Litigation In Federal Courts Research Articles

An Imperfect Solution: The Due Process Case for Providing Court-Appointed Interpreters for Pro Se Plaintiffs

A federal law, the Court Interpreters Act, provides litigants with complimentary access to a qualified or professionally certified interpreter in actions instituted by the United States. The majority of pro se civil litigation in federal courts is initiated by the United States, and thus, those pro se litigants who speak little-to-no English need not pay for access to an exceptional interpreter. Indeed, federal courts offer interpreters proficient in a multitude of languages, and the courts work hard to ensure adequate interpretation in proceedings brought by the United States.
 However, those limited-English-proficient pro se plaintiffs initiating their own lawsuits face a steep climb to vindicate their private rights against nongovernmental defendants. Beyond the inherent challenges associated with filing and proceeding absent legal counsel, these litigants further proceed absent the language skills necessary to understand the meaning and effect of a court’s hearings. The Court Interpreters Act effectively ignores this class of litigants. While federal district judges have the power to appoint interpreters for civil litigants on a discretionary basis, district judges do not always exercise this power. Anything short of a mandate to provide interpretation services to the small group of non-English-speaking pro se plaintiffs overlooked by the Court Interpreters Act risks continued denial of their right of meaningful access to the courts.
 In this Comment, I argue that under both common sense and the procedural due process Mathews factors, language access is a material component of a litigant’s right to be heard. Our judicial system works hard to accommodate pro se litigants while also denying those pro se litigants who lack adequate English skills access to an interpreter. To remedy this flagrant unfairness, I propose that the Administrative Office of the United States Court should amend its Policy Guidance so that pro se plaintiffs pleading a colorable cause of action receive interpretation services as needed.

The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people.

Correctional Medical Care for Female Prisoners: Legal Issues Surrounding Inadequate Treatment of Chronic and/or Preexisting Health Conditions

Research shows incarcerated women suffer more chronic and/or preexisting health conditions than their male counterparts. Through the lens of federal court litigation pursuant to Title 42 U.S. Code Section 1983, this article discusses women who brought legal challenges, questioning the adequacy of correctional medical care rendered to their chronic and preexisting health conditions. Case law reveals several trends, including multiple disease co-morbidities, malingering, medication administration, free-world specialty care, diagnostic and treatment limitations, and mental illness. The article concludes with policy implications, suggestions for future research, and recommendations for accelerated research on the chronic and/or preexisting health conditions of female prisoners.

Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court. This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights. This working paper forms the basis for a series of forthcoming and in-progress articles exploring all aspects of SB8.

Customary International Law and U.S. Judicial Power: From the Third to the Fourth Restatements

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

(Un)Changing Rates of Pro Se Litigation in Federal Court

There is widespread concern among scholars, court actors, and policy makers that the number of pro se litigants is increasing. However, we have little empirical evidence of the scope of pro se litigation, especially in the federal court system. Using data from the Administrative Office of the U.S. Courts on all civil case filings since 1999, we investigate the prevalence and rate of pro se litigation in federal district courts. We find no evidence of a dramatic rise in pro se litigation, but we document substantial variation in rates of pro se litigation by type of case and circuit of filing. The results have implications for our understanding of self-representation and for the development of policies addressing access to civil justice.

The Copyright Claims Board and the Individual Creator: Is Real Reform Possible?

Recent copyright reform efforts include legislation in the Congress that would create a copyright claims board to help individual creators and small businesses enforce their copyrights without the expense and complexity of federal court litigation. This article reviews similar tribunals in other countries and examines the proposed board to determine whether it would be effective, both for small claims plaintiffs and in advancing the goals of copyright overall. Test cases involving different types of plaintiffs and defendants are used in order to determine whether the proposed board would in practice level the playing field for individual creators in copyright infringement suits.

Noncompetes and Other Post-Employment Restraints on Competition: Empirical Evidence from Trade Secret Litigation

Noncompete clauses in employment agreements are both common and controversial. An estimated 28 million Americans—nearly 20% of the U.S. workforce—are currently bound by a noncompete. The traditional view that noncompete agreements can facilitate increased productivity by encouraging employers to invest in employee training has been challenged by numerous legal and economics scholars, who contend noncompetes hinder employment options for skilled workers and limit information spillovers, which are both vital drivers of innovation. Based on these claims, several states have recently limited the enforcement of noncompetes, and similar legislation is pending at the federal level. Despite their widespread use, empirical research regarding noncompetes is fragmented and incomplete. In particular, there have been few empirical studies based on actual employment agreements. This paper helps fill an important gap in the existing literature. Using a novel dataset of over 500 employment agreements that have been publicly disclosed in trade secret litigation in federal court, it finds that noncompetes are more frequently enforced against technical and sales personnel than high-ranking corporate executives. In addition, it finds that noncompetes are common for employees with a base salary below $100,000 per year and that California-based employees are significantly less likely to be bound by a noncompete. The implications of these and other findings from the dataset are discussed in the final section of the paper.

If You Build It, They Will Come: The Promises and Pitfalls of a Copyright Small Claims Process

Copyright law provides fertile ground for small claims adjudication: an- abundance of straightforward infringements claims remains unpursued because the costs of litigation in federal courts outweigh the monetary value at stake in many individual disputes. This Article explains how a small claims process can infuse accountability and deterrence into copyright law by bringing to life meritorious infringement claims that otherwise remain negative value lawsuits, while discouraging dubious, opportunistic infringement allegations. Applying incentive analysis, this Article then examines Congress's most recent proposal to institute a small claims board. It finds that the CASE Act's statutory damage provisions are mismatched with the voluntary nature of the small claims process. The CASE Act is likely to induce opportunistic claims as well as bluff opt-outs by defendants, rendering the small claims board ineffective. Ironically, the ambitious nature of the CASE Act system inadvertently pushes out adjudication of the very small claims that it seeks to salvage.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case? This report, prepared for the International Academy of Comparative Law in connection with its XXth International Congress, analyzes the approach to these questions in the United States. The bottom line is straightforward: almost always, in consumer as well as commercial contracts, forum selection clauses will be enforced. Navigating the array of substantive, procedural, and conflicts rules whose interplay yields that result, though, is far less straightforward. That is the task of this report. Following a short background, it surveys current state law on their use, in consumer as well as commercial contracts. The report then discusses the interpretation and enforcement of forum selection clauses in both state and federal courts. It analyzes their effect on jurisdiction as well as on doctrines involving venue, such as removal and forum non conveniens. The report also covers choice of law problems, particularly as they arise in the course of litigation in federal courts.

PRIVATE ANTITRUST AT THE U.S. INTERNATIONAL TRADE COMMISSION

This paper, drafted as an adjudicator's opinion in a recent case of nearly first impression, explores private antitrust adjudication in the Section 337 docket of the US International Trade Commission (ITC). There are several significant reasons why even a skeptic of the ITC's Anti-dumping, Countervailing Duty, and Safeguards docket (collectively, the “Title VII” docket)—as well as an antitrust skeptic—should be significantly less worried when cases normally expected to be brought in the Title VII portion of the ITC's docket as petitions are instead brought in the Section 337 portion of the ITC docket as complaints alleging ordinary violations of the antitrust laws. Private antitrust litigation fits with the plain meaning of the ITC's statute and with well-established antitrust case law. The ITC 337 docket also offers some practical benefits over courts and other agencies. The procedures do not rely heavily administrative deference; and do rely heavily on the full panoply of procedural devices ordinarily available in court for truth-testing of evidence including cross examination, all in a timeframe likely to be significantly shorter (around 18 months) than the many years typically required for antitrust litigation in federal court, and without the black box of a general jury verdict. What about the doctrine that federal courts developed called “antitrust injury?” The ITC relied on that doctrine to dismiss a case recently brought by the domestic U.S. steel industry against Chinese importers of steel. This paper explores some reasons why that doctrine does not fit the ITC 337 statute.

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

IEEE-USA Opposes Patent Office Review of Issued Patents [Patent Reviews

The IEEE-USA has filed a brief in a case pending before the U.S. Supreme Court [Oil States v. Greene’s Energy (Supreme Court 2017)] arguing that Congress does not have the power to permit the invalidation of patents by the U.S. Patent and Trademark Office (USPTO). Patents issued by the USPTO have traditionally been considered the property of the patent owner. When questions of patent infringement or validity came up, they were tried in federal courts with a few exceptions in re-examinations at the USPTO. In 2012, the U.S. Congress passed the America Invents Act that changed the rules at the USPTO; these rules have dramatically changed the way a patent’s validity is tested. With the goal of making the purging of bad patents easier and less expensive than federal court litigation, the AIA prescribed procedures and standards for the USPTO that are more streamlined than those of the courts.

Unpacking Trade Secret Damages

This study is the first to conduct an in-depth empirical analysis of damages in trade secret cases in the U.S. From an original data set of cases in federal courts from 2000 to 2014, I assess the damages awarded on trade secret claims. In addition, a wide range of other variables are incorporated into the analysis, including those related to background court and jurisdiction information, the kinds of trade secrets at issue, background details about the parties, the related causes of action included with claims of trade secret misappropriation, and details about the damages awarded. Analysis of this data and the relationship between and among the variables yields insightful observations and answers fundamental questions about the patterns and the nature of damages in trade secret misappropriation cases. For instance, I find average trade secret damage awards comparable to those in patent cases and much larger than trademark cases, very positive overall outcomes for plaintiffs, and higher damages on business information than other types of trade secrets. The results make significant contributions in providing deeper context and understanding for trade secret litigation and IP litigation generally, especially now that we enter a new era of trade secret litigation in federal courts under the Defend Trade Secrets Act of 2016.

'Natural Born' Disputes in the 2016 Presidential Election

The 2016 presidential election brought forth new disputes concerning the definition of a born citizen. The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a born citizen. This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

Attorneys, Document Discovery, and Discipline

Despite the growing use of sanctions and recent amendments to the Federal Rules of Civil Procedure aimed at improving discovery practice, many lawyers continue to play fast and loose with the rules of discovery governing (paper and electronic) documents. Nonetheless, most lawyers never face discipline for their discovery misconduct. This article argues that federal courts could make more effective use of attorney discipline systems to improve document discovery in civil cases. What will be effective depends on why discovery misconduct occurs. There are multiple reasons why lawyers may engage in such misconduct – from ignorance of the rules to intentional, calculated violation of the law. The best explanation for most discovery misconduct, though, is that lawyers do not think they are doing anything wrong. Behavioral legal ethics explains how cognitive bias, situational pressures, and other factors influence attorney behavior in discovery. This article makes the case that federal judges could counteract these factors – and perhaps even harness the power of behavioral science – by consistently educating attorneys about discovery expectations and consistently imposing disciplinary consequences for discovery misconduct. These changes could fundamentally change the way lawyers conduct discovery. While some may argue that consistent imposition of sanctions could have the same impact, the article presents the reasons attorney discipline is superior to sanctions alone. The article opens with descriptions of common problem areas in document discovery in civil litigation in federal court. This discussion explains the governing procedural rules and other law and provides examples of how attorneys regularly violate their legal obligations in each area. This part of the article concludes by discussing the availability of sanctions and the rise in their use in recent years. With that foundation, the next part of the article explains the professional conduct rules pertinent to document discovery practice and the discipline systems that could be used to address misconduct. Thereafter, the article considers the dearth of document discovery-related disciplinary proceedings originating from federal court. A contributing factor to the lack of discipline appears to be the low number of disciplinary referrals. The article considers the reasons attorneys do not report the discovery misconduct of opposing counsel and the somewhat different reasons judges do not make discipline referrals. With this understanding of the lack of discipline and some of the reasons for it, the article argues for reform, explaining the appropriate cases for discipline referrals, how behavioral legal ethics research should influence judges to consistently turn to the discipline system, and the advantages of discipline over sanctions alone. The article closes with a discussion of three different settings in which discovery discipline reform could be achieved: at the judge-level, court-level, and nationally. This discussion considers specific ideas for implementing change in each setting and the reasons some of these avenues may be more effective than others.

(In)valid Patents

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages award it had previously affirmed — because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO issued its conflicting decision on patent validity.The Federal Circuit’s stringent conception of finality, which this article terms the “absolute finality” rule, raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity.

Party Control of Judicial Authority

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my theory, parties fall in the lowest tier of the power heirarchy, beneath the law on top and judicial authority in the middle. Party subordinance means that the law — not party agreement — binds the court, and even when parties can lawfully make litigation choices, those choices generally do not bind the court. The upshot is that parties in fact have far less control over their litigation than previously assumed. Party subordinance suggests that the trend toward litigation customization is on shakier footing than presently acknowledged, reorients some key elements of the normative debate surrounding customization, and exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. At its broadest, the theory of party subordinance shifts the way the federal litigation system views the heirarchy among parties, courts, and the law.

“Integration was a Solution, but Integration does not Address Quality Education”: A Conversation about School Desegregation with Dr. Michael A. Middleton

Dr. Michael A. Middleton is Deputy Chancellor of the University of Missouri–Columbia. He is an expert in civil rights and employment discrimination and served as lead counsel for plaintiffs in the St. Louis metropolitan school desegregation litigation. Dr. Middleton previously served as director of the St. Louis District Office of the U.S. Equal Employment Opportunity Commission (EEOC). He was also an associate general counsel at the EEOC in Washington, DC for three years. During this time, he managed the commission's national litigation program and supervised 250 attorneys at 22 district offices in federal court litigation activities. He has held several other high-level government positions, including deputy assistant secretary of education at the U.S. Department of Education; director of the Office of Systemic Programs at the EEOC; and assistant deputy director of the Office for Civil Rights at the Department of Health, Education, and Welfare. As deputy chief counsel and director of the Government Employment Project for the Lawyers’ Committee for Civil Rights Under Law in the early 1970s, Middleton handled civil rights litigation focusing on voting rights and government employment throughout the South. He began his career as a trial attorney for the U.S. Department of Justice Civil Rights Division, where he actively litigated several major employment discrimination cases in the federal courts across the country. On February 15, 2013, we sat down with Dr. Middleton to discuss the history, current status, and future of school desegregation.

Climate Change and the Public Trust Doctrine

The public trust doctrine, an ancient canon rooted in Roman law and long recognized in Anglo-American jurisprudence, has been invoked in recent state and federal court litigation and citizen administrative actions that seek to compel the federal and state governments to confront the threat of climate change. The plaintiffs in these “Atmospheric Trust Litigation” (ATL) cases are young people who assert that a climate crisis exists and that their futures and those of succeeding generations are in jeopardy because of the failure of the federal and state governments to act expeditiously to protect the earth's atmosphere from the adverse impacts of climate-changing carbon emissions. In this commentary, I discuss the history and evolution of the public trust doctrine and efforts of concerned citizens to use it to move governments to address the crisis in a comprehensive, meaningful manner.