April 3, 2008
"What is the Erie Doctrine?"
Click here to read Cincinnati Prof. Adam Steinman's recent article: What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?). The abstract follows:
As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in large part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. Last Term's decision in Bell Atlantic v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a surprisingly straightforward argument that the Erie doctrine requires federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA)--whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side--strengthens Erie's preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis's Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come.
April 2, 2008
Judge Orders White Lawyers Out of Court
Fulton County Superior Court Judge Marvin Arrington ordered white lawyers out of his courtroom so that he could speak directly to the young black defendants present. Judge Arrington now admits it was a mistake to exclude the lawyers, but he said he was not thinking about racism. He said "I didn't want them to think I was talking down to them; trying to embarrass them or insult them; be derogatory towards them and I was just saying 'Please get yourself together.'" For more information about this story, you can click here and here (includes a video interview with Judge Arrington). For commentary check out the most recent post on the Appellate Law & Practice blog. We can all question the wisdom of sermonizing from the bench or separating client from counsel, but I'm curious if any of the lawyers excluded have actually complained of racial discrimination.--Counseller
April 1, 2008
Underfunded State Courts
Listen to this NPR story about how state courts are trying to provide constitutionally mandated services in the face of significant budget cuts. While all branches of state government are feeling the economic pinch, state courts are hit particularly hard because the volume of litigation tends to increase during economic downturns.--Counseller
March 31, 2008
Review of Arbitration Awards under the FAA
Last week the Supreme Court handed down its opinion in Hall Street Associates v. Mattel. Mattel was Hall Street's tenant in a manufacturing facility. Hall Street filed suit against Mattel for breach of the lease agreement and to indemnify it for environmental cleanup costs. Following a bench trial at which Mattel prevailed on the lease termination issue, the parties agreed to arbitrate the indemnification claim. The district court entered the parties arbitration agreement as an order. The agreement/order granted the district court the power to vacate, modify, or correct the award "where the arbitrator's conclusions of law are erroneous." This ground for vacatur, modification, or correction is not contained in the FAA. The arbitrator decided for Mattel, but the district court vacated the award on the ground that the arbitrator based the decision on an erroneous legal conclusion. The Supreme Court held that the grounds set out in the FAA for vacating and modifying an award are exclusive, even when the parties attempt to change the standard in their arbitration agreement.
The Supreme Court noticed an interesting wrinkle in the case and ordered supplemental briefing on the issue. Should the agreement be treated as an exercise of the district court's authority to manage its cases under FRE 16 since the district court entered the agreement as an order? The Supreme Court did not answer this question, instead remanding the case for the district court to determine whether its "authority to manage litigation independently warranted that court's order on the mode of resolving the indemnification issues remaining in the case."
Wouldn't an affirmative answer to the remaining question raise a number of other questions, especially in cases (unlike Hall Street) involving pre-dispute arbitration agreements? For example, would parties resist arbitration in federal court only to gain sufficient leverage to convince the opposing party and the district court to enter a new, expanded arbitration agreement as an order in the case? Would district courts simply refuse to enter such orders after Hall Street? Would parties want such an order when they don't yet know if the award is favorable? For discussion of these and other questions raised by Hall Street, click here.--Counseller