Erie's International Effect

Michael Steven Green*

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In his important article, When Erie Goes International, Professor Childress addresses the marvelous question of the Erie doctrine's application in an international context.[1] In particular, Childress argues that Klaxon Co. v. Stentor Electric Manufacturing Co.,[2] which held that a federal court sitting in diversity (or alienage) must borrow the choice-of-law rules of the state where the federal court is located, should not apply when the federal court chooses between state law and the law of a foreign nation.[3] In this Essay, I have three points to make in response—one clarificatory and two critical.

Rethinking Extraordinary Circumstances

Scott Dodson[*]

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Introduction

Normally, the entry of an unappealed final judgment ends the case forever, even if later developments undermine faith in the accuracy of the decision or the fairness of its procedural grounds.  Litigation must have an end, and a final judgment usually marks that point.

Rule 60(b), however, has long been available to provide relief from judgment to losing litigants where justice so demands.  The rule states that a court may relieve a party from final judgment "[o]n motion and just terms" under five enumerated grounds (including mistake, newly discovered evidence, fraud, voidness, and judgment satisfaction) and one catchall provision.[1]  The catchall, Rule 60(b)(6), provides that a court can relieve a party from judgment for "any other reason that justifies relief."[2]

The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit (Part II)

Douglas G. Smith[*]

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Introduction

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional.[1]  Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent.  I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure that would require absent class members to take some affirmative action before being swept into a class action, and prohibition of settlement classes, which Professor Redish believes are often subject to abuse.  The second portion of this Essay explores further implications and applications of Professor Redish’s theories.

The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit

Douglas G. Smith[*]

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Introduction

Much ink has been spilled over the class action device.  Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice.  Seldom does a work break new ground in a field that has been plowed as often as that of class actions.  Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception.

In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional implications of the class action mechanism.  Unlike prior commentators and courts, which have focused mainly on limited constitutional issues arising in class action cases, Professor Redish’s analysis sweeps more broadly.  In the process, he brings to bear principles of constitutional law that have long lain dormant in the field of class action practice.  His insights demonstrate that more than mere practical or policy concerns arise when class action procedures are used.  Rather, they implicate—and often infringe—fundamental principles of constitutional law.

Remand and Appellate Review Issues Facing the Supreme Court in Carlsbad Technology, Inc. v. HIF BIO, Inc.

Deborah J. Challener[*] & John B. Howell, III[**]

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Under 28 U.S.C. §§ 1447(c) and (d), remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction.[1]  Until recently, all appellate courts that had addressed the issue had concluded that when a district court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)[2] and remands the supplemental claims to state court, the remand is not based on a lack of subject matter jurisdiction and is therefore reviewable on appeal.[3]  In HIF Bio, Inc. v. Yung Shin Pharmaceuticals Industrial Co.,[4] however, the United States Court of Appeals for the Federal Circuit became the first circuit to hold that such remands, sometimes referred to as Cohill remands,[5] are based on a jurisdictional defect and therefore are not subject to appellate review.[6]  On October 14, 2008, the Supreme Court granted certiorari in HIF Bio to resolve the circuit split created by the Federal Circuit.[7]  The Court heard oral argument in the case, now captioned Carlsbad Technology, Inc. v. HIF Bio, Inc., on February 24, 2009. 

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio.  We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims.  Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them.  After establishing that Cohill remands are not subject-matter jurisdictional and therefore are reviewable on appeal, we examine the district court’s remand order and the Federal Circuit’s opinion in HIF Bio.  We assert that in reviewing the remand order in HIF Bio and deciding that Cohill remands fall within §§ 1447(c) and (d), the Federal Circuit incorrectly applied the Supreme Court’s recent decision in Powerex Corp. v. Reliant Energy Services, Inc.[8]  Finally, we offer a few comments about whether Cohill remands should be reviewable on appeal.

What Twombly and Mead Have in Common

By Amy J. Wildermuth[*]

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Introduction

The Supreme Court’s recent opinion in Bell Atlantic Corp. v. Twombly[1] has already had enormous implications for pleading requirements under the Federal Rules of Civil Procedure. As of early April 2008—less than a year after it was issued—Twombly had been cited in almost 5,000 cases.[2]  It also was an immediate—and continuing—source of much academic debate.[3]

I cannot help but notice a distinct parallel between Twombly and another opinion authored by Justice Souter, United States v. Mead.[4]  At first blush, these cases have little in common outside of their author: One was an antitrust dispute about what factual evidence must exist and be pled to defeat a Rule 12 motion on an alleged “parallel conduct” violation of Section 1 of the Sherman Act; the other was an administrative law case about the deference owed to agencies’ statutory interpretations that are not subjected to Administrative Procedure Act (APA) required process.  What brings this odd couple together?

The most obvious shared trait is that the Court appears to have fundamentally altered procedural law in both decisions.  That alone, however, does not mean much.  Changing the law, even significantly, is the Court’s prerogative.  The common denominator instead is the confusion one is left with after parsing both Twombly and Mead. It is one thing to know that the law has changed when the change—the new order, the new rule, the new way of operating—is clear.  But these opinions offer no straightforward answers. Rather, on key issues in both cases, the court offers a similar formula of circular directions: it begins with a fairly clear description of the general legal test to apply, but then proceeds to detail exceptions or additions that have the potential to swallow the general rule.

These two cases are different, however, in one important way: the Court’s ability to correct the confusion its decisions engender.  Even if the Court were interested in revisiting the question of the proper deference to afford agency interpretations, it would need to wait for a good vehicle to address the many uncertainties Mead has generated.  The confusion with respect to Twombly, however, can disappear quickly.  Acting under its powers to revise the Federal Rules of Civil Procedure, the Court could revise either Rule 8[5] or Rule 9[6] and thus immediately end the speculation regarding what Twombly means.