Friday, March 28, 2008
Over at the California Blog of Appeal, Greg May asks:
Can you move for a new trial when your case was disposed of by summary judgment? This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial?
Greg answers, Yes, of course. --RR
Thursday, March 27, 2008
Tulane Prof. Steven Childress has a forthcoming article in the Review of Litigation titled Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury after Unitherm and Amended Rule 50. Click here to download the latest draft from SSRN or read on for the abstract:
The article considers recent case law and an amendment to Rule 50 of the Federal Rules of Civil Procedure. Both change the possibilities and effect, on appeal in federal courts, of procedural lapses and waivers by litigants who wish to seek review of the sufficiency of the evidence to support a jury verdict, as by appeal of a decision on a motion for judgment as a matter of law. Both the timing and completeness of such motions and preservation of sufficiency error are discussed.
The U.S. Supreme Court in Unitherm enforced a very strict waiver review that found that such error, and even review for new trial, was fully waived and thus not preserved for any appellate review under the circumstances of the case. The newer Rule 50, on the other hand, more generously expands the timing for adequately making such a motion or raising and preserving the sufficiency issue. Together, these changes solve some common trapdoors for litigants and judges, but create new ones or maintain old ones that should still be considered at trial of civil cases in federal court.
Tuesday, March 25, 2008
Click here to read "Federal Question Jurisdiction and the Federal Arbitration Act," posted on SSRN by Northern Kentucky Profs. Richard Bales and Jamie Ireland. The article is forthcoming in the Colorado Law Review, and the abstract follows. --RR
The Federal Arbitration Act gives signatories to an arbitration agreement the right to have that agreement specifically enforced. The FAA does not, however, confer federal subject matter jurisdiction. Absent federal jurisdiction, a party seeking enforcement under the FAA must sue in state court. State courts, however, are far more likely than federal courts to use state contract law doctrines to avoid enforcing arbitration agreements. This has led parties seeking enforcement to look for other ways into federal court.
Some federal courts have found jurisdiction over enforcement actions when the underlying dispute involves a federal question, such as when an employer is seeking to enforce an arbitration agreement against an employee who has sued for employment discrimination under Title VII. These courts reason that the text and history of the FAA require courts to "look through" the dispute about enforceability to the underlying dispute. Other courts, however, have concluded that such a "look through" is inconsistent with the text and history of the FAA and with the well-pleaded complaint rule.
Our article explains that the difficulty of choosing one approach over the other is exacerbated because the same interpretive tools can be marshaled in favor of each approach, and because the arguments made using each interpretive tool are not mutually exclusive. Our article argues that courts should adopt the "look through" approach.