Friday, March 14, 2008
This Supreme Court term hasn't yielded many noteworthy decisions in the areas of jurisdiction and procedure. Nor have the petitions to watch at SCOTUSblog provided much to get excited about. The most recent edition describes a petition from a 9th Circuit decision that might interest our readers. The question presented in Collins v. D.R. Horton, Inc. is: Whether a court or an arbitrator should determine the preclusive effect of a prior court judgment on an arbitration?"
Petitioner's Statement of the case begins:
This petition raises a long-standing inter-circuit conflict on an important question under the Federal Arbitration Act: Whether the court or the arbitrator determines the preclusive effect on the arbitration of a prior court judgment. Preclusion doctrines reflect fundamental principles of common-law adjudication that command respect for the decisions of courts in conclusively resolving issues and claims. The effect of court decisions should be determined by courts, not arbitrators whose philosophical or economic interests may favor retrying settled matters. This split among the circuits under a statute of nationwide importance should be resolved by this Court.
You can access links to the 9th Circuit opinion, the cert. petition, and the opposition brief here. --RR
Wednesday, March 12, 2008
It's probably time to bookmark precydent.com. It provides free, searchable access to law and currently advertises that its database contains 445,450 opinions and 2501 statutes. I'll be interested to get feedback on the site from our non-professor readers (who don't have free access to Westlaw and Lexis).
Tuesday, March 11, 2008
On SSRN, Howard Wasserman recently posted Video Evidence and Summary Judgment: The Procedure of Scott v. Harris. The article now appears in Vol. 91 of Judicature, and the abstract follows:
In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation or subjective analysis. For the majority, there was no need for a fact-finder to review the video or to compare the video with the competing testimony of eyewitnesses, because what the majority saw in the video was true. The reality, however, is that video evidence is not so singularly objective or definitive in its meaning and message; instead, video presents one perspective on events and is subject to the interpretation and close analysis reserved for the jury at trial. This essay critiques the Court's approach in Scott, both the immediate decision and with an eye on the increasing use of video recording of encounters between police and the likelihood that video will be an increasingly common element of civil rights litigation.