Friday, April 18, 2008
Over at Drug & Device Law, Beck and Herrmann wrote extensively yesterday about judicial notice in the preemption context. It's always interesting for me to read the DDL crew's take on procedural matters as they arise in sophisticated litigation, and it's safe to say those folks are as savvy with the procedural mechanisms as they are with the substantive law. In the linked post, for example, they reevaluated their general strategy of not raising preemption through motions to dismiss (a strategy that arises because of the 12b6 standard), and explained that judicial notice in their world often allows a court to review more relevant stuff than just the pleadings.
Thursday, April 17, 2008
Thanks to the fine folks at SCOTUS Blog you can read the transcript of yesterday's oral argument in Taylor v. Sturgell here. The court had lots of questions for both petitioner and respondent, and the discussion raises the possibility of a remand to determine whether there was collusion between the parties to the first and second suits. There certainly seems to have been a relationship between the parties at some point, but key questions for the Court will be when did that relationship need to exist and what exactly did it need to be for res judicata to prohibit the second suit.--Counseller
Wednesday, April 16, 2008
The Supreme Court will hear argument this morning in Taylor v. Sturgell. The question in the case, which has created a circuit split, is whether a person who was not a party to previous litigation and has no legal relationship to any of the parties can nevertheless be bound by the judgment under the virtual representation strain of res judicata. SCOTUS blog has more information on the argument here, and you can read the underlying opinion of the DC Court of Appeals here.--Counseller
Tuesday, April 15, 2008
The Iowa Law Review recently hosted a symposium on procedural justice. One subtopic was Summary Judgment and Seventh Amendment Concerns. SSRN links appear below to the work of the panelists:
- Professor William E. Nelson, Summary Judgment and the Progressive Constitution
- Professor Edward Brunet, Summary Judgment is Constitutional
- Professor Suja A. Thomas, The Unconstitutionality of Summary Judgment: A Status Report.