Research for Parts 3 & 4 of The Evolution of Debt Slavery in Modern Times

Research for Parts 3 and 4 of The Evolution of Debt Slavery In Modern Times

 

HYPOTHESIS: Federal Judicial Department has consistently favored wealthy and privileged.

 

Dahlia Lathwick, “This Court Erred: The Supreme Court has almost always sided with the wealthy, the privileged, and the powerful, a new book argues” Slate (September 30, 2014) reviewing 2014 book by Constitutional Law Professor Erwin Chemerinsky, The Case Against the Supreme Court  

 

Mark Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” Originally printed in Volume 9:1 Law and Sciety Review, 1974. Reprinted (with corrections) in R. Cotterrel (ed.) Law and Society, Altershot, Dartmouth, 1994, pp 165-230

 

ARTICLE:”Do the “Haves” Come Out Ahead over Time? Applying Galanter’s Framework to Decisions of the U.S. Courts of Appeals, 1925-1988”, 33 Law & Soc’y Rev. 811 (1999)

https://advance.lexis.com/document/?pdmfid=1000516&crid=7bdcb108-b4c3-4fb9-b915-53f24da35294&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A417N-6260-00B1-909P-00000-00&pddocid=urn%3AcontentItem%3A417N-6260-00B1-909P-00000-00&pdcontentcomponentid=222560&pdteaserkey=sr12&ecomp=m4ntk&earg=sr12&prid=3920560a-63f7-43f9-8f5c-5dd6e1570fe2#

 

This investigation examines the success of various types of litigants appearing before the U.S. Courts of Appeals from 1925 to 1988. The analysis parallels the earlier studies by Songer and Sheehan (1992) and Wheeler et al. (1987) that applied the core concepts introduced by Galanter’s groundbreaking analysis of why the “haves” come out ahead to study litigant success on the U.S. Courts of Appeals and state courts of last resort. The findings suggest that repeat player litigants with substantial organizational strength (“haves“) are much more likely to win in the federal courts of appeals than one-shot litigants with fewer resources. The “haves” win more frequently in published decisions, even after controls are introduced for the ideological makeup of the panel. The advantage in appellate litigation enjoyed by repeat player “haves” is remarkably consistent over time. In particular, the U.S. government has compiled an impressive record in these courts by dominating opposing litigants over the 64-year period of analysis.

 

Henderson, William D. and Galanter, Marc, “The Elastic Tournament: The Second Transformation of the Big Law Firm” (2008). Articles by Maurer Faculty. Paper 117

 

Memo: Change in law firm structure coming into effect at same time as economic meltdown

 

Richard Abel, COMMENTARY: HOW MARC GALANTER BECAME MARC GALANTER, 62 DePaul L. Rev. 555, 567-568 (Winter 2013)

 

  1. Lawyers

Marc’s interest in the legal profession began early: co-teaching a seminar in Chicago with Alan Barton in 1956-1957, organizing a conference on the Indian legal profession in Chicago and editing the papers for a special double issue of the Law & Society Review in the 1960s, and participating in a seminar on the legal profession at Yale in 1970. A decade later, the National Law Journal, American Lawyer, and other popular publications illuminated the previously opaque workings of large law firms. Fascinated, Marc wrote an article about  [*568]  “mega-lawyering.” This contained the germ of his work with Thomas Palay, published ten years later, which explained the geometric growth of law firms in terms of relationships between partners and associates. Marc extended those ideas in his work on the aging of the American legal profession, gender differences in the profession, similarities and differences in the structures of large firms in the United States and the United Kingdom, and the growth in the population of lawyers around the world. Just as he had debunked claims about contemporary litigiousness, he disabused nostalgic visions of a golden age of the American legal profession.

 

Ryan C. Black and Christiana L. Boyd, US Supreme Court Agenda Setting and the Role of Litigant Status, JLEO (2012) 28 (2): 286 (2013)

Whether the “havescome out ahead of the “have nots” in the judicial process is a topic of great interest for scholars of the judiciary. Although studies of lower courts have found that litigant status generally matters, research at the US Supreme Court is not of one voice, with conflicting results across several studies. Bringing a novel perspective to this debate, we analyze litigant status at the Supreme Court′s agenda-setting stage. Using archival data from the articles of Justice Blackmun, we find that litigant status influences the Court′s decision making but that the nature of the effect can be mitigated by the interplay between a justice′s ideology and the presence of interest group support. (JEL C00, K00, K40)

 

Shauhin A. Talesh, Forward: Why Marc Galanter’s Haves Article is one of the Most Influential Pieces of Legal Scholarship Written” (May 2014)

 

http://www.law.uci.edu/faculty/full-time/talesh/TaleshForewordGalanterarticle.pdf

 

Dahlia Lathwick, “This Court Erred: The Supreme Court has almost always sided with the wealthy, the privileged, and the powerful, a new book argues” Slate (September 30, 2014) reviewing 2014 book by Constitutional Law Professor Erwin Chemerinsky, The Case Against the Supreme Court  

 

HYPOTHESIS: Supreme Court created the conditions for redistribution of wealth away from the middle class through foreclosure by re-writing the federal rules of civil procedure through judicial decisions contrary to requirements of the Rules Enabling Act, 28 U.S.C. § 2072, which required a rulemaking process prior to changing the meaning of Fed. R. Civ. Pro. 12(b)(6).

 

The change in the Rule was timely to be in full effect by 2006 when the the Unites States economy collapsed and the wealthy went after the assets of the middle class.

 

The changed rule resulted incentivized creditors to bring debtors into federal court where 1.) over 90% of them lost their cases; and 2.) federal court almost always interpreted the meaning of state laws against debtors and in favor of creditors, often ignoring previous State courts’ construction of their own law.

 

JOE S. CECIL, ET AL., FED. JUDICIAL CTR., MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AFTER IQBAL: REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES (2011)

 

http://www.uscourts.gov/sites/default/files/motioniqbal_1.pdf

 

In 2008, the economy experienced a marked downturn that affected the housing market in particular. This change, along with many others, resulted in a shift in the case mix over this period. There was a general increase in cases challenging mortgages and other forms of financial debt instruments. Individual courts also experienced changes in filing patterns: most courts showed an overall increase in case filings. P.7

 

Finally, we note the distinctive nature and marked changes over time in cases challenging financial instruments. The “financial instrument” category of cases combines nature-of-suit codes indicating case categories for negotiable instruments, foreclosure, truth in lending, consumer credit, and “other real property.” The great majority of these cases involve claims by individuals suing lenders and/or loan servicing companies over the terms of either an initial residential mortgage or a refinance of an existing residential mortgage. These cases include federal claims under statutes such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and the Fair Debt Collection Practices Act. These cases typically also raise a number of state law claims, often including fraud, negligence, unfair business practices, breach of fiduciary duty, and wrongful foreclosure. Plaintiffs generally seek rescission of the mortgage or loan, damages, and declaratory or injunctive relief. Cases challenging financial instruments increased by 214%, from 1,524 cases in 2006 to 4,790 cases in 2010, apparently due in large part to the economic downturn in the housing market.23 B. Outcome of Motions to Dismiss for Failure to State a Claim Such cases were especially likely to be removed from state court, increasing from 12% of all such cases in 2006 to 16% in 2010. Those cases that were removed from state court showed an increase in the percentage of cases with motions to dismiss, rising from 9.1% of such cases in 2005–2006 to 27.7% of such cases in 2009–2010, the largest increase in filing rates detected. P. 12

 

As shown in the last line of Table 5, we found that only in cases challenging financial instruments did the adjusted rate at which motions were granted without leave to amend increase in 2010. In such cases, the adjusted estimate indicates 90% of the motions were granted with regard to at least some of the relief requested, controlling for the effects of the other variables. We found no other significant increase over time in other types of cases in the adjusted rate at which motions were granted.

 

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The data show a general increase in the rate at which motions to dismiss for failure to state a claim were filed in the first 90 days of the case. We found that motions were more likely to be filed across a wide range of case types, though the size of the increase depended on the type of case. We found the largest increase in filing rates of motions to dismiss in cases challenging financial instruments, such as mortgages and other loan documents. Such cases were rare in 2006, and this increase is most likely related to changes in the housing market and the increasing rate of foreclosure actions. We found no increase in filing rates over time in civil rights cases.

 

After controlling for identifiable effects unrelated to the Supreme Court decisions, such as differences in caseload across individual districts, we found a statistically significant increase in the rate at which motions to dismiss for failure to state a claim were granted only in cases challenging financial instruments. More specifically, we found an increase in this category of cases in motions to dismiss granted without leave to amend. We found no increase in the rate at which motions to dismiss were granted, with or without opportunity to amend, in other types of cases. We also found no increase in the rate at which motions to dismiss for failure to state a claim eliminated plaintiffs in other types of cases.

 

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Table A-3 indicates the marginal effects of individual variables when other variables were held constant. These effects estimates allow for an assessment of the impact of each of the variables by adding the baseline probability of each outcome and the effects estimate for each variable that was statistically significant. For example, while the probability of orders granting a motion with leave to amend was only 15% (i.e., 0.145) in the baseline districts, the probability of orders granting motions with leave to amend in the Eastern and Northern Districts of California was 61% (0.145 + 0.468 in the Eastern District of California and 0.145 + 0.469 in the Northern District of California), when other variables were held constant. While granting motions without leave to amend was the most likely outcome (56% adjusted baseline probability), orders responding to motions challenging financial instruments had an 89% adjusted probability of being granted without leave to amend in 2010 (0.557 + 0.335). Responding to an amended complaint increased the adjusted probability of granting a motion without leave to amend to 64% (0.557 + 0.084).

 

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Similarly, in 2010, orders responding to motions in cases challenging financial instruments were more likely to be granted, both with respect to all claims by at least one plaintiff and with respect to only some claims, all else being equal. As before, we found no statistically significant increase in the likelihood that motions were granted for other types of cases. Finally, responding to an amended complaint increased the likelihood of granting a motion with respect to claims only.

Table A-5 shows the marginal effects of these models. While granting a motion with respect to claims only was the most likely of the three outcomes overall, none of the baseline outcomes had a probability over 50%. Again, this effect varies by district. In the Eastern and Northern Districts of California, the probability of granting a motion with respect to claims only was approximately 50% (0.399 + 0.137 in the Eastern District of California, and 0.399 + 0.095 in the Northern District of California). Granting motions with respect to claims was also a more likely outcome in the Middle District of Florida and the Eastern District of Pennsylvania, though still not as likely as it was in the Eastern and Northern Districts of California. In the Northern District of Texas, denials of motions were more common than the other two outcomes. Orders filed in 2010 responding to motions challenging financial instruments had a higher probability of being granted in both categories, all else being equal. Finally, responding to an amended complaint increased the probability of granting a motion with respect to claims by approximately 49%.

 

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———————————————————————————————————————————C. Summary

 

Together these three analyses indicate that the likelihood of a motion to dismiss for failure to state a claim being filed has increased since 2006 across a wide range of types of cases. After controlling for differences across districts and the presence of an amended complaint, we found that motions to dismiss were more likely to be granted without an opportunity to amend the complaint in cases challenging financial instruments. Motions in such cases were rarely denied in 2010, and were split almost evenly between motions granted with respect to all claims by at least one plaintiff and motions granted with respect to only some claims by plaintiffs. We found no increase in the likelihood that motions to dismiss for failure to state a claim would be granted across other broad case types. The presence of an amended complaint also increased the likelihood that the motion would be granted without an opportunity to amend the complaint, and granted with regard to only some claims by a plaintiff.

 

  1. 33

 

Hoffman, Lonny, “Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center’s Study of Motions to Dismiss” (October 10, 2011). 6 Federal Courts Law Review 1 (2012); U of Houston Law Center No. 1904134.

 

https://poseidon01.ssrn.com/delivery.php?ID=312025116122112113100124007077122120117035019009034090074026116081066082117096067101096034023121015125114119029102066071078095059082053065068068073007007115084071025066040076113014072015003104019092025013029085070101110071106116006064015105107101006000&EXT=pdf

 

In Twombly and Iqbal the Court endorsed more robust filtering at the pleading stage to block certain cases from going further in the litigation process that previously passed unchecked. The defense bar and business community have applauded the use of this less permeable sieve: from their vantage point, intercepting weak claims early in the case-that is, before onerous discovery burdens have to be borne-is vital to the efficient management of civil litigation. Others, including a majority of academics writing on the subject, have criticized the decisions for usurping the Rules Enabling Act process;5 for adding confusion and unpredictability into the test for pleading sufficiency;6 for lodging too much discretion in judges, which fosters inconsistency and arbitrariness;8 and for turning on its head the basic presumption of modem procedural law for resolving cases on their merits.

Prompted by these criticisms, several bills were introduced in Congress that would have reversed the Court’s decisions. From the start, however, these bills have lacked political traction. One important reason (though not the only one) for this is that they were opposed by the Judicial Conference, which has taken the position that legislators should allow judicial rulemakers to study the empirical effects of the decisions and then, through the rule-making process, decide what corrective measures, if any, are needed. Congress does not always follow the advice of the Judicial Conference, of course, but with most Republicans already predisposed against the legislation, the Conference’s opposition suggests that the prospects for legislative reform are dim.

In the absence of any meaningful possibility that Congress will act, the task has fallen to judicial rulemakers to decide whether and how to respond to the U.S. Supreme Court’s decisions. However, while rulemakers have heard all of the theoretical arguments against Twombly and Iqbal, they have not been persuaded that amendments to the pleading rules are necessary to counteract the Court’s decisions, especially without convincing empirical evidence that the cases are impacting dismissal practice.’o The key modifier in that last sentence was convincing empirical evidence. Some prior studies suggested Twombly and Iqbal were making it harder for at least some plaintiffs to overcome the new pleading barrier, but it was not clear that these studies-which were drawn from the selected opinions found in electronic databases-were representative of dismissal practices generally. Accordingly, the rules committees commissioned the Federal Judicial Center to undertake a more comprehensive examination of dismissal activity.

Released in March 2011,” the FJC’s study featured a headline that did not square with academic predictions and the prior empirical research: Twombly and Iqbal were not having much effect on dismissal practices or outcomes, after all. 12 The critical point that the FJC researchers emphasized to readers was that they found no “statistically significant” increase in the likelihood that a motion to dismiss would be granted after Iqbal (except for one outlier case category). The study’s key finding was summarized this way:

 

[W]e found a statistically significant increase in the rate at which motions to dismiss for failure to state a claim were granted only in cases challenging financial instruments. . . . We found no increase in the rate at which motions to dismiss were granted, with or without opportunity to amend, in other types of cases.

 

With the evidence apparently showing that concerns about Twombly and Iqbal were premature, the FJC’s work is now being cited as powerful support for the case against pleading rule reform.14 The problem with this interpretation of the study’s findings is that it is greatly, if unintentionally, misleading. …

 

Jonah B. Gelbach, “Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery” 121 Yale L. J. 2270 (2012)

 

https://poseidon01.ssrn.com/delivery.php?ID=807021021065098083082079105030121107041027049084057009028001120104121016113008109011001021016037024036049108083070075067069027039060090021004104065093114006074092034087071068081117112002003000006027027121101104098091065101107125087122080004072084086&EXT=pdf

 

Abstract. Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show how to estimate a lower bound on this measure using data from recent studies by the Federal Judicial Center. My empirical results suggest that, depending on the nature of the suit in question, Twombly and Iqbal have negatively affected plaintiffs in at least 15% to 21% of cases that faced Rule 12(b)(6) motions in the post-Iqbal data window. Again depending on the nature of the suit, these figures represent between one-fourth and two-fifths of the cases that fail to reach discovery on at least some claims in the post-Iqbal data window.

 

Theodore Eisenberg and Kevin M. Clermont, Plaintiphobia in the Supreme Court, 100 Cornell L. Rev. 193 (2014)

 

http://cornelllawreview.org/files/2014/11/100CLR193.pdf  

 

Through the years, debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this Article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations of pretrial disposition during the last four decades or more, had a markedly anti-plaintiff impact.

 

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  1. Pleading

The recent years’ headline event for civil procedure was the Twiqbal tandem on pleading. The great majority of academics lamented what they saw as an unjustifiable revolution. But some defended the two decisions as a beneficial policy change in the pursuit of efficiency—or even as a pronouncement representing no real doctrinal or practical change, with a few backing up their position by saying that they could empirically show the real-world effects to have been inconsequential. Most prominently among the latter, the Federal Judicial Center reported that the Court’s cases had no discernible effect on outcomes.

The FJC’s studies looked at the electronic records in federal civil cases (excluding prisoner and pro se cases) from twenty-three of the busiest districts dispersed across the country in search of motions filed promptly, or decided, during two sets of multi-month periods around 2006 and 2010.31 Not unlike the summary judgment study, the FJC’s new studies showed, on a case level, a substantially increased number of defendants’ motions to dismiss for failure to state a claim, the percentage of cases that involved one or more such motions having shot up by more than half from 4.0% in 2006 to 6.2% in 2010.32 After some manipulation of the data, the studies showed, on a motion level, no statistically significant change in the rate of granting dismissal or in the rate of giving grants that terminated the case.33

That finding of more or less steady dismissal rates—in a study with a narrow time focus on a purely defensive weapon, prepared during intense controversy over Twiqbal—has generated an inference that goes beyond the summary judgment discussion and that marks the spot where the pleading debate goes off the tracks: the inference being that plaintiffs were not hurt by Twiqbal. But that inference is simply implausible. The Court’s decisions aimed at kicking some plaintiffs out of court. Major anti-plaintiff signals of general procedural import emanating from the nation’s highest court should have some effect. …

 

Pp. 200-201

 

Figure 2 shows the pro se effect in two case categories heavily impacted by Twiqbal. The line for the pro se cases being higher means that counseled defendants do better against pro se plaintiffs than otherwise. More to the point, looking beyond the line’s height, we find telling the sharp uptick after Twombly. It appears that Twombly affected the cases with pro se plaintiffs against counseled defendants even more heavily than the other cases in these case categories. Furthermore, those pro se plaintiffs showed a slower reaction to Twombly, particularly in employment cases. That is, those pro se plaintiffs act as a control group that is comparatively immune to selection effect, because those plaintiffs more slowly adjust by ceasing to pursue some of the cases that could not surmount the new barrier.45 Eventually, however, they join the ranks of potential plaintiffs who select only stronger cases to pursue.

 

[graphs]

 

Pp. 206-207

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CONCLUSION

If the Supreme Court wanted to help out defendants through its summary judgment trilogy and Twombly-Iqbal pleading decisions, the data indicate that the Court has succeeded. Whether its moves were wise ones, however, remains an open question.

 

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About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: http://stafnetrumbull.com Visit the Google+ Page: https://plus.google.com/+ScottStafne Visit the Facebook Page: https://www.facebook.com/scott.stafne.75   *Web Developer: David J. Posel
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