May 30, 2008
“Stark Contrasts Between McCain and Obama in Judicial Wars”
This piece by Neil A. Lewis was in yesterday’s New York Times. Lewis makes the point that, in McCain’s 22 years in the Senate, he has not been a major player in the judicial wars. He has supported recent judicial nominees, including Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, and will likely select similar conservative nominees if he is elected. On the other hand, Obama is a lawyer and has a substantial interest in the courts and the law. He has opposed the recent judicial nominees and when asked what he would look for in a Supreme Court justice, he held up a picture of former Chief Justice Earl Warren. To read the entire article, click here.
May 29, 2008
Personal Jurisdiction in the Clemens case
Yesterday's Houston Chronicle discusses defendant's (McNamee's) territorial-jurisdiction challenge in the Roger Clemens defamation case. Arguing that McNamee purposefully directed his tortious conduct at a known Texas resident, Clemens's lawyer was quoted as saying "It's only fair McNamee should have to defend himself in Texas. . . . His conduct intentionally harmed Roger Clemens in this state and he should face a Texas jury." Seems like a fairly straightforward Calder analysis, at least by description of the lawyer who needs it to be.
May 28, 2008
The Significance of Philip Morris v. Williams
In the most recent issue of the NYU Survey of American Law, Professor Michael Allen, Stetson University College of Law, published Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance of Philip Morris v. Williams. Part I of the article discusses the ways in which the Court limited punitive damage awards prior to Philip Morris. Part II analyzes the Philip Morris decision itself in which the Court held that a jury award of punitive damages may not punish a defendant for conduct directed at non-parties. Part III addresses how Philip Morris will affect punitive damages as a remedial device, its impact on state regulation of punitive damages, and its impact on juries. Part IV concludes the article by discussing what constitutional issues may arise in the near future. A full-version of the article may be read here.--Counseller/nm
May 26, 2008
New Redish article on construing The Rules Enabling Act
Prof. Martin Redish and Dennis Murasko recently posted The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation. The article will appear in Volume 93 of the Minnesota Law Review, and its abstract follows:
The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation. The Act, moreover, prohibits the Court from promulgating rules affecting litigants' substantive rights. Courts and commentators have struggled for more than seven decades since the Act's passage to define the boundaries of what rules the Court can and cannot promulgate.
In this Article, we undertake to explain the lack of success in defining the contours of rulemaking under the Act and at the same time to glean from our analysis of the Act an important lesson in statutory interpretation. We offer two explanations, operating simultaneously, for why a definitive interpretation of the Act has eluded courts and scholars. First, and perhaps most importantly, the Act's sparse language is arguably susceptible to three alternative and textually plausible constructions. Second, previous constructions of the Act did not pay sufficient attention to statutory interpretation theories in applying one theory or another in interpreting the Act. We conclude that a proper understanding of the theory of statutory interpretation dictates adoption of only one of these constructions - what can be called the incidental effects approach. Under this interpretive model, identified most closely with the Supreme Court's often criticized decision in Burlington Northern, the Court is allowed to promulgate rules that do impact substantive rights, but do so only incidentally - in other words, when the primary goal of the rule is to regulate procedure.
We defend this interpretation of the Act by employing a theory of statutory interpretation that directs the interpreter to construe ambiguous text in light of objectively determined background purposes forming a foundation for a particular legislation. Drawing on the pioneering work of Professor Stephen Burbank, we recognize two purposes undergirding the passage of the Enabling Act. Our interpretation promotes both purposes, not elevates one at the expense of the other. In fact, this is where commentators (Professor Burbank among them) have gone astray in their suggested interpretations - they used statutory interpretation theories unmoored from the twin purposes of the Act.
In the end, the lesson for statutory interpretation theory largely parallels the lesson to be learned in construing the Rules Enabling Act. In both, when dealing with ambiguous legislation, it is common sense and an attempt to translate underlying purpose, objectively determined, into legal reality, rather than narrow, shortsighted adherence to textual literalism or legislative history, that more effectively further the goals of representative democracy.