Aug 8, 2011 Adam N. Steinman
It may not be the most headline-grabbing issue on the Supreme Court’s docket. But it has occupied more of the Court’s attention during the past half-decade than abortion, affirmative action, the Commerce Clause, or the Second Amendment. It is 28 U.S.C § 1447(d)’s command that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This apparent ban on appellate review has generated an awkward line of cases, beginning with Thermtron Products v. Hermansdorfer in the 1970s, which struggle to determine when § 1447(d) “means what it says.” In the Court’s most recent decisions on the issue, several Justices have penned separate opinions voicing their frustration with current doctrine. Enter Jim Pfander and his recent article Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court. Pfander expertly diagnoses what is wrong with the jurisprudence surrounding § 1447(d) and, more importantly, offers a new solution to this long-standing puzzle.
Here is the crux of the dilemma: the text of § 1447(d) forbids appellate review of a district court order remanding a case to state court. Period. Full stop. No exceptions. In Thermtron, however, the Court circumvented this ban on review by reading § 1447(d) as applying only to remands based on grounds specified in § 1447(c). The Thermtron exception is hard to justify as an interpretive matter given the text of § 1447(d). Perhaps more troublingly, it is functionally misguided. It means that § 1447(d) does forbid an appeal if the remand is based on a lack of federal subject-matter jurisdiction—a ground that is specified in § 1447(c)—even though the scope of federal subject-matter jurisdiction can be a very significant issue, both for the parties to a particular case and for our judicial system as a whole. Yet Thermtron permits review for issues of far less significance and impact—such as a district court’s discretionary decision whether to remand state law claims after all federal claims have been resolved—because such remands are not governed by § 1447(c). The problem has been compounded, as Pfander points out, by the Supreme Court’s holding in Quackenbush v. Allstate that a remand order was a “final decision” for purposes of 28 U.S.C. § 1291. While Thermtron contemplated that remand orders qualifying for its judicially-created exception to § 1447(d) would still have to meet the heightened showing required for a writ of mandamus, Quackenbush has been read to make such orders appealable as of right.
Here is Pfander’s solution. Section 1447(d) would be enforced, without exception, to prevent direct appellate review of all district court remand orders. But § 1447(d) would not prevent the Supreme Court from “exercising powers of supervisory oversight conferred in the All Writs Act.” (P. 499.) Therefore, notwithstanding § 1447(d), a party may petition the Supreme Court for leave to file an “original” writ of mandamus or prohibition challenging a district court’s order remanding a case to state court.
There is much to be said for Pfander’s proposal. It avoids the current doctrine’s paradoxical result that appellate review is required in cases where the district court’s decision (in Justice Breyer’s words) “is unlikely to be wrong and where a wrong decision is unlikely to work serious harm,” yet review is forbidden “where that decision may well be wrong and where a wrong decision could work considerable harm.” Under Pfander’s approach, the Supreme Court could focus on those remand orders for which review is most pressing, based on “the significance of the error and the importance of its correction.” (P. 515.)
The biggest textual obstacle to Pfander’s solution is § 1447(d)’s command that a remand order “is not reviewable on appeal or otherwise” (emphasis added). Arguably, the Supreme Court’s use of an original writ would be an example of “otherwise” reviewing a remand order, and so would be equally foreclosed by § 1447(d). But Pfander has compelling responses to this objection. Decisions as old as Ex parte Yerger (1868) and as recent as Felker v. Turpin (1996) reflect a presumption against implied statutory repeals of the Supreme Court’s supervisory authority. Pfander also provides a thorough historical discussion confirming that “the restriction in § 1447(d) was aimed at review conducted by the intermediate courts of appeals and did not affect the Supreme Court’s all-writs authority.” (P. 522.)
Commentators have long suggested that the ideal solution to all this would be to amend § 1447(d)—either by legislation or by federal rulemaking—to codify a more sensible approach to review of remand orders. But wishing it has not made it so. Thus, this remains an issue for the Supreme Court to confront in the next round of § 1447(d) cases. To that end, Pfander’s article is a must-read not only for civil procedure and federal courts scholars, but for practitioners as well. For litigants wishing to block an appeal of a remand order that would currently qualify for a Thermtron-inspired exception to § 1447(d), Pfander’s critique of current doctrine is likely to find a receptive ear with Justices who are skeptical of such exceptions and may finally be ready to change course. For litigants seeking to challenge a remand order for which § 1447(d) still means what it says, Pfander provides the roadmap for invoking the Supreme Court’s supervisory authority via an original writ.
What will happen next is anybody’s guess. Until we get there, members of the academy, the bar, and the judiciary should give Pfander’s proposal a very serious look.
Jun 23, 2011 Howard M. Wasserman
This month in JOTWELL’s Classics Section, CourtsLaw contributing editor Jim Pfander reviews Herbert Wechsler’s 1948 piece , Federal Jurisdiction and the Revision of the Judicial Code. Wechsler recommended a host of changes to the law of federal jurisdiction, many of which subsequently became law. The piece thus demonstrates the positive role that legal scholarship can play in reforming the law.
May 12, 2011 Lee Epstein
Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist,
Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model,
55 Am. J. of Poli. Sci. 89 (2011).
For decades now, scholars have debated whether the Supreme Court takes into account the preferences and likely action of the contemporaneous Congress when it interprets federal statutes. Forcefully represented by Jeffrey A. Segal & Harold J. Spaeth (2002), attitudinalists argue that the Justices vote on the basis of their ideological attitudes vis-à-vis the facts of cases. Period. As they famously declared, “Rehnquist voted the way he does because he was extremely conservative; Marshall voted the way he did because he was extremely liberal.” Congressional preferences have little role to play in this analysis (and besides, as Segal [1997] demonstrated, the legislative process almost never constrains the Justices from voting sincerely). Spiller (with various co-authors), Knight, and I have taken exception to this account (e.g., Bergara, Richman & Spiller 2003; Gely & Spiller 1990; Spiller & Gely 1992; Epstein & Knight 1998). To us, policy-seeking Justices must engage in “dynamic” statutory interpretation (Eskridge 1991). If they do not, they run the risk of Congress overriding their decisions—in which case their least favored interpretation may become law.
Debates over the nature of statutory interpretation will inevitably continue. Where less controversy exists is over constitutional interpretation. Many scholars argue that the Supreme Court need not pay too much attention to Congress when it interprets the Constitution because (1) Congress can’t override its constitutional decisions by a simple majority and (2) other weapons to attack the Court (e.g., jurisdiction stripping, impeachment, budget reductions) are almost never deployed. But ”many” is not all. Meernik & Ignagni (1997), for example, partially refute (1). Their data show that while the Court may say that Congress can’t overturn constitutional decisions, Congress isn’t listening. Between 1954 and 1990, it overturned about forty constitutional decisions by statute. As for (2), Knight, Martin, and I (2001) have made the case that Congress almost never needs to punish the Court precisely because the Justices attend to congressional preferences and interpret accordingly.
That Segal would attempt to assess the role of Congress in the Court’s interpretation of the Constitution was inevitable; his fingerprints are all over the study of judicial behavior. That he (with his co-authors) would be the first to offer systematic evidence of the constraints Congress imposes on the Court, well, that’s downright delicious–especially to those of us–many close friends!–who have long debated the matter with him.
Interestingly, though, according to the authors, the real constraint does not come from (1). Their analysis suggests that the Court is not especially worried about Congress overriding its constitutional decisions. But the data do show that the Court responds to (2)—the possibility of institutional retaliation by Congress. As the ideological distance between the median Justice and the house of Congress closest to her increases, the probability that the Court will invalidate a federal law declines significantly and substantially. No wonder Congress rarely strips the Court’s jurisdiction, reduces its budget, impeaches its members, or otherwise seeks to undermine its institutional legitimacy. The Justices sense danger and retreat.
Characterized in this way, the results are not inconsistent with Segal’s earlier work on interpreting federal laws: in neither the statutory nor the constitutional context do the Justices seem especially worried about congressional overrides or modifications of particular decisions. On the other hand, this latest effort should raise serious concerns about the sufficiency of any account that paints the Justices as unconstrained ideological voters.
Cite as: Lee Epstein,
Congress, the Supreme Court, and Constitutional Interpretation, JOTWELL
(May 12, 2011) (reviewing Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist,
Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model,
55 Am. J. of Poli. Sci. 89 (2011)),
https://courtslaw.jotwell.com/congress-the-supreme-court-and-constitutional-interpretation/.
Apr 13, 2011 Howard M. Wasserman
Michael S. Pardo,
Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation,
51 B.C L. Rev. 1451 (2010).
Perhaps the highest praise for any piece of scholarship is “I wish I had thought of that.” As someone who writes in civil procedure and dabbles in evidence, that was my reaction to Michael Pardo’s Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation. Pardo, for arguably the first time, links non-trial dispositive procedures in civil litigation (Dismissal for Failure to State a Claim, Summary Judgment, and Judgment as a Matter of Law) to the underlying law of evidence that would control the claim at trial. The result is a theory of “procedural accuracy,” under which evidentiary proof rules (especially as to burden and standard of persuasion) inform and provide content to the operation of dispositive procedures, ensuring that those devices produce procedural outcomes that align with the outcomes and policies dictated by evidentiary proof rules. By drawing these links, Pardo both justifies the use of non-trial dispositive procedure and shows how those procedures should properly function.
Courts and commentators have largely ignored this procedure-evidence link. Perhaps this is another by-product of the “disappearing trial.” Because civil actions, especially in federal court, so rarely get to trial (in 2009, trial began in approximately 3 % of civil cases, which actually represented a slight increase from a few years prior), the tendency is not to think about civil actions or civil procedure in trial terms, but only in terms of dispositive non-trial procedure. There has been no systematic effort to link the ordinary operation of dispositive procedure to the controlling evidentiary standards. The Supreme Court has twice drawn these connections.
This is the gap that Pardo fills.
He starts from the premise that, however rare trials may be, trial rules can and should influence the operation of the litigation process as a whole. Evidentiary proof rules seek to increase material accuracy (the outcome is grounded on factual conclusions that match reality), while procedural rules seek to increase procedural accuracy (the outcome of the process matches what material accuracy demands). The standards for implementing those dispositive procedural devices thus must be informed by those underlying proof rules.
Pardo then proposes a different conception of evidentiary proof rules (one that he and Ron Allen had previously explored) as grounded not in probabilistic relationships between evidence and facts, but in explanatory relationships between evidence and facts. This conception asks whether the explanation proffered by the party with the burden of persuasion, if true, better explains the evidence and disputed events than alternative explanations (either explanations proffered by the opposing party or alternative explanations not offered by either party). Thus a party carries its burden of persuasion by a preponderance of the evidence when the explanation it proffers is the best explanation for what the evidence shows happened in the real world, even if only slightly better. A party carries its burden of persuasion by clear-and-convincing evidence when its explanation is clearly and convincingly better than alternative explanations.
This evidentiary framing then controls non-trial dispositive procedural devices. For example, on summary judgment and judgment as a matter of law (both of which ask the same procedural question), a non-moving party with the burden of persuasion must show that a reasonable jury could find its explanations of the evidence, facts, and events to be a better explanation than the explanations favoring the defendant. That is, summary judgment should be entered only if a reasonable jury could not find the non-moving party’s explanation to be better than any other explanations that favor the moving party. And if the standard of proof is the elevated clear and convincing evidence, that explanation must be clearly and convincingly better. Similarly, the question on a 12(b)(6) motion is whether a reasonable jury could find the explanation of the events as pled the best explanation or whether there is an alternative explanation that a reasonable jury must find at least as likely than the plaintiff’s preferred explanation.
Pardo argues that this model both explains existing law and can guide courts as to the proper approach to these devices going forward. Importantly, the model provides content to the much-discussed, much-criticized, and still-undefined concept of “plausibility” in pleading introduced in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Pardo argues that plausaibility means that the explanation of events as alleged seems (to a reasonable fact-finder) as if it could be true and provides a “tentative, acceptable account of the disputed events.” A complaint is plausible if a reasonable jury could find it to be the best explanation. He also argues (contra Suja Thomas) that the “reasonable jury” inquiry is neither a legal fiction nor impossible to separate from the judge’s own view of the facts. In fact—returning to the way evidence informs procedure—Pardo argues that the reasonable-jury standard is a well-established feature in the law of evidence, where the admissibility of one piece of evidence often turns on whether there is evidence sufficient to support a finding of some preliminary fact—meaning whether a reasonable jury could find that fact. Thus, if the reasonable-jury standard works on discreet evidentiary matters, it should work in all procedural devices that rely on evidentiary concepts.
This article represents a giant step in linking civil procedure and the law of evidentiary proof, a project that also remains a work in progress. For example, Pardo is a bit too forgiving of the Supreme Court’s recent pleading decisions, particularly Iqbal, which invites judges to dismiss claims whenever they identify, through their common sense and experience, alternative explanations for some events, without necessarily comparing which explanations a reasonable jury might accept. Under Pardo’s model, if a court finds two equally good explanations for some events, that should mean that a reasonable jury could find the plaintiff’s explanation better, meaning a case should pass that procedural hurdle. Otherwise, it is hard to see how the judge controlling these dispositive procedural devices is not acting as a fact-finder.
But Pardo provides the essential insight that civil litigation is a unified whole—in its pre-trial and trial processes—designed to reach a materially accurate result through factual allegations and evidence, and every procedural step in the process works towards that end. That insight can shape and guide further consideration of dispositive procedure.
Apr 13, 2011 Michael Froomkin
Courts Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Adam Steinman
Professor of Law
Seton Hall University School of Law
Professor Howard M. Wasserman
Associate Professor of Law
Florida International University College of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Sergio J. Campos
Associate Professor of Law
University of Miami School of Law
Professor Brooke Coleman
Assistant Professor of Law
Seattle University School of Law
Professor Lonny Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Professor Suzette Malveaux
Associate Professor of Law
Columbus School of Law, The Catholic University of America
Professor James E. Pfander
Owen L. Coon Professor of Law
Northwestern University School of Law
Professor Suzanna Sherry
Herman O. Loewenstein Professor of Law
Vanderbilt University Law School
Professor Suja A. Thomas
Professor of Law
University of Illinois College of Law
Professor Jay Tidmarsh
Professor of Law
University of Notre Dame Law School
Professor Steve Vladeck
Professor of Law
American University Washington College of Law
Professor Kevin C. Walsh
Assistant Professor of Law
University of Richmond
Apr 5, 2011 Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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Apr 5, 2011 Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
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