Thursday, October 29, 2015
Friday, October 23, 2015
Fordham Law Review, October 2015 (Vol. 84, No. 1) includes six articles by Fordham faculty on the United States Supreme Court's June 2015 Obergfell v. Hodges decision and other articles:
- Perspectives on Marriage Equality and the Supreme Court (The Editors)
- The Power of Dignity (Elizabeth B. Cooper)
- Obergefell's Conservatism: Reifying Familial Fronts (Clare Huntington)
- Roberts, Kennedy and teh Subtle Differences that Matter in Obergefell (Joseph Landau)
- Hail Marriage and Farewell (Ethan J. Leib)
- Race, Dignity, and the Right to Marry (R. A. Lenhart
- Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality (Catherine Powell)
- Procedural Triage (Matthew J. B. Lawrence)
- The Sum of its Parts: The Lawyer-Client Relationship in Initial Public Offernings (Jeremy R. McLane)
- Student Notes
The New York Journal of Law & Business (Vol. 11, No. 4) includes:
- Proceedings of the 2014 Fall Conference: The Future of Class Action Litigation: A View from the Consumer Class
- Introductory Note (Peter L. Zimroth)
- Welcoming Remarks (Zimroth, Dean Trevor W. Morrison)
- Panel 1: The Current State of Consumer Class Action
- Panel 2: Reforming the Consumer Class Action
- Panel 3: Alternatives to the Consumer Class Action
- Panel 4: Roundtable Discussion: Consumer Class Actions and the Future of the Class Action
- Panel 5: Keynote Address: The Hon. Alex Kozinski, Chief Judge, U. S. Court of Appeals for the Ninth Circuit.
- Article: An Empirical Look at Consumer Class Actions (Brian T. Fitzpatrick & Robert C. Gilbert
- Student Comments
Virginia Law Review, October 2015 (Vol. 101, No. 6) includes:
- Patent Trolls and Preemption (Paul R. Gugliuzza)
- Corporate Inversions and the Unbundling of Regulatory Competition (Eric L. Talley)
- Taming Title Loans (Ryan Baasch)
Wednesday, October 21, 2015
The general rule in American jurisdictions does not permit a victorious party to recover attorney's fees or litigation costs from the losing party. There are exceptions to this rule -- courts typically enforce fee-shifting provision in contract and most if not all states have statutes that allow prevailing parties to recover fees in some situations. Some such statues provide for "one-way" fee shifting whereby only a prevailing claimant may recover fees. Others are "two-way" fee shifting statutes allowing either plaintiff or defendant to recover.
Courts have created rules on fee-shifting deisgned to achieve fairness and fidelity to the American rule, however, these rules can and have led to "a second major litigation," or to "years of protracted appellate review." Perdue v. Kenny A., 559 U.S. 542, 572 (2010) (Breyer, J., dissenting). One such rule requires attorneys to segregate attorney's fees and expenses between recoverable and unrecoverable claims. For example, if a party sues in contract and tort in a jurisdiction that enforces a fee-shifting provision in the contract but does not provide for fee-shifting in tort, a prevailing plaintiff must segregate the nonrecoverable attorney's fees incurred solely to prosecute the tort claim from the recoverable fees incurred for the contract claim and fees incurred as to both claims. See e.g., Tony Gullo Motors, Inc. v. Garcia, 212 S.W.3d 299 (Tex. 2006). Likewise, when the prevailing party wins only in part, the party must segregate fees between the successful and unsuccessful claims to the extent fee-shifting applies as to the successful claims. See Fox v. Vice, 563 U.S. 826 (2011).
What happens when each side in a lawsuit prevails in part with each party prevailing on a claim entitling it to attorney's fees pursuant to a fee-shifting provision? A California court answered this question in Sharif v. Mehusa, Inc., No. B255578, 2015 W.L. 5969679 (October 14, 2015, Cal. Ct. App.). In this case, the plaintiff prevailed on her state Equal Pay Act claim and the defendant prevailed on its plaintiff's overtime and wage claim. Each party filed a motion for attorney's fees under the applicable statute. The trial court awarded both sides its attorney's fees as to the claim upon which each prevailed, with the plaintiff obtaining a small fees award after offset.
The California appellate court affirmed. The court held that "when there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action." Ms. Sharif argued that because she prevailed on the Equal Pay Act claim and received a money judgment on that claim, she was the "prevailing party," and was subject only to reduction in the fee claim for the unsuccessful overtime and wage claim. The court agreed Sharif was a prevailing party in part, but added that Mehusa, Inc. was a prevailing party also as to a claim including a two-way fee shifting provision. The court stated it made no sense for the defendant to be able to recover on the overtime and wage claim if the two claims here were brought in separate actions but not if the two claims were consolidated into one action.
We cover attorney fees recovery in our Damages class. It is important for new attorneys to develop good habits about tracking time in cases, even when representation is for a flat or contingent fee. I cannot imagine anything more mind-numbing (or more filled with ethical risks) than having to recreate an attorney's fees statement on short notice at a lengthy and complicated case's end. Here is a recent essay with useful tips about substantiating attorney's fees in litigation.
Thursday, October 15, 2015
Jason Mazzone at Balkinization reports a call for papers for a two-day symposium to be held in april 2016, titled, "Constitutional History: Comparative Perspective." The symposium is sponsored by the University of Illinois Law Review and others. Click here for Mazzone's full post.
Wednesday, October 14, 2015
Tuesday, October 13, 2015
This past April, I reported on this blog that a Texas district judge had been publicly admonished by the State Commission on Judicial Conduct for posting on her Facebook page information about a case she was trying. The district judge appealed that reprimand and on September 30, a three-judge Special Court of Appeals found that the Commission, "failed to meet its burden of proving the [Judge] violated the Canons of Judicial Conduct or Article V, Section 1-a(6)(A) of the Texas Constitution." The Special Court dismissed the Commission's public admonition and found the Judge not guilty of all charges.
- Judge Admonished for Facebook Post
- Judge's Comments Raise Ethics Questions
- Tennessee: Judge's Facebook Use Does Not Lead To Recusal
- Facebook Friendship Leads to Disqualification
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
California Law Review, Volume 103, No. 5, (October 2015) includes:
- Waiving Disqualification: When Do Securities Violators Receive a Reprieve? (Urska Velikonja);
- Stare Decisis in the Second-Best World (Randy J. Kozel);
- Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor (Adrienne D. Davis); and
- Marital Supremacy and the Constitution of the Nonmarital Family (Serena Mayeri); and
- Two Student Comments.
Georgetown Law Journal, Volume 103, No. 6, includes:
- Cognative Cleansing: Experimental Psychology and the Exclusionary Rule (Avani Mehta Sood);
- Admin (Elizabeth F. Emens);
- Patent Conflicts (Tejas N. Narechania); and
- Three Student Comments.
Michigan State Law Review, Volume 2015, No. 2, includes articles from a symposia on net neutrality, including:
- Is There Anything New to Say About Network Neutrality? (Adam Candeub);
- Aereo: From Working Around Copyright to Thinking About Cable Box (Annemarie Brady);
- Aereo and the Problem of Machine Volition (Bruce E. Boyden);
- Defining the Limits of the Application of the Statutory Experimental Use Exception Within the Agricultural Biotechnology Industry (Jennifer Carter-Johnson);
- Agricultural Biotechnology: Drawing on International Law to Promote Progress (J. Janewa Osei-Tutu);
- Regulatory Competitive Shelters as Incentives for Innovation in Agrobiotech (Yaniv Heled)
- Living with Monsanto (Daryl Lim);
- Net Neutrality: Something Old; Something New (Justin (Gus) Hurwitz);
- The Risks and Rewards of Network Neutrality Under Sec. 706 (John Blevins);
- What's New in the Network Neutrality Debate (Rob Frieden);
- Patent Pledges: Between Public Domain and Market Exclusivity (Jorge L. Contreras);
- The Right to Innovate (Andrew W. Torrence & Eric von Hipple);
- Incongruities of Real and Intellectual Property: Economic Concepts in Patent Policy and Practice (Thomas D. Jeitschko); and
- Leaps, Metes, and Bounds: Innovation Law and its Logistics (James Ming Chen).
South Texas Law Review, Volume 56, No. 2, includes:
- Challenging Class Certification at the Pleading Stage: What Rule Should Govern and What Standard Should Apply? (Timothy A. Daniels);
- To Quote or Not To Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda (Maureen Johnson); and
- Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets (D. R. Jones).
- Three Student Comments
Monday, October 12, 2015
There are three law review symposia being held this week -- two in Detroit and one in Manhattan (NY). They are:
On Thursday, October 15, the Cardoza Law Review is hosting "Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court" at the law school campus. The symposia includes four panels covering John Roberts and Constitutional Interpretation, John Roberts and the Judicial Process, The Administrative Role of the Chief Justice, and John Roberts and Statutory Interpretation. For more information, including how to RSVP, click here.
The Wayne Law Review will host its Fall Symposium, "Corporate Counsel as Gatekeepers" at the law school campus in midtown Detroit. The symposium includes an in-house counsel panel, an academic panel and a practitioner panel. Tony West, former associate U.S. attorney general and general counsel for PepsiCo, is scheduled to provide the keynote address. For more information, click here.
Also, the Detroit Mercy Law Review is hosting its Fall Symposium, "The Public Trust Doctrine: An Ancient Tool for Protecting the Great Lakes from New Hazards" at the law school's campus in downtown Detroit. The law review's website shows six participants on the program.
Tuesday, October 6, 2015
A school in upstate New York has been sued by the Department of Justice for refusing to allow a disabled student to bring his service dog to school without a handler provided by the child's family. An article about this suit can be found here. A copy of the complaint is here.
Law review commentary on the use of service dogs in school would be welcome.
Mitchell H. Rubinstein
An interesting Oct. 5, 2015 Findlaw article, here raises the question how old to too old to practice law.
As the article notes, many law firms have a mandatory retirement age of 65. Such mandatory retirement policies would expressly violate the ADEA unless the ADEA does not apply. As the article alludes to, the legal question is whether such partners are employees. If they are, the ADEA applies. If they are not, the ADEA does not apply. Though there has been litigation on this issue, it is not finally resolved.
As the article notes, mandatory retirement of lawyers appears ridiculous when Supreme Court Justices routinely serve into their 80's.
Mitchell H. Rubinstein
Wednesday, September 30, 2015
The Texas A&M Law Review is hosting a symposium, "Farm to Table: Agriculture Law in the Era of Sustainability" on October 30 at the school's Amon G. Carter Lecture Hall. The keynote speakers are Dr. Mark Hussy, Dean of Agriculture & Life Sciences at Texas A&M and Professor James Chen, Michigan State College of Law. For more information, look here.
Monday, September 28, 2015
In what may appear to be completely contradictory, union membership is surging in Indiana after that state passed a Right to Work Law, here. As the cited article states:
Indiana had 299,000 union members last year, up from 249,000 union members in 2013, according to the Bureau of Labor Statistics. Union membership, which dipped as low as 9.1 percent of the workforce in 2012, was back to 10.7 percent of the workforce in 2014.
And the number of Indiana workers who are represented by unions in their workplace, but not necessarily dues-paying members, rose to 335,000 last year, which is 12 percent of the total workforce.
The rhetoric is that unions – which represented a quarter of all American workers as recently as 1980 – are dying, a relic of a bygone age. But Northwest Indiana and much of the state remain bastions of the labor movement.
Mitchell H. Rubinstein
The New York Law School Law Review is hosting a symposium, "Storming the Court: 25 Years After H. C. C. v. Sale" on October 16 at the law school's Events Center. This description comes from the Law Review's website:
In the early 1990s, well before the War on Terror, Guantanamo Bay served as a detention camp for three hundred HIV-positive refugees who had fled a military coup in Haiti. In a remarkable human rights case chronicled in the book Storming the Court (Scribner) by Brandt Goldstein, law students at Yale and their professor, Harold Koh – himself the son of refugees – sued the U.S. government for the Haitians’ freedom. The case, which ultimately involved Kenneth Starr, the Justice Department, the Pentagon, and Presidents George H.W. Bush and Bill Clinton, went to trial in federal court in Brooklyn, resulting in the Haitians’ release – and the first ruling in history that aliens held at Guantanamo are entitled to constitutional due process.
Almost 25 years later, with Guantanamo still looming large in the legal and foreign policy landscape, this symposium brings together the judge in the case, the Honorable Sterling Johnson, Jr. (E.D.N.Y.), as well as Professor Harold Koh (former Legal Adviser at the State Department), government attorneys, human rights lawyers and advocates, private practitioners, and seven of the most prominent former students (now all human rights advocates, lawyers and/or academics themselves) to explore the enduring impact of this extraordinary litigation.
Monday, September 14, 2015
The Minnesota Law Review will host its Fall Symposium, "Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review," on October 2 at Walter F. Mondale Hall on the law school campus. Daniel Farber (Cal-Berkeley) will give the keynote address. Symposium topics include "The Right to Counsel," "Strict Liability," "The Fourth Amendment," and "Critical Race Theory and the Supreme Court." Click here for more information.
Tuesday, September 8, 2015
University of Illinois Law Review has published an online symposium with four essays in response to Alexander Tsesis's book, Free Speech Constitutionalism. The essays are collected in the most recent issue of the journal's online companion, Slip Opinions. Contributors are Mark A. Graber, David S. Han, Helen Norton and Margot E. Kaminsky.
California Law Review and the American Constitution Society is hosting a panel discussion, "What to Make of Obergefell?: A Moderated Discussion with Professor Melissa Murray" this week. The panel discussion will be September 10 at the Boalt Hall campus and will address the Supreme Court's decision in Obergefell v. Hodges. Participants include Elizabeth Gill, ACLU of Northern California; Alexandra Robert Gordon, California Deputy Attorney General; and Maxwell Pritt, Boies, Schiller & Flexner, L.L.P.
Sunday, September 6, 2015
Friday, September 4, 2015
Richard Carlson (South Texas) has posted, "A Child's Right to a Family versus a State's Right to Institutionalize the Child," on SSRN. Carlson's article explores tension in the United Nations Convention on the Rights of the Child between institutionalization and family placement as options for children without parents or guardians. Carlson acknowledges the Convention adopts a "child's best interest" standard toward placement and embraces the benefits of raising children in a "family environment." However, Carlson argues that the Convention's grant of broad discretion to states to institutionalize children, "cannot be squared with a 'child’s best interests,' the 'family environment' ideal or modern child development theory.
Carlson's abstract reads:
Convention on the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law -- a child's right a family environment versus the state's discretion to institutionalize the child -- and I explore the possible reasons for the contradiction. A chief reason for the contradiction is anxiety about intercountry adoption. I propose some ways to resolve the contradiction and to pave the way for the creation of a true right to a family, including by placement in a permanent substitute family.
Thursday, September 3, 2015
Cass Sunstein (Harvard) has posted his essay, "In Praise of Law Reviews (And Jargon-Filled, Academic Writing)," on SSRN. The abstract reads:
Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”
Sunstein's essay is forthcoming in the Michigan Law Review.
Thursday, August 20, 2015
Daniel Nazer at techdirt.com reports that if patent litigation cases were evenly distributed among the 94 federal district courts in the United States, each court would have 33 such cases filed so far this year. As it happens, the Eastern District of Texas has seen 1,387 patent cases filed this year in that particular jurisdiction.
How did the Eastern District become the mecca for patent litigation filings? Nazer's article, "Why Patent Trolls Love East Texas... And Why Congress Needs To Fix It," tells that story.