Friday, March 23, 2007

In case you missed it

Items of interest this week:

  • Howard Wasserman posts his third paper in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The paper, titled Jurisdiction, Merits, and Non-Extant Rights, appears here
  • Over at Scotusblog, David Stras describes his forthcoming article,  Are Senior Judges and Justices Unconstitutional, an article he coauthored with Ryan W. Scott.   The article will appear in this month's issue of the Cornell Law Review.
  • In resolving a trademark dispute, the Seventh Circuit notes "Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative." Howard Bashman covers the case here and here.

March 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 22, 2007

The Thursday Interview

Listen to this week's installment of the Thursday Interview by clicking the link at the bottom of this post.  This week's interview is with Gil Seinfeld of the University of Michigan Law School about his most recent article, The Puzzle of Complete Preemption, published in the Pennsylvania Law Review.  His article was the subject of a post earlier this week, but it certainly warrants additional discussion.  Thanks to Gil for a great interview.

--Counseller

Download seinfeld_preemption_interview.mp3

March 22, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2007

Law Review Articles Irrelevant?

Many of you probably have already read the article in the NY Times about the decreasing significance of law review articles to judges.  The folks over at Law School Innovation have linked to much commentary on the topic here.   Mark Osler tiptoes gingerly around the issue elsewhere, writing:   

Here are the dumb things law professors are doing to make sure that their work has no impact on the broader society, solves no problems, and avoids relevance to anyone save those in the legal academy:

1) Too many articles are obsessed with topics which lack any realistic nexus to a real-life problem. For a while, many top academics were fascinated by "shaming" punishments, while many ignored the sentencing guidelines and state practices. Shaming was never going to come back; meanwhile injustice permeates much of the sentencing structure in many jurisdictions and no one cares much.

2) There is no dialogue betweeen the legal academy and decision-makers. Many professors send their articles to other professors, but few send them to judges, congressmen, and practitioners. Their audience is not anyone with power to create change, but a handful of other law professors.

3) Law articles are far too long. That is one reason so few people read them. It simply isn't true that an article under 100 pages isn't "serious."

4) The fervency for substantiation is silly. 800 footnotes to other law reviews does not make an article more true-- it just means someone else made a similar small point previously. The text should be more important than the footnotes, because that is how people read.

5) The cycle of writing to publication of an article is one to two years, making it impossible to address an issue which moves fast.

March 21, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2007

Rule 4 v. Rule 5 Service

At the risk of being deemed a heretic, I must admit that FRCP 5 (Serving and Filing Pleadings and Other Papers) doesn't typically get my juices flowing. The Ninth Circuit issued an opinion on Friday--Employee Painter's Trust v. Ethan Enterp. Inc.--in which it discussed service under Rules 4 and 5 and affirmed the district court's entry of a $1 million default judgment.  Sound sexy?  Well, Rory and I actually spent quite a bit of time discussing the case this morning and concluded it might be a good teaching tool to highlight the basic difference between service under Rules 4 and 5.

Several trusts filed suit against a floor covering company and some of its officers seeking delinquent contributions.  The defendants generally appeared, but two months later their attorney withdrew.  The defendants did not replace their attorney.  The failure to do so violated a local rule requiring corporations to be represented by counsel at all times, and the local rule permitted the entry of a default judgment for failure to comply.  Three days after the defendant's attorney withdrew, the trust's motion to amend their complaint was granted.  The trusts attempted service on the defendants by mail and in person and ultimately were permitted to attempt service by publication.  The defendants failed to respond and the district court entered a default judgment against the defendants.  Weeks later, the defendants filed a Rule 60(b) motion seeking to set aside the default judgment.  The district court denied the motion.   

On appeal, the defendants relied primarily on alleged deficiencies in service to overturn the default judgment.  The court held that service of the amended complaint was governed by Rule 5 (not Rule 4) and that, therefore, the trust's service of the amended complaint by mail was adequate.  Rule 5 governed, the court said, because the amended complaint was a "pleading subsequent to the original complaint."  Rule 5(a) only requires service of an amended complaint according to Rule 4 where a party is in default for failure to appear and the pleading asserts new or additional claims for relief.  Because the defendants had already generally appeared, the defendants were not in default and, therefore, were subject to service under Rule 5's service by mail provision. 

A local rule for the Western District of Washington raises a potentially interesting wrinkle that the court did not discuss.  The local rule states:

[a corporation's] failure to obtain a replacement counsel by the date the withdrawal is effective may result in dismissal of the corporation's claims for failure to prosecute and/or entry of default against the corporation as to any claims of other parties."

The defendants did not obtain replacement counsel by the time their initial attorney withdrew.  Does the failure to do so place the defendants in default requiring service of an amended complaint under Rule 4?  Or, even if they are in "default" for not having an attorney under the local rule, are the defendants "in default for failure to appear" as required by Rule 5(a) before service of an amended complaint under Rule 4 is required? --Counseller

March 20, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2007

The Puzzle of Complete Preemption

Gil Seinfeld recently published The Puzzle of Complete Preemption in the Pennsylvania Law Review.  It's helpful, concise, and thoughtful.  Below is an excerpt from the introduction:

One can imagine a jurisdictional doctrine that treats preemption cases specially on the ground that the interest in uniformity features prominently when such statutes are at issue. When Congress preempts state law, one effect of its doing so is to homogenize the rule with which regulated entities are expected to comply. And we might want to make it particularly easy for cases calling for the interpretation of such statutes to get into the federal system, where they will be decided by courts that are thought most likely to interpret the law uniformly, thereby helping to secure the homogeneity Congress means to provide.
But the Court has declined to connect the doctrine of complete preemption to the basic policies relevant to the existence and scope of federal question jurisdiction, including the interest in a uniform interpretation of federal law. Indeed, the complete preemption cases offer nothing in the way of systematic thinking about the uniformity interest and how it relates to federal jurisdiction. Complete preemption doctrine thus presents a puzzle: how and why has the Court come to afford the covered cases special jurisdictional treatment, and why is a doctrine that appears to call for justification by reference to foundational jurisdictional policies--the uniformity interest in particular--seemingly disconnected from them? This Article offers a close analysis of this unusual rule of federal jurisdiction in an effort to answer these questions. It makes the case that, due to its neglect of the core values underlying the vesting of federal question jurisdiction in the federal courts, the Court has established a doctrine that is unstable and unsound. This Article argues, further, that the doctrine might be satisfyingly remodeled by shaping it around the interest in a uniform interpretation of federal law.

Trevor Morrison's response to the article can be found here. -- RR

March 19, 2007 | Permalink | Comments (0) | TrackBack (0)