since state allows for criminal
appeals “in forma pauperis” (though they may deny council), they should allow an appeal in this
case because of the grave circumstances and because she satisfies the Mathews test: stakes for
petitioner are high, risk of error is considerable, in the government interest appeals are few and
unlikely to impose undue burden on the state.
• In forma pauperis: in the form of a pauper; would allow her to bring
appeal without paying the filing cost
• SC says that this violates the DPC and Equal Protection Clause of the 14th
amendment
 • Equal Protection concern: if you feel you are being treated unfairly. Here,
concerns the legitimacy of fencing out would-be applicants based on ability to pay core costs.
• If race, religion, national origin, SC buts heavy burden on state to prove
facts (suspect classification)
• If there is discrimination like percentage of taxes, then state only has to give
a reasonable reason/justification
• EPC usually defers to the state regarding economic discrimination but
because this is a case about access to the courts, we will be stricter regarding the EPC
• Due Process concern: essential fairness of state-ordered proceedings anterior to
adverse state action
• Concurrence (Kennedy): due process clause would have been sufficient in
reaching their conclusion; poverty is not usually a group protected under EP. Not fair that the State
may erect a social bar in the form of costs beyond the petitioner’s means in a case of this gravity.
• Dissent (Rehnquist): Joins with all but II of Thomas’ dissent, and wants to keep the
rule of appeals strictly to criminal cases.
• Dissent (Thomas with Scalia): Where there is not purposeful discrimination, he
thinks the equal protection theory should not apply. This is a civil, not a criminal action.
Consequence will be demand on states to provide free assistance in all manner of civil actions.
Representation

Next Friends
• TO QUALIFY AS NEXT FRIEND: Must show that plaintiff was incompetent or
unable to appear at court, and that your interest is solely that of the party of interest.
• TO QUALIFY AS AN INDIVIDUAL: Must show that you have standing.
Article III of the Constitution gives the court right to hear cases and controversies. If you have no
interest in the case, then you have no standing.

Bessie Gilmore as next friend of Gary Gilmore v. Utah, 1976 (waiving representation by a
next friend)
• Facts: Gilmore convicted of murder, sentenced to death, and stay of execution was
granted as his mother wanted to appeal as his next friend. Gilmore doesn’t want to appeal, just
wants to die. Tells his lawyers to go away, and doesn’t want mom to file as next friend.
• Per curiam decision: order of the court
• Stay of execution: there hasn’t been a full examination of the issues at hand
• Reasoning: Because Gilmore was competent to waive his right to appeal; he was
afforded all the necessary access to the judiciary process. Because he challenged his mother as
“next friend”, he waived his right of appeal and rendered the concept of “next friend” inapplicable.
 • Concurrence (Burger and Powell): the court does not have the authority to stay the
execution in the first place. Next friend concept is not applicable here since Gary was available to
seek relief himself.
• Dissent (White with Brennan and Marshall): Gilmore shouldn’t be able to waive
his rights because there are serious concerns about the constitutionality of his death sentence;
consent of D does not mean state can impose punishment otherwise forbidden by 8th Amendment
• Dissent (Marshall): time Gilmore had to consider his death sentence wasn’t enough
to make a rational decision to waive his rights to appeal and waiver is invalid. 8thAmendment
protects not only freedom from cruel and unusual punishment, but also ensures that state authority
cannot administer barbaric punishments.
• Dissent (Blackmun): Would not have given summary consideration but instead a
full hearing because Bessie Gilmore’s claims have validity.

Whitmore, individually and as next friend of Simmons, v. Arkansas, 1990 (standing to

defend criminal as next friend to avoid own death penalty)
• Facts: Simmons was convicted for terrible crime, waived his right to appeal the
decision and court found him competent to do so. Whitmore challenges and tries to intervene
using Rule 24 because Gilmore made him look good and he wanted to get off death row in
comparison.
• Issue: Does a third party have standing to challenge the validity of a death sentence
imposed on a capital offender who has elected to forgo his right to appeal to the State Supreme
Court?
• Reasoning: Arkansas assesses murders in comparative pool when deciding if death
penalty is appropriate, P argues that he will be injured by not having crimes of Simmons in pool.
The court does not like this reasoning and finds it too attenuated. He needs Article III standing, but
the court here thinks his interests are too speculative. It dismisses his argument and moves on to
next friend. If a person has waived his right of appeal in a death sentence case and the court has
found him competent to do so, the issue of next friend in moot.
• Dissent (Marshall with Brennan): Gravity of the death penalty should guarantee
appellate review (once you’re dead, that’s it). The 8th and 14th Amendments require appellate
review of at least death sentences to prevent unjust executions. Since common law created the idea
of standing, the court can change the rules; rules are being applied to rigidly here. Whitmore has
individual standing and next friend standing.

Organizational Standing
• Test for Standing:
• P must suffer injury of fact (concrete and actual/imminent harm)
• Causal connection between the injury and conduct—easily traceable
• Likely that injury will be redressed by a favorable decisions
 • An organization or its members must have a particularized, actual invasion of a
protected interest.

Sierra Club v. Morton, 1972 (pursuing standing without showing injury)

• Sierra Club wanted to maintain the Mineral King Valley and sought to oppose plan
to develop it by Disney, seeking declaratory judgment and injunctions against development.
• Declaratory judgment: more polite than an injunction; has less harsh terms
• Equitable remedy: meant to address a violation of the Constitution or
another law; not monetary damages
• Preliminary injunction: must show likelihood to win, will suffer
irreparable harm without injunction, no undue damage to D, no adequate remedy at
common law
• Issue: Does the Sierra Club have standing to assert a claim based on an issue that
affects many people but does not injure the Sierra Club in fact?
• Reasoning: Sierra Club is a public interest group and it has not shown any injury in
fact to itself or any of its members, so does not have standing. If the court allows review here, it
would open floodgates for anyone who has a remote interest to bring suit for a problem that affects
many. The holding does not insulate government action from review, but it limits claims that can
be brought.
• Dissent (Douglas): Douglas argues that environmental objects themselves should
have standing so that the interest of preserving natural resources would be easier. Inanimate
objects and environmental groups should have standing independent of other organizations.
• Dissent (Brennan joins with Blackmun): Mineral King will now most certainly be
developed. Two alternatives:
• (1) Reinstate the preliminary relief granted by the district court, on
condition that complaint must be amended to meet specifications for standing
• (2) An imaginative expansion of the traditional requirements for standing in
order to enable organizations to litigate environmental issues.

Lujan v. Defenders of Wildlife, 1992

• Wildlife has two women who are affected because they visited foreign countries
and saw animals and might want to go back and see them again, but US actions in those countries
could eliminate them. Lujan reinterprets rule seeking to protect endangered species against threats
created by man, Defenders wants to change rule back to more expansive interpretation.
• Issue: Does Defenders of Wildlife have standing?
• Reasoning: Three part test to determine standing:
• (1) P must suffer injury of fact: invasion of legally protected interest that is
concrete and actual, not conjectural or hypothetical
 • (2) Causal connection between injury and conduct complained of that is
easily traceable to the challenged action
• (3) Likely that injury will be redressed by a favorable decision.
• They failed on all three.
• Applying test, court not convinced that the injuries of the two members presented
by P were imminent. Also fail to address redressability and fail to show their injury isn’t the same
as injuries put forth in Sierra Club. The conduct complained of must have caused the injury, and
the injury must be able to be addressed through a favorable decision.
• Concurrence (Kennedy and Souter): would not reach the issue of redressability: P
did not show (1) of test, ends there. Congress must meet certain requirements before opening up
floodgates to legislation (define prevented injury and the class of people allowed to sue.)
• Concurrence (Stevens): Agrees in rule interpretation and in judgment. He doesn’t
agree with issues relating to imminence of injury or redressability. While he believes the entities
do have standing, he agrees with the government’s interpretation of the rule and thus agrees in the
judgment. More flexible on interest of standing, but this statute does not apply as the claim says it
does.
• Dissent (Blackmun and O’Connor): D raises genuine issue of material fact as to
injury and redressability issues; need not prove harm, just genuine issue. Questions rejecting
standing for procedural inquiries (imposing more limitations on Congress than what is in
Constitution).

Cause of Action
• Due Process ensures that a court will hear a case (Jurisdiction) as long as the
parties are those who are able to bring the case (Standing,) and there is a valid case or controversy
to be considered (Cause of Action.) The court will then consider what form of redress is necessary
(Relief.)
• If a right cannot be enforced by other means, the court can enforce a private cause
of action.

Davis v. Passman, 1979 (due process and employment gender discrimination)

• Congressman hired Ms. Davis to work and then fired her for not being a man.
When creating Title VII cause of action for discrimination, Congress did not create one for federal
employees, so she is excluded from bringing action under Title VII.
• Issue: can a cause of action and a damages remedy be implied directly under the
Constitution when the Due Process Clause of the Fifth Amendment is violated?
• Reasoning (Brennan): Due Process Clause confers a Constitutional right to be free
from sexual discrimination and allows a claim in Federal Court. P has no other means to sue than
5th Amendment, so it’s ok for P to invoke general federal question jurisdiction of the DC. While
Congress didn’t expand the Civil Rights Act protecting federal employees from discrimination to
Congressional employees (Speech and Debate Clause), they didn’t mean to foreclose alternative
remedies available to those not covered by the statute.
 • Why the 5th Amendment? Both boss and employees are federal employees,
so she is suing a federal institution rather than the state (14th Amendment)
• Dissent (Burger with Powell and Rehnquist): Separation of powers question: if
Congress wants to treat its employees differently, then they should be able to.
• Dissent (Stewart and Rehnquist): Question should be if communication is within
Speech and Debate Clause (congressman and senators can’t be arrested when going back and forth
between chambers to vote). If it is, case should be dismissed.
• Dissent (Powell and Rehnquist): agrees with Burger but writes separately to
emphasize that there is no precedent justifying intrusion on Congress’ powers. A congressman
can’t perform effectively unless staff he is confident in supports him.

Lovely H. v. Eggleston, 2005 (answer)

• Defendant denies various allegations in complaint
• Defenses:
• Fails to state a claim upon which relief can be granted
• Individually named D is immune under doctrine of qualified immunity
• D has not violated any rights under Constitution
• D acted reasonably, properly, lawfully and in good faith
• Ps unreasonably failed to take advantage of preventive and corrective
opportunities provided by D to otherwise avoid harm
• D requests judgment dismissing the complaint and denying all relief requests
• Answers in general:
• Whatever you do not react to, you are assumed to have affirmed
• You can plead in the alternative, and say that if I’m not able to move the
court with my denials of allegations, I have a few defenses in my favor
Collective Litigation

Notification
Mullane v. Central Hanover Bank & Trust Co., 1950 (sufficiency of notice to beneficiaries
of a common trust fund)
• Only notice to beneficiaries of common trust that the account was being settled was
by publication in a newspaper. Accountant Mullane makes a special court appearance, objecting
that notice given violated 14th Amendment DPC even though it satisfied NY statute.
• Special appearance: Mullane says he’s here, but not really. If person
comes in and sits down, he will be taken to have recognized the jurisdiction of the court
over him, and wouldn’t be able to claim that the notice statute is unconstitutional.
 • Issue: did the notice in the newspaper meet due process?
• Reasoning: for people whom the bank had names/addresses of, then notice in the
paper not sufficient; must send individual notice. Resorting to publication is only ok when it’s not
reasonable to give more adequate warning. If people can’t be found, indirect method fine. It’s not
fair to adjudicate issues without informing people who are going to be affected by the decision,
because of res judicata
• Res judicata: the thing has already been adjudicated
• Dissent (Burton): Notice in this instance is properly within the discretion of the
state. The federal Constitution does not require it. State created fund, so state should be able to
define the way the account is managed. Stare decicis.
• In Rem jurisdiction: typically a proceeding that involves a piece of property.
Usually said that courts have sufficient jurisdiction to make decision independent of where
possible claimants might be.
• In Personam jurisdiction: when talking about people attached to the rights and
not property, then it’s important to show that Court is connected with the people
• Notice requirements:
• Must be of such nature as reasonably to convey the required information
• It must afford a reasonable time for those interest to make an appearance
• If conditions are reasonably met, constitutional requirements are satisfied

Rule 23: Class Actions

• Basic Requirements for Class Action – Rule 23(a)
• Numerosity: Class is so large that joinder of all members impractical
• Joinder: process through which you incorporate (join) parties to a
suit
• Commonality: There are questions of law or fact common to the class
• Typicality: Claims of the representative parties are typical of the claims or
defenses of the class. You want someone who will represent in the real sense of the word.
• Adequacy: Representative parties will fairly and adequately protect the
interests of the class. Since the decision will be bound to everyone and they will be saddled
with the judgment at the end you want to make sure everyone is adequately represented.
• Types
• Coherence – Rule 23(b)(1) [inconsistent adjudication]
• Disposing of matters individually could create inconsistency and
affect the ability of the class actors to protect their interests
• Court determines what adequate notice is required
 • Injunctive – Rule 23(b)(2) [affected a group equally]
• Seeking an injunction, not money, as necessary to redress a
violation. Arguing that defendant has acted in a way that has affected a group
equally.
• Court determines what adequate notice is required
• Catch-All – Rule 23(b)(3) [everything else]
• You don’t fall within coherence or injunctive classes, but still have
sufficient common issues of fact to justify case as class action.
• Individual notice may be required to extent practical under the
circumstances
• The matters pertinent to these findings include
• The class members’ interests in individually controlling the
prosecution or defense in separate actions.
• The extent and nature of any litigation concerning the
controversy that was already begun by or against members of the class.
• The desirability/ undesirability of concentrating the
controversy in a certain forum
• The likely difficulties in managing a class action.

Eisen v. Carlisle & Jacquelin, 1974 (acceptable notice in catch-all class action with small
stakes but vast parties to notify)
• P odd lot trader files suit against two firms claiming monopoly, seeks damages and
injunctive prohibition of future excessive trading. P’s stake is $70 (so Class Action or nothing,
because no attorney would take this complex case for a share of $70). There is a problem in who
would bear the expense of notice, and DC said P is likely to prevail so D should bear 90% notice
cost, but this is still a lot, and Rule 23(b)(3) requires individual notice to identifiable class
members
• Issue: is the DC’s ruling on notice issue correct?
• Reasoning: Yes: 23(c)(2) [NOTICE] holds that in any Class Action under (b)(3)
[CATCH ALL] all class members must be advised of the action and their right to appear through
counsel and that they will be bound by the decision. Individual notice must be sent to everyone
who is known. Burden of costs on D improper; P must bear them. Eisen says by making him sent
individual notices, it will kill the lawsuit because these are all people with small amounts of
money on the line and the expense of all these notifications is massive. Court understands the pain
but is bound by rule 23(b)(3) and the rules don’t say anything about shifting costs. Says district
court MUST decide certification of the class before they can look at the merits.
• Dissent (Douglas, joined by Marshall and Brennan): Class action is one of few
legal remedies a small claimant has against the status quo. Suggests that case could be brought
 under Rule 23(c)(4) and class could be broken down into different subclasses, all with shared
general interest. Case brought by subclass and then could be built into a bigger class.

Preclusion
• Collateral Estoppel: (issue preclusion) Party is stopped from making an
argument: Allows you to prevent the opposing party from re-litigating an issue that has already
been decided.
• (1) Protects litigants from burden of over litigation
• (2) Judicial economy
• Offensive: P seeks to stop D from re-litigating issue D has already lost.
• Encourage plaintiff to rely on previous judgment against a defendant
to which the plaintiff was not bound (litigation up)
• Could be unfair to defendant, may not have incentive to defend
vigorously
• Issue of fairness:
• Did the defendant fully litigate the issue vigorously (if it was
for small amount of money first time maybe not)?
• Was the judgment consistent with any previous decision?
• Were the same procedural opportunities available both
times?
• The general rule should be that if a plaintiff could have easily joined
an earlier action, the trial judge should not allow the use of offensive collateral
estoppel. [But courts have broad discretion in application]
• Defensive: D wants to stop P from re-litigating issue that P has lost.
• Stop party from switching adversaries.
• Res Judicata: [claim preclusion] judgment on the merits in a prior suit bars a
second suit involving the same parties or their privies based on the same cause of action. Cannot
say oh I didn’t litigate that claim last time, so I want to bring another suit. You should have done it
the first time. Here, all issues are considered litigated because they were considered as part of the
original controversy even if they were not brought up (so say someone brings a suit for gender
discrimination under title 7, loses, then tries to bring a tort suit on the same issues res judicata
applies)
• MUST BE A FINAL JUDGMENT ON THE MERITS TO USE
• Doesn’t apply to appeal cases, because the issue is not considered fully
litigated

Parklane Hosiery v. Shore, 1979 (collateral estoppel)

 • Parklane issued false statements during a merger. SEC filed a suit before this case
and was granted injunctive relief. Shore now wants summary judgment against Parklane.
• Issue: Whether a party who has had issues of fact adjudicated adversely to it in an
equitable action may be collaterally estopped from relitigating the same issues before a jury in a
later legal action brought against it by a new party.
• Equitable action: no jury, just a matter brought exclusively before a judge.
Ordinarily, equitable relief (injunctions, declaratory judgments, mandamus) is sought.
• Collateral estoppel: protects litigants from the burden of relitigating an
identical issue with the same party, and promotes the judicial economy by preventing
needless litigation.
• Reasoning: In cases where a P could have easily joined the earlier action, a trial
judge should not allow offensive collateral estoppel, but in this case, none of the conditions that
would prevent collateral estoppel are present. Because of seriousness of the charges and
foreseeability of subsequent actions, D had every incentive to fight as hard as they could.
• Collateral Estoppel not violation of 7th Amendment, which preserves the right to
jury trial. At common law, litigant wasn’t entitled to have jury determine issues already
adjudicated.
• Dissent (Rehnquist): This does violate 7th Amendment. It’s unfair to allow CE
when the party who is sought to be estopped has not had an opportunity to have the facts of his
case determined by a jury.

Cooper v. Federal Reserve Bank of Richmond, 1984 (bank employees barred by res
judicata in discrimination suit)
• Petitioners, two employees of respondent bank, challenged a decision that held that
their claims for discrimination were barred by res judicata under a dismissed class action for the
same underlying claims of discrimination. They come as representatives of a class and file for
intervention under Rule 24.
• Issue: whether a judgment in a class action determining that an employer did not
engage in a general pattern or practice of racial discrimination against the certified class of
employees precludes a class member from maintaining a subsequent civil action alleging an
individual claim of racial discrimination against the employer.
• Reasoning (Stevens): there are two types of claims here: individual claims of
intervening Ps, and a class claim that the bank followed discriminatory policies under Title VII.
Being part of a class not finding class wide discrimination does not preclude members from
litigating individual claims of discrimination.
• Civil Rights Act Title VII: P has burden of showing that he is a minority,
applied and was qualified for a vacant position, was rejected, and the position remained
open seeking similar qualifications after rejection.

Class Certification
Lovely H. v. Eggleston, 2006
• Ps file certification for class; want a preliminary injunction, permanent injunction
and a declaratory judgment
• Declaratory judgment: determination by the court of the rights of the
parties
• Main class: recipients of public assistance, Food Stamps and/or Medicaid in
NYC who have an impairment
• Subclass: such class members who have a substantially limiting impairment
• Judge goes through 4 parts of Rule 23(a): numerosity, commonality, typicality,
representativeness; they have been met
• Judge agrees that it can proceed under Rule 23(b)(2): class action in which you are
seeking an injunction or declaratory relief, civil rights cases
• Judge determines if preliminary injunction should be put into place. Preliminary
injunction is extraordinary; you have to convince the court that waiting until the end will be bad,
plaintiff has burden
• Court goes through factors:
• P will likely win on the merits, will be harmful, cannot wait, no undue
damage to D
• Class certification is granted; preliminary injunction granted
• Ps also submit motion to include a named plaintiff and add events of what
happened to her, to add specificity to claims of denial of reasonable accommodations; motion
granted.
Settlement

Settlement and Subsequent Litigation

• Courts encourage settlements.
• While courts generally do not get involved in private settlements, in Class Actions,
the judge must consider the settlement to make sure it is in the class’ interest.

Rule 23 (Class Actions)

• The claims, issues or defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court’s approval.
• In a class action, the judge has to ensure that a settlement is in favor of the class as
a whole, not as an individual.

Martin v. Wilks, 1981 (interveners and class actions)

• NAACP and seven black firefighters, representing a class (Martin class), bring suit
against personnel board and City of Birmingham on the basis of discriminatory hiring and
 promotion practices. In the course of litigation, a consent decree is brought to the court for
consent (Rule 23(e) for class action settlement) and notice is published. The Firefighters’
Association filed objections to the decrees as amici. Following the hearing, the Association and
two members move to intervene, but motions are deemed untimely. Wilks and a class of seven
white firefighters file a suit against the board and city for injunctive relief against the decrees, as
discriminatory.
• Amicus curiae: “friend of the court”; there to assist the court by giving
their views on the proceedings
• Motion to intervene: a motion to become a party of the proceedings.
Referred to as an intervener, but have all the rights of a party (which amici do not have).
Under Rule 24, this must be done in a timely fashion.
• Issue: can Martin class intervene as plaintiffs and succeed in dismissing the Wilks
case as a collateral attack on the decrees?
• Reasoning: Wilks class can’t be deprived of their chance to litigate the issue; they
failed to intervene in the first case, so they haven’t had their day in court. They are not bound by
the decrees; if you want another party to be bound by the proceedings, they must be joined.
Settlement is binding only on the parties to the litigation.
• Joinder: forcing a person to become a party under Rules 18 and 19. They
have full party rights, but often don’t wish to be parties.
• Dissent (Stevens): DC did not decide that the decision of the original parties was
binding on Wilks, they were only saying that the city and board didn’t have an intention to
discriminate, but are bound by the consent decree.

Matsushita Electric Industrial Co. v. Epstein (full faith and credit)

• While Class Action against Matsushita was pending in Delaware, a second suit
(present case) was filed against them. The first suit was settled, and the second suit declined to
certify the class and granted summary judgment to Matsushita.
• Issue: Can a federal court withhold full faith and credit from a state court judgment
approving a class action settlement because the settlement releases claims within the exclusive
jurisdiction of the federal courts?
• Reasoning: No: Full Faith and Credit mandates judicial proceedings of any state
have same full faith and credit in all US courts. Court must accept the rules chosen by the state
from which judgment is taken.
• Concurrence/Dissent (Stevens): The issue should have been dealt with by Appeals
in the first instance; Ninth Circuit remains free to consider whether Delaware courts fully and
fairly litigated the adequacy of class representation.
• Concurrence/Dissent (Ginsburg, joined by Stevens, and Souter in part): state
judgment is generally not entitled to full faith and credit unless it satisfies the requirements due
process (14th). Concerned that P doesn’t feel they were well represented in Delaware. App court
 should evaluate the preclusive effect of the Delaware judgment through the lens of Delaware’s
preclusion law.

Class Certification for Settlement Only

Amchem v. Windsor, 1997 (asbestos settlement case)
• Federal Court consolidated all asbestos cases pending in federal court; attorneys for
both sides began settlement negotiations, including efforts to find a means of resolving future
cases, which leads to class action that is not to be litigated, but entire process handled on one day
for future claims.
• Issue: What is the legitimacy under Rule 23(b) of a class-action certification
sought to achieve global settlement of current and future asbestos-related claims? Concern is that
some people have claims now, and some will have claims later, so there is a question of adequate
representation for future claims.
• Reasoning: No - The health consequences of asbestos exposure cannot satisfy the
23(b)(3) commonality standard. Therefore, certification cannot be upheld because it rests on a
false conception of 23(b)(3)’s predominance requirement. There is also question as to whether the
named plaintiffs can adequately represent class.
• Concurrence/Dissent (Breyer and Stevens): Agrees that settlement is relevant to a
class certification, but has several problems with its approach:
• (1) Greater need for settlement here than majority opinion suggests
• (2) Should consider settlement issues in determining common issues
• (3) SC can’t second-guess DC on adequacy of representation
• (4) Can’t accept majority opinion that suggests settlement is unfair
• The SC should have not questioned the conclusions of the DC judge, who had the
first-hand opportunity to assess the adequacy of the representation, especially without prior
consideration by the CA.
• That the CA thought settlement was not relevant in determining commonality was
enough to remand the case, because it indicated that the CA did not conduct a sufficient review of
what happened in the DC. The judgment of the CA should be vacated and the case remanded for
further proceedings.

Ortiz v. Fibreboard Corp., 1999 (asbestos settlement case)

• Asbestos litigation – limited fund created by D and their insurance companies to
pay lawsuits, but didn’t plan to actually exhaust all funds available. Settlement class action was
granted, but when Amchem was decided, it was reevaluated.
• Issue: What are the conditions for certifying a mandatory settlement class on a
limited fund theory under Rule 23(b)(1)(B)?
• Reasoning: fund must be limited independently of the agreement of the parties to
the action, and has been allocated to claimants belonging within the class by a process addressing
any conflicting interests of class members. Mandatory class treatment is justified when a fund has
a definitely ascertained limit, all to be distributed based on a common theory of liability. Class
certification was impermissible, as funds were not so limited and inclusiveness of proposed
class/equitable treatment of class members was not established.
• Concurrence (Rehnquist with Scalia and Kennedy): Not free to devise an ideal
system for adjudicating these claims. Unless and until the FRCP are revised, the Court's opinion
correctly states the existing law. But the overwhelming number of asbestos cases cries out for a
legislative solution. Rehnquist concurrence: the rules won’t allow us to do something about this
but shouts at congress to do something.
• Dissent (Breyer and Stevens): Certification should only be questioned if the lower
court really screws it up. Individual asbestos cases are tort cases, which courts usually resolve, not
legislatures, and it is not realistic for each P to have a day in court. Insurance policy was limited,
so there was risk that not all P’s claims would be satisfied.
The Forum and the Law

Subject-Matter Jurisdiction
• Federal courts have limited jurisdiction – they can only hear cases they’ve been
delegated
• Article III of the Constitution says that Federal Courts have original jurisdiction in
some cases (get to hear the case the first time; only needs to be one of the below):
• Federal question jurisdiction: issue based on the Constitution, federal
regulation, federal law, etc
• NOT only Federal courts can decide these issues – this is not
exclusive jurisdiction! Sometimes state courts can decide these issues, for example,
if state and federal questions are intertwined
• Diversity jurisdiction: see requirements in 28 USC 1332
• Corporations are given jurisdiction both where they are incorporated
and where they have their headquarters
• You have to have complete diversity; for example, you can’t have a
P from NY and a P from CT against a D from CT based on diversity
• Why do people like federal courts so much?
• Might be more friendly to plaintiffs in certain cases
• May be cheaper, but it depends on the case
• History of bigger payoffs, friendly judges and friendly juries
• Efficiency
• In rem jurisdiction: jurisdiction over the thing
• In personam jurisdiction: jurisdiction over the person
 • You must have both personal and subject matter jurisdiction to bring a case.
Diverse citizens can bring a case in any state.

US Code, Title 28
• Full Faith and Credit Act (28 USC 1738): mandates full faith and credit of state
court judgments incorporating global settlements.
• Exception: if the state does not have subject matter jurisdiction
• 28 USC 1331: District Court shall have original jurisdiction of all civil
actions under the Constitution, laws, or treaties of the US.
• 28 USC § 1332: Diversity of citizenship: district courts have jurisdiction
of civil actions when the amount is >75,000 and between:
• Citizens of different states (all Ds must be from different states than all Ps;
it’s irrelevant as to which district the suit is brought in; depends on state residency at time
of SUIT, not time of accident)
• Citizens of a state and citizens or subjects of a foreign state
• Citizens of different states and in which citizens or subjects of a foreign
state are additional parties; and
• A foreign state, as defined elsewhere, as P, and citizens of a state or of
different states
• 28 U.S.C. § 1367: Supplemental Jurisdiction:
• (a) Federal Can hear Federal Questions, and make those decisions, as well
as the other state issues raised in the case related to the Federal Question.
• (b) Some Exclusions to Supplemental Jurisdiction apply:
• Plaintiff’s Claims under Rule 14 (3rd Parties), 19&20 (Joinder), or
24 (Intervention.) As well as any claims under 19 (Joinder) and 24 (intervention)
more broadly.
• Problem of exercising Supplemental jurisdictions over
parties brought into a suit later.

Rule 14(a) (impleaders and third parties)

• When a D may bring in a 3rd party:
• A defending party may, as a third-party plaintiff, serve summons and
complaint on nonparty who might be liable to it for claims against it.
• P may assert against third-party defendant any claim arising out of the
transaction or occurrence that is the subject matter of the Ps claim against the third-party P
• Rule 14 grants impleaders (as opposed to Rule 19/20 for joinders)

Owen Equipment & Erection Co. v. Kroger (diversity jurisdiction)

 • Man dies and wife from Iowa brings diversity suit. D1 from Nebraska and Iowa
(incorporated in one, HQ in the other); D2 (later joined under Rule 14(a)) from Iowa
• Impleader: P v. D0, but then there is a third-party complaint. D0 then also
becomes a P, and makes a case against D1
• P v. D0 P v. D0/P v. D1
• There is a P and two Ds, similar to joinder, but the mechanics are a
little different. The defender here is saying they are off the hook and D1 should be
responsible, so they are dismissed (D0 disappears)
• Issue: Can a P maintain a claim against a 3rd party D when there is no independent
basis for federal jurisdiction over that claim? (Is there jurisdiction between P and D1?)
• Reasoning: Case should have been dismissed – there is no independent basis for
jurisdiction other than diversity, and there is no diversity as required here. Statute (28 USC
§1332(a)(1)) requires complete diversity (citizens of different states).
• This is state law question, but which state? Federal court decides on the basis of the
state’s choice of law principles which state’s laws ought to apply; for example, Iowa court might
determine where accident took place and apply those rules
• Dissent (White): That the two claims are logically connected/entwined, and as the
majority says in their opinion the jurisdiction of federal courts can handle those types of cases.
Collusion is not a danger here, so they should not worry about it. § 1332 should only require
complete diversity for parties the P brings into the suit. If another party brings in someone without
complete diversity, that should be bound up in the original claim and there should be federal
jurisdiction
• Ancillary Jurisdiction: term used in federal courts when the court decides matters
not normally under federal jurisdiction so that it can give a judgment on the entire controversy,
when the main issue is a federal matter which it is authorized by law to determine.
• 28 USC § 1367 Supplemental Jurisdiction
• Federal courts shall have supplemental jurisdiction over other claims related
to claims where they have original jurisdiction, such as joinder or intervention of
additional parties
• Where District Court has jurisdiction solely based on 28 USC 1332, DC
shall not have supplemental jurisdiction under 1332(a) over claims by P made against
persons made parties by FRCP 14, 19, 20 or 24, when having jurisdiction would violate
complete diversity under 1332 (This is the case here).
• Also no jurisdiction if the court has dismissed all claims they had original
jurisdiction over

State Law in Federal Courts

• In Diversity cases, the Federal Courts must apply State Statutory and Common
Law.
 • Policy: Eliminate forum shopping; create consistency regardless of court
used.
• Federal Courts must use the State’s Principles of Jurisdiction to determine which
state’s laws must be applied.
• The Federal Rules of Civil Procedure, and not state procedures should be used in
diversity suits, despite using state substantive law.
• Federal courts may not hear cases that lack diversity and which rest on adequate
and independent state grounds.

Erie Railroad Co. v. Tompkins, 1938 (applying federal or state law)

• Tompkins was walking next to RR tracks in PA; says he was a licensee because he
was on a commonly used footpath, when he was struck by something that looked like a door
coming out of a passing RR car. Sued RR in federal district court.
• Issue: Should district court have applied federal common law, which used an
“ordinary negligence” standard for the duty of care owed to persons walking along railroad tracks,
instead of PA’s common law “wanton negligence” standard for duty of care to trespassers? Was
the federal court free to disregard PA common law?
• Reasoning: Federal court will apply the conflict of law principles of the state in
which they sit (choice of law). Swift case held that federal courts don’t have to apply unwritten
state laws on a basis of diversity jurisdiction, but there is controversy as to this rule: Swift has
political and social defects and mischievous results, makes equal protection impossible, and is
unconstitutional. PA common law should have been controlling.
• Except where the constitution/treaties/acts of congress say otherwise, the common
law and statutory law of the states must take precedence. There is no federal common law, and
Congress can’t alter a state’s substantive common law.
• Concurrence in part (Reed): Agrees with the result, and overturning Swift, but
disagrees so far as the unconstitutionality of the ‘course pursued’ by the federal courts. Doesn’t
know if he agrees with the idea that federal courts should have to follow state decisions. Also
doesn’t agree with the courts conclusion that Congress can’t determine what substantive laws shall
govern federal courts
• Dissent (Butler): The writ of cert presents no constitutional question, and a general
rule the court doesn’t rule on things not presented, so they shouldn’t have considered the
constitutional issue. Case could have been reversed on other grounds, didn’t need to decide the
issue on constitutional grounds, so he dissents.
• Eerie paradigm: apply state law. What substitutes general common law?
Precedent of case law. If DC doesn’t have a statute to apply, apply the precedent. If state doesn’t
have a specific precedent, DC could ask the highest state court; certify the question to state court.
The other thing DC could do is ask what state court would do if they had this case, looking at the
other precedents

Hanna v. Plumer, 1965 (diversity of citizenship)

 • P, Ohio citizen, filed complaint in Massachusetts DC for injuries from an
automobile accident in South Carolina, allegedly by the negligence of the D, a Massachusetts
citizen, who is now deceased. Respondent filed answer inter alia, claiming that action couldn’t be
maintained because the complaints weren’t served by hand to the executor, as Massachusetts’s law
requires.
• Issue: Whether in a civil action where the jurisdiction is based on diversity of
citizenship, service of process shall be made in the manner prescribed by state law or that set forth
in Rule 4(d)(1)
• Reasoning: service should be in the manner prescribed by FRCP rather than by
state law, so it didn’t have to be by hand as Mass. State law requires. Erie does not apply here; it
only applied to substantive law, not procedural law.
• Concurrence (Harlan): should decide whether to apply state or federal rules by
asking whether the rule would effect decisions of human conduct that the state is trying to
regulate. Court misconceived constitutional premises of Erie and failed to deal with past decisions.

Michigan v. Long, 1983

• Police found marijuana in Long’s car, and searched passenger compartment
because they had reason to believe there were weapons.
• Issue: does the decision in Terry v. Ohio, which upheld the validity of a protective
search for weapons in absence of probable cause to arrest, apply?
• Reasoning (O’Connor): search during the lawful investigatory stop was legal. Sate
courts have authority to decide how their common law is applied, and authority to define their
constitutional law. As long as constitutional law does not go below ceiling set by federal court,
you can get more rights than the federal court would give you.
• Dissent (Brennan, joined by Marshall)
• Concurrence (Blackmun): we shouldn’t assume there is jurisdiction, even though
there is in this case.
• Dissent (Stevens): there should be some sort of judicial restraint. The court
shouldn’t spend too much energy in making sure citizens are protected enough.

Personal Jurisdiction
World-Wide Volkswagen Corp. (a wholesaler) v. Woodson (long arm statute and
minimum contacts)
• Robinsons bought car from NY dealer and are NY citizens, who got into accident
in Oklahoma where car caught fire. The bring suit in OK.
• Issue: can the OK court bring the dealership and others into OK jurisdiction by the
long arm statute to participate in the suit?
• Reasoning: for a court to decide the case, it has to have subject-matter jurisdiction
over the matter before it: either federal question or diversity. You also have to have personal
 jurisdiction over the parties. Volkswagen objects to lack of personal jurisdiction, saying that they
do not have minimum contacts with OK, since they only deal in New York area.
• If Volkswagen had specifically solicited the sale to an OK citizen, the
sufficient minimum contacts might have been arguable.
• Subsequently: they brought case against VW the main, German company;
had diversity of citizenship and could bring case in either OK or federal court, because the
big VW company did sell to retailers in OK
• Dissents: in a global economy, it is foreseeable that vehicles will travel
everywhere, so you have to be ready for litigation everywhere. Personal and commercial contact
should be enough for jurisdiction.

Burnham v. Superior Court of California

• Couple agrees to divorce, but then husband changes grounds; he visits California
where wife is for business reasons and is served.
• Issue: If a D is served process within a state’s borders, does due process require
that D have sufficient contacts within that state?
• Reasoning (Scalia): A state may assert personal jurisdiction over persons
physically located in its territory regardless of the relationship between the physical presence and
the litigation. Because the rule is a long-standing tradition of serving people who are physically
present in a state, regardless of minimum contacts, it must be acceptable.
• Concurrence (White): Should apply rule in cases where presence in the forum
State is intentional, otherwise, there would be endless, fact-specific litigation in the trial and
appellate courts.
• Concurrence (Brennan): court should also consider contemporary due process and
supply reasonableness standard to all cases. The fact that physical presence has been sufficient for
personal jurisdiction for so long means that someone who goes to California has “clear notice”
that they can be served process there. Brennan believes minimum contacts texts should be applied
in a way tolerant to allowing state courts to exercise jurisdiction.

Constitutional Limits on Choice of Law

• States will tend to use their own law when possible.
• Courts will prefer to not police choice of law decision unless clear reason to.
• Choice of law may not interfere with Due Process.
• Like personal jurisdiction, there must be a basis for the application
of a state’s laws that relates to minimum contacts.

Allstate Insurance Co. v. Hague, 1981

• P’s husband dies in car crash in WI, by another WI driver, and he is a resident of
WI. Husband worked in MN for 15 years and commuted from WI to MN daily. P moves to MN
 before initiating lawsuit and is put in charge of his estate and wants to claim auto insurance on all
three of his cars (stacking). This can’t be done in WI but can in MN, so she brings suit in MN.
• Issue: Did the MN SC violate the Due Process Clause and the Full Faith and
Credit clause by choosing to apply MN law? H: No
• Reasoning (Brennan): Choice of law not a violation of FFC and DP when there are
sufficient contacts between the states and the parties
• P’s husband worked in MN and commuted there daily. All state did
business in MN and MN has an interest in regulating that business. P moved to MN before
litigation, so doesn’t look like forum shopping
These contacts were sufficient, so no violations. Can’t tell MN they interpreted MN law
incorrectly, they have to accept it. Can only judge whether MN’s choice of law was a violation of
FFC and DP.
• Concurrence (Stevens): Agrees that there was no violation, and this is all the court
has jurisdiction to rule on, but thinks court should have looked separately at possible violations of
both FFC and DP, not together like they did
• FFC: MN should not have applied its law, but the FFC should not invalidate
the choice unless it threatens the fed interest in national unity by infringing on the other
states. FFC: lot of leeway, the standard should be whether MN is threatening sovereignty
of WI-none here
• DP: nothing was unfair about this choice of law; Allstate’s expectations
were not frustrated. DP: no violation because MN has an admin interest in applying its
own law and nothing was unfair to Allstate
• Dissent (Powell): Thinks the contacts the court relies on are trivial and not
substantive. MN doesn’t really have an interest here, can’t be so lenient. US SC should be stricter
when it comes to reviewing these kinds of decisions.
• Ways to define authority: where incident occurred, where parties from, where
victim worked, where case was brought, state interest, etc.

Baker v. General Motors Corporation

• Expert tries to testify in car accident suit in MO, had injunction against testifying in
cases w/ company in MI, unless parties force him to.
• Issue: Can Elwell testify, or does the injunction bar him from doing so?
• Reasoning (Ginsburg): injunction barring former employee from testifying as
witness against car manufacturer, which was entered by Michigan county court pursuant to parties'
stipulation in employee's wrongful discharge action against manufacturer, did not reach beyond
controversy between employee and manufacturer to control proceedings elsewhere, and thus,
employee could testify in Missouri products liability action brought against manufacturer without
offense to full faith and credit clause. Full faith and credit does not require states to adopt other
state's practices regarding time, manner, and mechanisms for enforcing judgments.
 • Concurrence (Scalia): what GM is trying to do is use an enforcement mechanism,
and that doesn’t travel. Enforcement mechanism only enforceable in state. Because full faith and
credit basically requires MO to execute injunction, he concurs.
• Concurrence (Kennedy): majority goes too far (1) allows courts outside state to
decline to enforce injunction, doing what Michigan would be doing (2) Full faith and Credit
doesn’t cover injunction over which ordering state had no authority. Here you don’t have the same
parties as injunction case, so no res judicata. Therefore, MI wouldn’t apply that principle here, so
there’s no question MO isn’t obligated to apply the same principle. Majority’s analysis is
unnecessary, settlement would allow him to testify when ordered. Even MI courts would have
allowed this. GM can’t force something on MO court that even MI court wouldn’t have allowed.
• Full Faith and Credit: judgment in one state must be respected in another state,
must be followed. Another state does not have to follow enforcement mechanisms [would have to
take it back to the first court.]

Santa Clara Pueblo v. Martinez

• Martinez’s children are not recognized as members of the tribe because their father
is a Navajo. Martinez unhappy with this but Pueblo Council refuses to change rule, even though a
male’s children can inherit if their mother is from a different tribe.
• Issue: Does the Federal Constitution apply to Indian Law? Can a Federal court
place an injunction on a motion of a tribal court? H: Not unless the motion is egregious enough.
• Analysis: Indian Civil Rights Act does not allow declaratory or injunctive relief in
federal courts. Only Congress could modify the sovereignty granted to Indian tribes. Congress had
not done so either by the express terms of the Act or by implication when it provided the single
remedy of habeas corpus. Rights were violated here, but not egregious enough to warrant stepping
on the ICRA.
• Dissent (White): if you give people rights, you should give them opportunity to
enforce those rights.
Complex Litigation
• Complex litigation: cases that proceed over several years and can be messy in
nature

School Desegregation
Hart v. School Board of Brooklyn
Hart v. School Board of Brooklyn: (Hart I)
• Racial balance of the Mark Twain student body changed drastically. Due to
attrition rate of white students during the ten years caused at least in part by the school district’s
feeder patterns and zoning white middle-class children out of the school (state/federal)
• Issue: Did the school board and housing authority create an unconstitutionally
segregated situation at the school? H: Yes, and there are steps that need to be taken to remedy the
situation.
 • Reasoning: The segregated schools discourage middle class whites from moving
into the area and the segregated housing patterns lead to segregated schools. Once it has been
established that racially segregated schooling exists, it must then be shown, in order to make out a
constitutional violation, that this segregation was caused or brought about by state action, or
inaction. Judges add several Ds in order to effectuate broad change in the system that created de
facto segregation over decades.
• Special master: Rule 53 permits district courts in non-jury cases to name special
masters in any action upon a showing that some exceptional condition requires it. The rule is
broad enough to allow appointment of expert advisors.
• A special master must be appointed to:
• Coordinate and evaluate remedial proposals of defendants and
others.
• Serve an investigatory and consultative function among the parties.
• Advise the court so an effective remedial order may be approved.
• Bridge the gap between court and advocates.
• Shall formulate a “joint plan” and gain the parties’ consent.
Hart v. School Board of Brooklyn: (Hart II)
• Sets up three plans: D (magnet school), Special master (magnet school variant),
plaintiffs plan (essentially same race ratio). Orders monthly meetings, retains jurisdiction, no stay
will be granted by this court during pendency of any appeal. This constitutes a final judgment by
the court. Chooses a more limited plan; while judges may use opportunity for broad initiative, they
cannot order remedies roader than the problem sought to be solved.
• Injunctions: Rule 65.
• 65(a) Preliminary Injunction – Stays in place until the case is decided.
• 65(b) Temporary Restraining Order – Limited in duration because it is
issued without written or oral notice to the adverse party. Issued for a limited period of
time, max time = 10 days. After that, judge has option to grant 1 extension, and then it’s
over.
Hart v. School Board of Brooklyn: (Hart III)
• Appeal from Hart II by P; three objections: (1) extension of time to plan (2) DC
plan unconstitutional and racially biased (3) magnet school plan not segregation remedy.
• Reasoning: recommend to the DC to withdraw decision to “moot” third-party
action and dismiss it, calling on city, state, and federal officials for help. Enough has been shown
of intentional state action and inaction through the school board to support a finding of segregative
intent from the foreseeable consequences of action taken, coupled with inaction.

Missouri v. Jenkins
• Ongoing school segregation case.
 • Issue: 1. Whether district court exceeded constitutional authority when it granted
salary increases to virtually all school district employees, and 2. Whether court incorrectly
determined that state hadn’t achieved partial unity based on test scores.
• Reasoning: the lower court felt that intradistrict remedies for intradistrict
violations wasn’t enough, and that interdistrict remedies were needed. They exceeded their
authority, and shouldn’t have gone outside the district; court shouldn’t exceed scope of authority.
• Concurrence (O’Connor): the court exceeded its constitutional bounds to make
remedies when it was making improvements to schools that weren’t segregated. Problems of
“human existence” are for the legislature to solve, not the judicial branch. Racial imbalance does
not allow judicial intervention absent constitutional violation.
• Concurrence (Thomas): stop assuming that blacks schools are inferior. As long as
there is no de jure segregation, then stop. Courts have gone to far with remedial powers, and
trampled over federalism and separation of powers, and local government authority over school
system. Court should only solve problems that violate the constitution
• Dissent (Souter; Stevens, Ginsburg, Breyer): salary increases are part of ending
segregation and should be allowed. No issue of intra/inter state measures. An intra-district
violation can have inter-district consequences and therefore an inter-district remedy. A broad
remedial power is therefore required for the judge to rectify the situation.
• Dissent (Ginsburg): segregation is entrenched and it is too soon to stop efforts to
end it

Prison Litigation
Hutto v. Finney
• Punitive isolation case: small rooms, no food, no beds, no working toilet, etc.
• Issue: Was it within the District Court’s remedial powers to issue an order
regulating “punitive isolation” by creating a 30-day limitation on sentences?
• Reasoning: Yes: District Court had amply authority to go beyond earlier orders
and to address each element contributing to constitutional violation. District Court had authority
because court had given Department repeated opportunities to correct the conditions that caused
constitutional violations. The court can issue specific orders to remedy an issue if necessary to
effectuate the change, and within the scope of the problem.
• Dissent (Rehnquist): District Court order limiting the maximum isolation does not
relate to anything in the Constitution; the fact that there has been unsatisfactory performance in the
past should not be used to make unwarranted decisions in the present. The court needs to defer to
the state.

Rufo v. Inmates of the Suffolk County Jail

• Pre-trial inmates being held with convicted inmates. Trial court issues an
injunction, and when conditions don’t improve, the court issues a consent decree incorporating a
new facility to be built. P sheriff wants to modify decree; denied.
 • Consent decree: decision by a judge to enforce decision by the parties
• Issue: Did courts apply the correct standard in denying the sheriff’s motion for
modification of the consent decree? Should decree be treated same as a judgment?
• Reasoning: Modifications to court ordered remedies must be suitable to whatever
significant changes in fact or law necessitate them. District Court incorrectly held that Rule 60(b)
codified grievous wrong standard; not intended to apply to all efforts to modify dissent decrees,
should only apply when there are constant facts; when there are fluid facts, as here, remedy can be
adjusted.
• Concurrence (O’Connor): District Court took too narrow a view of its own
discretion; in modifying final judgment, court must determine what is equitable. Case should be
remanded so that the District Court can exercise the full measure of its discretion; shouldn’t
second guess lower courts in this difficult case.
• Dissent (Stevens): have to defer to what trial court was doing; sometimes, radical
measures are needed. Decree only has to be constitutional; the fact that the consent decree may go
beyond what is constitutionally required is fine. Have to give judges authority to deal with these
complex litigations. The parties could have foreseen the prison population would grows; should
have done this right the first time, changing really isn’t ok.

Estelle v. Justice
• While complex litigation may involve the interests of many parties, an intervenor
must have a claim entailing some common law or fact.
• Sua sponta: without hearing a case; judge just issues an order
• Inmates bring a complaint about prison conditions. It’s too late for intervention, but
court allows amicus curiae (friend of the court) and government intervenes. Estelle files for and is
denied interlocutory appeal and mandamus relief. Certiorari is denied.
• Writ of Mandamus
• This is to order a judge/ political official to stop what he’s doing
• Asked of a higher court to grant over a lower court
• Reserved for extreme situations, and grave usurpations of power
• Dissent (Rehnquist): Writ of mandamus is limited to extraordinary cases, and this
is such a case. The judge let in the US as a third party; government shouldn’t have been allowed to
intervene, so case should be heard to see if judge overstepped bounds.
Arbitration En Lieu of Adjudication: Alternatives
• Forms of Dispute Resolution:
• Negotiation: Face to face conversations between the parties in an effort to
find a solution to the problem.
• Mediation: A third-party is involved in the conversations in order to aid the parties
in coming to a conclusion; however, the results typically are not binding.
 • Arbitration: A third-party listens to arguments on both sides, similarly to
adjudication, and makes a binding decision for the parties.
• Court have been weary of the effect of judicial power in arbitration, but
have been warming to it, without relinquishing the power to be able to oversee its
appropriateness.

Alexander v. Gardner-Denver
• P was fired, and filed a grievance based on a collective bargaining agreement
between his company and his union, claiming that he was unjustly discharged based on race. The
procedure was that you have to negotiate, and then go to arbitration if necessary.
• Issue: Can an employee’s right to a trial under Title VII be foreclosed by a prior
submission of his claim to final arbitration under the nondiscrimination clause of a collective
bargaining agreement?
• Reasoning: no, federal court should consider the employee’s claim de novo, and
the arbitral decision may be admitted as evidence and accorded such weight as the court deems
appropriate. Title VII’s purpose and procedures strongly suggest that an individual does not
forfeit his private cause of action if he first pursues his grievance to final arbitration. Submission
of an employee’s grievance to arbitration does not alter fact that employee cannot waive rights
under Title VII in the collective-bargaining process. Arbitral procedures are an inappropriate
forum for the final resolution of rights created by Title VII
• Arbitration: Court not involved. Find a third party (non-judge) and have both
sides agree to be bound by decision of arbiter.
• Negotiation: Bring parties together to work something out, no third party.
• Mediation: Third party, but decision is determined by parties, not mediator. The
negotiations are voluntary, and parties cannot be forced to sign agreement

Gilmer v. Interstate/Johnson Lane Corp.

• P hired by D; application requires him to agree to arbitrate any disputes, including
termination. D fires P (P was 62).
• Issue: Can an age discrimination claim be subjected to compulsory arbitration
pursuant to an arbitration agreement in a securities registration application?
• Reasoning: Statutory claims may be arbitrated unless it can be shown that congress
intended a right not to be subject to arbitration. P bears the burden to prove that Congress intends
to prevent waiver of claim through an arbitration clause. Gilmer couldn’t show that congress
intended his AEDA claim not to be subject to otherwise sufficient arbitration.
• Dissent (Stevens and Marshall): just because agreement with employer arose out of
an application rather than a specific K, he shouldn’t be prevented from arbitration. We need to
decide whether the agreement in this case should be excluded based on FAA. This result precludes
Gilmer from bringing a class act he otherwise could bring.

Wright v. Universal Maritime Service

 • P, a longshoreman and union member, becomes disabled and gets benefits. Tries to
go back to work and is denied (don’t take disabled people), so files an ADA claim.
• Issue: Can a general arbitration clause in CBA require employee to use arbitration
procedure for an alleged violation of the Americans with Disabilities Act?
• Reasoning: Collective Barg. Agr. does not contain clear and unmistakable waiver
of rights to claim under statute. CBA does not meet standard that any union-negotiated CBA
requirement to arbitrate a statutory claim be clear and unmistakable. CBA here does not meet
standard: No clause in the CBA can be considered a clear and unmistakable incorporation of
employment-discrimination laws

Green Tree Financial Corp. v. Randolph

• Randolph buys mobile home and gets financing through Green Tree, which has an
insurance policy to protect themselves from charges if they have to repossess something.
Randolph sues as class for failure to disclose insurance requirement, as well as for requiring
arbitration on her claims.
• Issue: (1) Is an order compelling arbitration and dismissing a party’s underlying
claims the “final decision with respect to arbitration” within FAA, and therefore appealable? (2) Is
an arbitration agreement that does not mention arbitration costs and fees unenforceable?
• Reasoning: (1) Appealability: Where DC has ordered the parties to proceed to
arbitration, and dismissed all the claims before it, that decision is final and appealable. (2)
Acceptability of arbitration clause: Arbitration agreement’s silence with respect to arbitration costs
and fees does not render the agreement unenforceable. SC has recognized that federal statutory
claims can be appropriately resolved through arbitration, and has enforced agreements to arbitrate
that involve such claims. Record does not show that she will bear prohibitive costs. The record
only shows that the arbitration agreement is silent on the subject. To invalidate the arbitration
agreement on the basis that prohibitive costs basis would undermine federal policy favoring
arbitration agreements and relieve P of her burden of proof.
• Concurrence/Dissent (Ginsberg, Stevens and Souter, Breyer in I and II): would
remand for further proceedings. It makes sense to send this back to DC to see if arbitration costs
would be reasonable, and handle this now before it gets further through proceedings.

Circuit City Stores Inc. v. Adams

• P signed an employment application for a job at D, which included a dispute
resolution provision: all disputes between P and D arising of out employment would be settled
exclusively by final and binding arbitration. D
• Issue: does the FAA apply to employment contracts?
• Reasoning: § 1 FAA excludes from the Act’s coverage contracts of employment of
seamen, railroad employees, or any other class of workers engaged in foreign or interstate
commerce. This suggests that § 1 exempts from the FAA only contracts of employment of
transportation workers. The application of the rule ejusdem generis is in agreement with other
consideration bearing on the interpretation of language in §1. Would be pointless to include
narrower category if you are going to include broader category.
 • Dissent (Stevens with Ginsberg and Breyer, Souter in Parts II and III): The statute
was meant to eliminate bias against arbitration, but not to take an aggressive stance in favor, which
is what the majority has made it.
• Dissent (Souter with Stevens, Ginsberg and Breyer): theory of interpretation is not
applicable to the case at bar; there was intention by the government to exclude all workers, not just
an odd category.
Discovery

The Rule and the Exception

Hickman v. Taylor
• Boat sinks, owners hire firm to handle claim. Lawyer (P) interviews survivors,
other side files interrogatory asking for those notes, P claims privilege.
• Issue: Can procedural devices created by the deposition-discovery rules (26-37) be
used to inquire into materials collected by adverse party’s counsel in preparation for possible
litigation? Not here!
• Reasoning: Lawyers need a certain degree of privacy. Where relevant and non-
privileged facts remain hidden in an attorney’s file and where production of those facts is essential
to the preparation of one’s case, discovery may properly be had (not the case here).
• Work product rule: materials put together in anticipation of litigation have
special protection. You have to show special need.
• General rule: wide discovery; generally, you can access information that is
relevant.
• Test: HEAVY BURDEN TO GET WP: (1) substantial need for info (2)
cannot access through other means.
• Mental impressions are not discoverable, lawyer will remove them from
WP
• Concurrence (Jackson): concerned that if the Court had ruled for the petitioner,
attorneys could be called to testify at trial to say what they were told by witnesses, and that this
would be bad for the profession. Emphasizes adversarial nature of proceedings. More forceful.

Rule 26: Discovery Scope and Limits

• (b) Discovery Scope and Limits
• You can discover any matters that are relevant, any matter not privileged. If
you don’t cough it up, judge can force you to. There may be an exception for stuff to be
discovered that is not evidence if it may lead to something that is.
• (c) Gives court broad power to regulate or prevent discovery

Rule 34: Producing Documents

A) Within the scope of Rule 26, a party may request another party to:
1) Produce and permit inspection of:
Documents, electronic info
Designated tangible things
2) Permit entry to land or property to inspect, measure, etc
B) Parties must produce documents kept in the usual course of business, produce requested information in
the form it is ordinarily maintained, and need not produce the same electronically stored into in more than
one form
C) Nonparties may be compelled to produce documents or items for inspection

Upjohn v. United States

• P discovers foreign subsidiaries paid off governments to secure sales, sends out
questionnaire to employees to determine nature/scope and informs IRS. IRS wants questionnaires,
P says they are protected by attorney-client privilege and is work product of lawyers.
• Issue: What is the scope of the attorney-client privilege in the corporate context
and the applicability of the work-product doctrine?
• Reasoning: Government may not subpoena the notes/memoranda based on any
interviews with the employees, or the questionnaires. Rule 26 permits disclosure of documents and
tangible things constituting attorney work product upon showing of substantial need and inability
to obtain the equivalent without undue hardship. D could interview employees if desired; would be
more convenient to get forms, convenience does not outweigh policies served by privilege
doctrine.
• Concurrence (Burger): Proposes a rule that communications between employee
and attorney should be protected by privilege when the employees are directed to do so by the
direction of management.

Abuse of Discovery
• Discovery has some risk of damaging the adversarial system
• There are risks of discovery being used strategically outside congressional
intentions

Rule 26
• Parties must confer to consider basis of claims, defenses, and possible settlements
as soon as practicable
• Things that should be signed: disclosures, discovery requests, responses, objections
• Forces attorneys to certify their disclosures as good faith and believed to be
legitimate

National Hockey League v. Metropolitan Hockey Club, Inc.

Per curiam decision: you don’t have a full hearing, not a full decision, just a brief order or decision
issued on behalf of the whole court
Respondent’s antitrust action against petitioners for failure to timely answer written interrogatories was
dismissed under Rule 37
Factual history of the discovery proceedings:
Interrogatories remained unanswered after 17 months
P demonstrates callous disregard of responsibilities to the court
This action was taken in face of warnings that their failure to provide info would result in sanctions under
rule 37
Court of appeals reversed the dismissal; DC had abused its discretion
There was insufficient evidence to support a finding that failure to file answers was in flagrant bad faith,
willful or intentional
Issue: whether the district court abused discretion in dismissing the case
Holding: The DC’s dismissal of the case was appropriate; court of appeals decision reversed. Record
shows that the District Court was patient in allowing respondents time to comply with discovery orders,
and yet the responses they ultimately did file were grossly inadequate. Sanctions aren’t only meant to
penalize, but also deter future bad actions. Attorneys need to follow rules as well.

Cheney v. United States District Court for the District of Columbia

• Bush creates group to develop energy policy; comprised of agency heads/assistants,
chaired by P. After report, Judicial Watch and Sierra Club allege that they failed to meet
requirements of Federal Advisory Committee Act, and that group had de facto non-government
members who fully participated. J.W. and S.C. have broad discovery requests for the documents
related to the committee. P is denied interlocutory review as well as writ of mandamus.
• Issue: Whether the court of appeals correctly concluded that it had no authority to
exercise mandamus, on the ground that the government can protect its rights by asserting
executive privilege. Does FACA authorize judicial review of executive branch deliberations
through a broad discovery process that allows a private organization to review internal documents
of high-level advisors to the President, and does this violate the Constitutional doctrine of
separation of powers?
• Reasoning (Kennedy): SC remands to Appeals: should consider separation of
powers claims. This is not like the Nixon case, where discovery was allowed in narrow scope,
because that was criminal case and this is civil. There are no checks in the discovery process
requested here, and constitutional values are at stake.
• Concurrence (Stevens): broad discovery should be encouraged when it facilitates
prompt resolution of concrete disputes, but in some circumstances, the requesting party should
bear a heavy burden of persuasion before discovery is allowed.
• Dissent (Ginsberg and Souter): DC did not ignore separation of powers issues.
Confident that were it moved to do so DC would protect petitioners’ legitimate interests and keep
 discovery within appropriate limits. Should have been discovery, but request over-broad.
Executive privilege shouldn’t do away with discovery, but should limit it.
• Concurrence and dissent in part (Thomas): sides strongly with government,
should be remanded and enforce government’s requests
Pre-Trial Termination
• Motion to Dismiss: usually is filed under Rule 12(b) or (c) and comes after the
pleadings; if everything is true, there is no case here, so no need to proceed.
• Lack of jurisdiction- 12b2
• Failure to join necessary party- 12b7
• Failure to state a claim- 12b6
• Taken on face value there is no case, even if all this is true,
so what?
• Plaintiff: can also get this – Motion of the Basis of the Pleadings.
• Notice pleading- just put them on notice, complaint can be general and later
on you can fill out the details
• A claim that is too general can be thrown out on 12b6
• Failure to state a claim means not giving enough notice, if
dismissed without prejudice then can bring case again-could file a motion to
allow to amend, would save time and money
• Motion for Summary Judgment: granted when there is no genuine issue of
material fact. (Rule 56)

Conley v. Gibson
• 45 black workers’ jobs were abolished, and whites replaced them or rehired the
blacks but in a way that they lost their seniority. Union does nothing; black workers sue.
• Issue: Can P suit be dismissed under any of the following arguments made by D:
(1) the NRAB had exclusive jurisdiction over the controversy; (2) the Texas and New Orleans
Railroad, which had not been joined, was an indispensable party defendant; and (3) the complaint
failed to state a claim upon which relief could be given?
• Reasoning: (1) NRAB applies only to disputes between an employee or group of
employees and a carrier or carriers. This case is brought by employers vs. their union to enforce a
statutory right, so there is lack of jurisdiction. (2) Not a suit vs. the railroad: no relief is asked from
it and there is no prospect that any will or can be granted which will bind it. (3) Complaint sets
forth a claim upon which relief could be granted: If the P allegations true, has been a manifest
breach of the union’s statutory duty
• Underscores basic fact about pleading system: Don’t have to spell out entire
allegation, only have to spell out enough to put someone on notice. The complaint is very general,
but the court should allow the P to build the case rather than dismiss it.
Adickes v. Kress
• P and 6 black students go to library, kicked out by police. Go to restaurant, P
refused service and arrested. Accuses D of conspiracy to: (1) deprive her of equal treatment (2)
cause her arrest on false charge of vagrancy.
• Issue: Were lower courts correct in giving the respondents a directed verdict on one
count, and summary judgment on the other?
• Reasoning: The jury should see the case. Count (1) should be broadly construed; if
it was a custom of the community, it doesn’t have to be specifically enforced by law. It’s enough
that there was a law that encouraged racial discrimination. Court (2) court rules that the person
who committed the act doesn’t have to have permission to do it; as long as they were an agent of
the state, it counted.
• Concurrence/Dissent (Brennan): with regard to a “state-enforced custom,” Court
used wrong meaning. It doesn’t mean that custom can acquire the force of law only “by virtue of
the persistent practices of state officials,” it means of the people of a State, not state officials.
Should take issue away from jury where there is clear evidence that it should be taken away.
• Concurrence (Black): there is a genuine issue of fact, and they must be considered
by a jury
• Dissenting in Part (Douglas): should enforce Congress’s law and end racial
discrimination

Celotex Corp. v. Catrett

Wrongful death suit brought by wife of decedent, Ms. Catrett, whose husband died due to asbestos
exposure. Celotex moves for summary judgment, claiming that D was unable to produce evidence that
there was exposure by decedent.
Issue: can summary judgment be granted?
Reasoning: If documents presented do not show genuine issues of material fact, summary judgment
should be granted. Here, there was insufficient evidence that there was a case. Appeals court might have
felt constrained by Addickes case, but erred in not granting summary judgment here. If you are
confronted with a motion of summary judgment, you’re supposed to provide the court with something
that will make them not dismiss the case. Don’t have to prove your whole case, just have to give enough
for it to not be dismissed
Dissent (Brennan): The court isn’t clear enough as to what the standards should be in proving whether
there is a case or not. Doesn’t believe that Celotex meets burden of proof, which is required for summary
judgment
Distinction between burden of production and burden of persuasion
Persuasion – concept that tells you that one of the parties is going to have to convince the court that what
it is alleging is more likely than not
If she meets burden of persuasion, she has to meet burden of production under summary judgment with
credible evidence. If she does not bear burden of persuasion, she may either submit evidence or show that
her opponent’s evidence is insufficient
Decision Makers

Judges and Juries

United States v. Will
• Congress blocked cost-of-living increases for judges that were provided by statute.
• Issue: Can Congress repeal or modify a statutorily defined formula for annual cost-
of-living increases for judges, and, if so, whether it must act before the particular increases take
effect. Also can judges hear this case despite apparent personal interest?
• Reasoning: DC (actions) and SC (appeals) have jurisdiction. Disqualification not
required (Rule of Necessity). Congress could not eliminate pay increases after it was to take effect.
Since all judges have interest, not possible to assign a substitute judge or for the CJ to remit to
Appeals with judges who are not subject to the disqualification provisions of 28 USC 455. Thus
the Rule of Necessity requires SC to take the case, since otherwise no one would be able to
adjudicate the case. Compensation Clause (under which judges are paid) not designed to benefit
judges as individuals, but the public interest in an independent judiciary. Therefore judges could
hear case despite apparent personal interest. Public interest not be served by requiring
disqualification under 28 USC 455.

Teamsters v. Terry
• Truck drivers are upset about being laid of, and they go to the union, who fights the
employer. Employer wants to hire drivers back with seniority rights, but they’re laid off again.
Drivers bring a suit, but employer goes broke in the meanwhile so action is dismissed. P requests a
jury trial, but the union doesn’t want one; jury would sympathize with P.
• Issue: does P have a right to a jury trial?
• Reasoning: action by an employee for a breach of a labor union’s duty of fair
representation entitles him to a jury trial under the Seventh Amendment. Since the nature of the
requested remedy (back pay) was legal, then P gets jury trial. P’s action had equitable and legal
issues, but since relief sought was not restitution, it wasn’t equitable (back pay not being held by
union, but wages they should have received). The right to a jury trial depended more on the nature
of the issues to be tried. Although there was a fiduciary duty issue between the plaintiffs and the
union, there was also an underlying breach of contract. Then turned to the type of relief the
plaintiffs sought. The only remaining remedy the plaintiffs sought against the union was
compensatory damages, which are the traditional legal remedy. Due to balance of the issues, jury
trial allowed.
• Concurrence (Brennan): Simplify the test for determining a plaintiff’s Seventh
Amendment rights. Specifically, it was unnecessary to examine the nature of the action itself, but
rather to simply examine the type of relief requested by the plaintiff.
 • Concurrence (Stevens): SC attempt to find 18th-century common law analogy to
the collective-bargaining and fair representation actions in this case was misguided historical
judgment, and type of relief sought by the P was the relevant issue: fine to have a jury.
• Dissent (Kennedy): we have to look back to what the Constitution meant when the
amendment was adopted; remedy should be more restitution.

Impaneling the Jury

• Venire: the list from which the petit jury can be formed.

Batson v. Kentucky
• Issue: is striking the jury on basis of race constitutional or not?
• Reasoning: if you think peremptory challenges are being abused, you can
challenge it by saying there is a prima facie case of discrimination – the prosecutor doesn’t have to
say why they preempted a juror, they just have to prove that there are valid reasons other than race
they could have relied on. D has burden to prove the state’s explanation is just a pretext.
• TEST FOR RACISM HERE:
• D must develop a prima facie case- create a presumption that the
peremptory challenges are used to exclude on basis of racism
• Prosecutor can rebut the presumption of the prima facie case
• Needs to formulate a plausible, non-discriminatory reason for
getting rid of the jurors
• Pretextual: D can then say oh come on, P’s claim is bull shit (if you use P’s
standard, then you will therefore exclude all members of something. Like oh I don’t want
anyone from this part of town [where all the Latinos live.] This is an indirect way of
getting rid of Latinos on the jury. D can rebut this bull shit)
• Concurrence (White): expressing the view (1) that a prosecutor's use of
peremptory challenges in a particular case to strike blacks from the petit jury panel in the trial of a
black defendant is a proper subject for constitutional inquiry, and may raise an inference, which
the prosecutor bears the burden of refuting, that such actions were based on the belief that no black
citizen can fairly try a black defendant; but (2) that this decision should not be applied
retroactively.
• Concurrence (Marshall): goes further, eliminate peremptory challenge altogether
in order to eliminate discrimination
• Dissent (Burger): has reverence for history or peremptory challenge. State interest
is that peremptory challenges increase overall impartiality.
• Dissent (Rehnquist): no violation of EP as long as every race is equally
discriminated against.

J.E.B. v. Alabama
 • In a case of paternity and child support, peremptory strikes were used to remove all
the male jurors, resulting in a female jury that found for P.
• Issue: whether EPC can be extended to gender.
• Reasoning: gender-based challenges are the very stereotype the law condemns.
EPC does extend to gender discrimination in peremptory challenges.
• Concurrence (O’Connor): decision should be limited to government use of strikes
but not apply to private parties. Although people may be biased on gender or race, they may also
be justified in their choices to preempt certain witnesses
• Concurrence (Kennedy): EP does prohibit gender-based discrimination here, but it
is concerned with individuals, not groups, so stay away from granting group rights.
• Dissent (Rehnquist): Sufficient differences between race and gender that Batson
should not be extending to include this situation. Use of peremptory challenges on the basis of sex
is generally not the sort of derogatory and invidious act which peremptory challenges directed at
black jurors may be.
• Dissent (Stevens with Thomas and Rehnquist): SC imperils essential part of fair
jury trial. This is a case of harmless error if there ever was one; a retrial will do nothing but divert
the State’s judicial and prosecutorial resources.
• Dissent (Scalia): Gender strikes should be allowed because there are real
differences on how different genders approach different subjects, and can be a good indication on
some issues. D has no standing because he had no injury (can’t sue on behalf of the male jurors
that were struck).

Assessing the Evidence

Kumho Tire Company, Ltd. V. Carmichael
• Carmichael brings suit against Tire for wrongfully manufactured tire that caused
death. This is a diversity suit, so federal court. Deposition of tire expert concludes that it was
wrongly manufactured. Tire moves to disqualify expert from testifying on grounds that his
methodology failed the reliability requirement under Rule 702 of evidence.
• Issue: Does the Daubert rule apply to this case, since it is technical testimony based
on experience? Is it appropriate to exclude the tire expert’s evidence as unreliable?
• Majority: Daubert case applies to technical testimony, not just scientific
testimony. Broad discretion by trial judge to determine how the test applies to an expert’s
reliability. The testimony of the tire expert is unreliable because of the methodology here.
• Concurrence (Scalia): court has discretion to applying the test in an appropriate
way, but does not have discretion not to apply the test adequately. This test is very important to
keep bogus science out (like bringing in a psychic). Important for judges to keep this out so they
don’t taint the trial. Some judges believe that jurors can’t understand this information and the
jurors will be overwhelmed. This role of preventing bad testimony is meant to limit this.
 • Concurrence/Dissent (Stevens): agrees that test should apply to technical
testimony, but thinks that petition for cert did not raise question of whether trial judge abused
discretion and should be remanded to court of appeals

Punitive Damages
Silkwood v. Kerr-McGee Corp.
• P suffered plutonium contamination at work, and action is brought for injury,
radiation damages to her house, and punitive damages. Diversity case: would normally be seen by
OK state court under OK law, but citizenship of parties is different, so federal court will apply
state law. A federal statute that precludes the states from replacing it with their own laws regulates
nuclear energy.
• Issue: Is there a conflict between federal and state law?
• Reasoning (White): D is saying state is trying to regulate company even though
Federal government has Agency that is the only one who can do this and state should be precluded
from awarding damages. Majority says that federal law does not preempt punitive damages here.
Even though exhaustive Fed Agency to regulate, this does not preclude. Congress meant to
preclude regulation by states, but not awarding of damages by states.
• Dissent (Blackmun): punitive damages do have a regulatory effect; they promote
extra caution by the plant. It is not inconsistent to allow compensatory damages, because this
simply allows individuals to get reparation, but not to change the scheme as it exists.
• Dissent (Powell): punitive damages are regulatory in nature. Uninformed decision
makers, like juries, shouldn’t have the power to affect this kind of regulation. Takes issue with
jury instructions; they were able to infer damages without being malicious or wanton. Punitive
damages bear no relation to actual damages.

BMW of North America, Inc. v. Gore

• Alabama BMX dealer sold Gore a new car, which he realized had been repainted.
They have done this 900 times, so he brings class action of $4 million punitive damages, claiming
that the repainting made car drop value by $4000. Court dropped damages to $2 million.
• Issue: Is $2 million in damages in excess of constitutional limit? Yes; this award is
grossly excessive.
• Reasoning (Stevens): not all states protect from deceptive trade practices, so
reasonable people might disagree as to whether punitive damages are OK or not.
• Degree of Reprehensibility: what they did was not THAT bad and it only
caused economic damage. They didn’t lie, they just didn’t make certain information
available.
• Ratio of harm to awarded damages, no fine line here but on its face its out
of whack
• Sanctions for comparable misconduct:
 • Don’t want to put too much burden on corporations because it will
deter them from doing economic dealings in that state
• BMW had no notice of this high penalty, AL state sets limits of $2
K for fraud, more modest penalty would have same deterrence effect
• Concurrence (Breyer): You generally have to defer to the court below, but if you
don’t have standards, there is no point to deferring. Here, the law did not provide sufficient
standards.
• Dissent (Scalia): The state decision to impose punitive damages is all the process
that’s due. SC decision doesn’t provide guidance as to what the constitutionally appropriate level
of damages might be. SC will get in the habit of assessing state court punitive damages.
• Dissent (Ginsburg): Alabama court reasonably took what US Supreme Court said
in other cases. It’s inappropriate for the court to review the size of the award.
Attorney’s Fees

Rule 68
You reject a settlement offer and the case continues. If you prevail, but get a settlement less than the offer,
you can request attorney’s fees up to the point at which you rejected the offer.

Marek v. Chesny
• There’s a domestic disturbance award, where the police shot respondent’s son.
Police offer a settlement, which Chesney rejects, wins less than they offered, and asks them to pay
attorney’s fees. Police say according to Rule 68, they don’t have to pay such costs.
• Issue: Are attorney’s fees part of the “costs” in Rule 68? [Yes]
• Reasoning (Burger): Offer was proper according to Rule 68; if costs weren’t
included, D wouldn’t want to settle. Historically, attorney’s fees were not included in costs, but
costs can be interpreted to include attorney’s fees. There is no need to demarcate substantive
damages and costs. It was reasonable not to award fees incurred after unreasonably rejecting an
offer of settlement
• Dissent (Brennan): Congress has been considering amending Rule 68 that would
include attorney’s fees. This would put pressure on plaintiffs to settle on offers given. Best
interpretation is that cost under Rule 68 does not include attorney’s fees. If it did, there would be a
conflict with the statute (1988). The best way to resolve conflict is to allow attorney’s fees to be
awarded under this kind of circumstance

Evans v. Jeff D.
• Class action on behalf of handicapped children in a school against school officials.
They are represented by a next of friend from the Idaho Legal Aid Society (Johnson); allowed to
appear in forma pauperis so they don’t have to pay. Settlement offered injunctive relief (more than
could be hoped for at court); Johnson could take the offer and leave his fee, or proceed to trial, win
less for the client and get his fee. Johnson wants both.
 • Issue: whether the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.S. §
1988, required the district court to disapprove the settlement because it was expressly conditioned
on waiver of statutory eligibility for attorney fees. [NO]
• Reasoning:
• Can court modify the offer? Under Rule 23(e), you either have to accept or
reject an offer. Can’t make a party accept a settlement they didn’t agree to in the first
place.
• Johnson had an ethical dilemma between either client interest or getting his
fee award, but court says he has no ethical duty to get a fee award; his concern should be to
represent his client.
• Section 1988 does not require the DC to reject the settlement offer even if it
has a fee waiver in it.
• Dissent (Brennan): the approach of the majority is wrong; they think statute gives
Ps an advantage if you get attorney’s fees, but he thinks it aims to provide incentive for attorneys
to take these cases. This decision creates a disincentive. Attorneys should include a clause in Ks
that says attorney’s fees cannot be waived.