News

     The Civil Justice Research Initiative at Berkeley Law School published a new paper on reviving the civil jury that describes the history, legal issues, and empirical research on civil juries with an eye toward making better and greater use of juries. The paper was written by Richard Jolly of Southwestern Law School, Valerie Hans of Cornell Law School, and CCL's Robert S. Peck.

      The paper shows that juries are an essential part of American democracy, are often subjected to unwarranted disrespect, and are very good at doing their assigned tasks according to the best available empirical research. The paper, "The Civil Jury: Reviving an American Institution," concludes with recommendations that the option of a jury trial should be the default rule, rather than merely available upon request; that damage caps be eliminated; that expanded expedited jury trials using 12 jurors take place; that more be done to assure representative juries; that 12-person juries be the norm; and that active measures, such as permitting jury notetaking and questions, be adopted.

     The paper is available at The Civil Jury: Reviving an American Institution.

    In a post to the Appellate Advocacy blog, CCL President Robert S. Peck discusses some of the tips that judges and practitioners offered on a webinar sponsored by the U.S. Court of Appeals for the Fourth Circuit. The blog is part of the law professor network. Peck posts on Sundays every two weeks. His latest post can be found at Tips for Appellate Practice, Fourth Circuit Edition, Part 1.

     CCL President wrote and filed a brief arguing that no conception of federal common law justified removal of the State of Rhode Island's case against major oil producers for the in-state consequences of their misrepresentations about fossil fuels. The State had sued the companies on grounds of misrepresentations in state court on state causes of action, but the defendants had removed the case to federal court.

     In this second visit to the First Circuit, which originally held that the oil companies had no claim to federal jurisdiction by asserting that they had done what they were accused of at the direction of the federal government, the appellate court is reviewing other claimed bases for federal-court jurisdiction. This time around, the defendants rely heavily on a claim that because climate change is a global issue, it requires the courts to apply federal common law, rather than state law.

     The amicus brief filed today on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, argued that whatever federal common law may have once existed was displaced by the Clean Air Act, which gives the states a role in combating the local effects of air pollution. States, it further argues, have a right to bring state causes of action in state court, just as any other plaintiff does, subject to the defendants' claims of ordinary preemption, which provides no right to remove a case to federal court.

     In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about different strategies for arguing against the application of adverse in-circuit precedent. 

     The blog post is available at What To Do When Faced With Adverse In-Circuit Precedent.

    Judge Lee Yeakel set a schedule for briefs and argument in a case challenging the cap on medical-malpractice damages that Texas enacted nearly 20 years ago. In Winnett v. Frank, CCL has joined with Hartley Hampton of Hampton & King to argue that the cap violates the Seventh Amendment's right to trial by jury. 

    At a status conference requested by the parties, Judge Yeakel gave each side an October 20th deadline for opening briefs and a December 3 deadline for reply briefs. The case will be argued in January.

    Texas amended its state constitution to permit the legislature to enact the damage-cap statute. As a result, the only test of its constitutionality available is through the U.S. Constitution. In recent years, the Supreme Court has found that parts of the Bill of Rights that had not been applied to the States are "incorporated," by the Fourteenth Amendment's due-process clause. One of the outlier individual rights that has yet to be applied to the states is the civil jury-trial right. Winnett seeks to correct that oversight and invalidate the damage cap.

     CCL urged the Supreme Court to revive a civil-rights lawsuit filed on behalf of a disabled person that had been dismissed because the plaintiff only suffered emotional-distress damages. CCL's amicus brief was filed on behalf of the American Association for Justice in Cummings v. Premier Rehab Keller, which the Court will take up in the coming term.

     Under the Rehabilitation Act, recipients of federal funds are obligated not to discriminate against persons with disabilities. In this case, a woman who needed a sign language interpreter sought physical therapy from the defendant, a recipient of federal funding, but was turned away because of the request for an interpreter. She tried going to another physical therapy provider, but found it ineffective. The defendant was the only local provider capable of what she needed. When she returned and was again refused service, she sued. 

     The federal district court found that she had no cognizable damages, having only sued for the emotional distress she suffered. It likened emotional distress damages to punitive damages, which the Supreme Court had held were unavailable for statutes like the Rehabilitation Act, which could only provide remedies similar to those available in contract cases because the federal funding created a contract-like obligation. The U.S. Court of Appeals for Fifth Circuit affirmed, but lodged its reasoning in the rarity with which emotional-distress damages are awarded in contract cases and because those scarce instances would not have provided defendants with notice of these damages being a consequence of its discriminatory act.

    While the plaintiff, remedies scholars, and the U.S. government all focused briefs on the long tradition of emotional-distress damages being available in contract cases, particularly where the breach of contract was likely to cause distress, CCL's brief demonstrated that the underlying bias against emotional-distress damages was ill-taken. It showed that empirical studies demonstrate that juries do a good job assessing the damages, align closely with the severity of the injury, and largely duplicate the assessments that are made by judges in bench trials. It said that the assumption held by the lower courts and by the defendant that emotional-distress damages are unbounded because they have no discernible market value was wrong in practice and should not influence the legal determination before the Court.

     Arguing that state and local governments have the same rights as other plaintiffs to choose state, rather than federal court, a CCL amicus brief asserted that there was no legitimate basis for oil companies to remove a climate-change lawsuit brought by the State of Minnesota to federal court. The brief, on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, focuses most heavily on the oil industries' argument that federal common law completely displaced the state causes of action asserted in the case. 

     In June, the U.S. Supreme Court held that a similar action brought by the City of Baltimore required lower courts to review all the claimed bases for federal-court jurisdiction when a defendant asserts that it was acting at the direction of a federal officer, even if that assertion fails as a matter of law. In the Minnesota case, the oil company defendants made that argument but did not seriously pursue it on appeal, emphasizing the other grounds that would permit it to be in federal, rather than state, court. 

     As for the "federal common law" argument, the amicus brief argued that the Clean Air Act displaced any federal common law and explicitly opened the door to state causes of action, such as the ones filed by Minnesota. The amicus brief was filed with the Law Offices of William Rossbach.

     In a filing in an Illinois trial court, lawyers for the estate of a nursing home resident who died from COVID-19 opposed a motion to dismiss that argues a gubernatorial executive order gave nursing homes immunity from liability for "rendering assistance" to the State in its fight against the health-care crisis. 

    The brief opposing dismissal in Heimbrodt v. Geneva Nursing, written by CCL's Robert S. Peck as consulting counsel, argues that the nursing home did not qualify for immunity because it rendered no assistance to the State but only continued its operations as it had before, that any immunity that could conceivably be applicable had to be directly related to the care of the decedent, which it was not, and that, if the immunity extended so far as to cover the defendant nursing home, it violated the separation of powers, equal protection, special legislation, and takings provisions of the Illinois Constitution.

    The defendant will have an opportunity to file a reply brief in the case. 

   In Gustafson v. Springfield, Inc., the Pennsylvania Superior Court will re-hear en banc a challenge to the application and constitutionality of the federal Protection of Commerce in Arms Act (PLCAA), a law designed to provide gun manufacturers and retailers with immunity from state common-law causes of action. An earlier panel of the court had struck down the federal statute for overstepping Congress's Commerce Clause powers and violating Tenth Amendment federalism guarantees. 

    Gustafson is a products liability action that asserts the gun manufacturer was responsible for the death of a youth because the gun lacked certain safety features. The manufacturer successfully moved to dismiss the case, asserting that it was protected by PLCAA. On August 25, the court will re-hear arguments about PLCAA's applicability and constitutionality. The case will be argued by Jonathan Lowy, legal director of Brady United. In preparation for the argument, Lowy underwent a practice round with CCL's Robert S. Peck, along with two other frequent U.S. Supreme Court practitioners. 

     With the filing of three briefs in a 10-day period, all requesting the Supreme Court overrule prior precedent, CCL President Robert S. Peck's biweekly contribution to the Appellate Advocacy Blog focused on how each brief made its argument that the existing precedents had proven unworkable and the lessons that could be learned from each.

    The Appellate Advocacy Blog is a part of the Law Professors Blog Network. Peck's posting can be found at Requesting Overturning of Precedent.