May 10, 2007
The Thursday Interview Hiatus
The Thursday Interview is going on summer hiatus. With everyone going their different ways, it has become quite difficult to schedule an interview every week. Instead, we'll just try for a few interviews over the course of the summer. Please do continue to let us know about the projects you're working on this summer so that we can make them the subject of a post or interview.
May 9, 2007
Do you know how many times I've caught myself missing my timesheet since I left private practice four years ago? Zero-point-zero-zero (nod to Maya Rudolph). There are a few things about the practice of law I miss, but, on the whole, teaching beats practice all to hell. The vast majority of the tens of thousands of law students in this country will practice law in some capacity immediately upon graduation. I've often wondered what my choice to teach says to my students about the practice of law and the life that awaits them.
Recently, US News & World Report issued its List of Best Careers 2007. University professor is one of the best careers while attorney is one of the "most overrated" careers. Here's why USNWR thinks being an attorney is overrated:
Most lawyers' lives bear little resemblance to those of the hotshots on Law and Order. Even litigators spend lots of time drafting or poring over sheaves of detailed information and negotiating with other lawyers prone to contentiousness and chicanery. And most lawyers rarely go to trials, working instead as transactional attorneys who need to bill 2,000 hours a year or more to meet the firm's targets. That can mean long evenings drafting lengthy, airtight contracts or other documents. In the corporate world, many lawyers find little fulfillment and burn out.
Sound familiar? This description of the profession stands in stark contrast to what drew students to the profession in the first place.
Many college students decide to go to law school by default. After all, a legal career promises prestige, money, and the chance to use the law to make a difference in society. Many aspiring attorneys also picture themselves as the lawyers on TV, making scintillating closing arguments in an expensive suit before a rapt jury.
Are USNWR's descriptions of the practice and students' reasons for wanting to become attorneys accurate? If so, what, if anything, should/can we as law professors do about this disconnect?
May 8, 2007
A second bite under Parsons
Under the Anti-Injunction Act's relitigation exception, a federal court can enjoin a pending state-court proceeding if that proceeding involves an issue that the federal court has previously resolved. In Parsons Steel, the Supreme Court invoked the Full Faith and Credit Act to sensibly prevent two bites at the preclusion/injunction apple.
For example, suppose A sues B in federal court. The federal court favorably resolves an issue for B. A then sues B again in state court. Under Parsons, B has two options, not three, for giving teeth to the federal court's prior ruling. Of course B can raise a preclusion defense in state court. Or, under the relitigation exception, B can ask the rendering federal court to enjoin the state-court proceeding, to the extent A relies upon issues actually resolved by the federal court. But what B cannot do is raise the preclusion defense in state court, lose, and then ask for the federal court to enjoin the state court proceeding. This is because the state-court ruling on the preclusion issue is itself an issue-preclusive ruling that binds the federal court.
In the recent Duffy case, two bites were available. There B successfully moved to dismiss the federal suit based on a forum-selection clause that selected England. A refiled in state court, not England. Generally, then, B would have two options. First, B can move to dismiss the state-court suit on grounds that the federal dismissal is issue preclusive. Or second, B can return to federal court and seek an injunction to prevent relitigation of that particular issue. In effect, the relitigation exception allows B to choose which court will resolve the preclusion issue. But B did both. After the state court denied the motion to dismiss, B returned to federal court. The Fifth Circuit held that, because the denial in state court was not a final judgment under state law, there was no Parsons bar to the return to federal court.
This result surprises me, as does the rigid analysis. Even if the judgment was not "final" under Texas law, the exceptions to the Anti-Injunction Act are supplemented by the equitable principles that govern injunctive relief and the principles of comity surrounding the Anti-Injunction Act. Even if an injunction may issue, that's not to say it must. B can obtain federal review in the first instance by seeking an injunction from the federal court when A files the second suit. B can obtain federal review by seeking Supreme Court review, the federal issue being the preclusive effect of a federal judgment. But even where the state-court judgment does not trigger the formal Parsons bar, the appropriate balance of comity and efficiency does not favor allowing B to try twice. The lesson for litigators, I suppose, is that if you time things right, you can get two bites at the apple. Raise your preclusion defense in state court, but when you lose be sure to ask the federal court to overrule that ruling before the state ruling becomes technically "final" under state law. -RR
May 7, 2007
For the latest on CAFA, check out the Fifth Circuit's opinion last week in Preston v. Tenet Healthsystem, addressing the local controversy exception, and Prof. Marcus's article, Erie, the Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction, which you can access here thanks to Benjamin Spencer.