This is a really good opinion by Judge Tallman.
It's a classic Erie issue. One that Judge Tallman resolves clearly and with a great deal of erudition. If one of my students wrote it for my civil procedure class, I'd definitely give it an A. Indeed, I'm thinking about telling my students to read the thing if they want further insight (or clarity) into what you're supposed to be doing in an Erie analysis. It's that good.
The issue is this: Federal common law generally provides that predispute waivers of the right to a jury trial are valid so long as they're knowing and voluntary. By contrast, California law generally holds invalid such predispute waivers.
In a federal diversity suit, which rule applies? Federal law? State law? Something in between?
Judge Tallman answers the question. Smartly.
I want you to read the entire opinion, so I'll somewhat keep you in suspense about the right answer.
But even an A paper can potentially be improved. So I thought I'd share the two questions that I'd pose to a student were they to turn in a paper that mimicked Judge Tallman's analysis:
(1) Judge Tallman grants mandamus relief. He does so without applying the Bauman factors (prejudice, clear error, etc.) that generally govern such relief, holding that "Bauman does not apply in the extraordinary case
where the petitioner claims erroneous deprivation of a jury
Is that really the right rule?
Imagine that a plaintiff demands a jury trial eleven days after it files its complaint, the defendant moves (as here) to strike that demand as untimely, and the district court grants the motion. So plaintiff's now lost its right to a jury trial.
I find it hard to believe that plaintiff is really entitled to have its displeasure with this ruling heard on a writ of mandamus to the Ninth Circuit. Yet under Judge Tallman's theory, that seems exactly the rule, since (as he says) "Bauman does not apply in the extraordinary case where the petitioner claims erroneous deprivation of a jury trial." Which is exactly what plaintiff is claiming.
I would agree that the Bauman factors may often be satisfied when a party is claiming an improper deprivation of a jury trial. There's irremediable prejudice, etc. But I don't agree that these factors are immaterial. Seems to me we still care, for example, whether there's clear error, whether it's an oft-repeated mistake, etc. Otherwise the routine plaintiff in the 11-day jury trial demand case gets its writ heard. Which I don't think is either the rule now nor should become the rule. Otherwise we need to tell the staff attorneys to start getting ready to grant a flood of writ petitions, because lots of cases involve a claim that someone's been improperly denied their right to a jury.
So that's something to ponder.
(2) Judge Tallman holds that, here, federal common law applies (since it's procedural rule), but in creating that federal common law principle, federal courts should apply the underlying state law when that state rule is more protective than the federal common law constitutional minimum. So here, federal common law allows waivers as long as they're knowing and voluntary, but since California is more protective of the federal jury trial right, federal courts sitting in diversity should apply the California rule.
That's a neat resolution. And in the present case, I'm fairly sympatico with it. I happen to like the California rule, so when Judge Tallman both preserves the federal minimum as well as allows states to go beyond it, I find myself smiling at the ultimate result.
But is that really the right legal principle?
I can think of a lot of areas where, under Erie, federal common law (as here) sets a constitutional minimum, state law might go beyond that, and yet it would seem crazy to me to incorporate state law as a result. For example, in federal court, there might be a federal constitutional minimum that you're allowed to have an attorney represent you (e.g., under the Sixth Amendment), or to have that attorney meaningfully speak -- say, for two minutes, or three pages -- on your behalf (e.g., under the Due Process Clause). Say that a state like California passes a law that's more protective of those rights. That law allows you to be represented by ten lawyers of your choosing simultaneously. And, given the importance of the underlying dispute, the state says that each of those ten lawyers has a right to file a brief of a maximum length of 100 pages each.
I find it hard to believe that the federal courts should -- much less should be obliged under Erie -- to follow such a rule. Yet those rules follow the same lines as the present dispute. They're "procedural" rules, so the federal courts generally get to create and apply their own legal principles. Yet they're also "substantive" in a way -- the state court cares deeply about the underlying right -- and the relevant federal common law only establishes a "constitutional minimum". So why doesn't Judge Tallman's theory equally obligate us to follow those (silly) state law procedural rules as well?
I wonder if the better rule is to simply bite the bullet and say that (1) we're allowed to create federal common law here (for the reasons Judge Tallman articulates), and (2) that common law rule is going to be a maximally protective one. Regardless of what particular state law applies. Isn't that a better -- i.e., more protective -- principle? If we're allowed to create our own (good) principle, shouldn't we apply that rule in all cases, not just in ones arising under California law? Especially since we're not obliged (as Judge Tallman concedes) to follow the latter in any event?
Perhaps we're constrained somewhat by precedent. But I wonder if that same precedent -- or logic -- is consistent with Judge Tallman's (admittedly creative) result. Or whether Judge Tallman's approach has a solution to the ten lawyer/lengthy brief hypothetical which seems to raise identical issues to those here.
To reiterate: Judge Tallman definitely gets an A.
But can we make it an A+ without changing the result?