Joan E. Steinman

Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation

The Judicial Panel on Multidistrict Litigation (“JPML” or “Panel”) has been functioning effectively for almost 20 years. Indeed, multidistrict consolidation for pretrial proceedings has become essential to the federal courts’ handling of the burden of complex litigation. Yet such consolidation sometimes creates procedural dilemmas of its own. In the last few years, two areas of uncertainty have emerged that interfere with the optimal operation of the multidistrict litigation system. First, courts are perplexed as to the application of ‘law of the case’ doctrine in multidistrict litigation, where cases may fall within the jurisdiction of two or three federal district courts consecutively, having landed briefly in the hands of the JPML, while still other courts may handle certain discovery issues. Second, the cases reflect some confusion concerning which federal courts have appellate jurisdiction over the cases that move among district courts of different circuits. In light of the substantial and growing number of cases drawn into the multidistrict net, these unresolved issues will obstruct and delay the administration of justice.It is the goal of this Article to examine particularly the first of these muddled areas and to suggest how law of the case doctrine should be tailored to fit multidistrict litigation. The necessary starting point is the basic doctrine of law of the case. Part I outlines the contours of the doctrine and details the split among the federal circuits as to how it should be defined and applied. Part II then explains how the content of the doctrine must be adjusted to reflect administrative changes in the handling of cases such as changes of judge, transfer, consolidation, and possible combinations of these three mechanisms. Part II explores, in addition, the threshold question of choice of law that is raised when such administrative changes entail a change of court and the courts involved define the content of the doctrine differently. All of these factors complicate the use of law of the case doctrine in multidistrict litigation. Part III discusses the doctrine in the context of section 1407 litigation, presenting a new synthesis of law of the case to accommodate the peculiarities and fit the needs of multidistrict litigation.

Backing Off Bivens and the Ramifications of this Retreat for the Vindication of First Amendment Rights

In 1983 the United States Supreme Court decided two cases that together constitute a significant retrenchment from the Courts previous position in the Bivens line of cases. In these two newest cases, Chappell v. Wallace and Bush v. Lucas, the Supreme Court substantially raised the barriers to federal court recognition of certain causes of action for money damages arising directly under the Constitution. The Court did so without acknowledging that this was the purpose or effect of its line of reasoning, and without proffering any cogent explanation or justification for this change in the law. Additionally, the Court wrote opinions in these two cases that provide no guidance to lower federal courts on the critical question of how the constitutional adequacy of congressional remedial schemes is to be judged.Part I of the Article, analzyes Chappell and Bush against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that made it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that this raising of the barriers to recovery under the Constitution was not convincingly supported, and enhanced the risk that the constitutional rights of some people, in some circumstances, will be so unenforceable as to violate constitutional minima. In conjunction with this analysis of Chappell and Bush, the Article explores the constitutional theory that underlies Bivens actions. It suggests some specific questions courts ought to address when faced with the issue of whether a legislated remedial scheme should preclude a Bivens remedy. In particular, the Article proposes several matters courts ought to examine when judging whether a legislated remedial scheme is constitutionally adequate.Part II argues in favor of a money damage remedy under the Constitution for violations of first amendment rights. It then discusses a number of Bivens actions brought under the first amendment to the Constitution to illustrate the possible implications of Chappell and Bush. The discussion shows how these recent Supreme Court decisions increase the risk that first amendment rights will be under-enforceable, even unconstitutionally so. Finally, the Article identifies first amendment Bivens cases which remain largely unaffected by Chappell and Bush.