December 5, 2008
Generalized Grievances & Hein v. Freedom from Religion Foundation, Inc.
Regent University Professor Craig Stern recently posted Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue? on SSRN. Click the article title to download it. The abstract follows:
The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court's prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.
Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.
This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. (And in so doing, the Article finds that constitutional standing has more to do with the meaning of "judicial Power" than with the meaning of "Cases" and "Controversies.")
FRE 502: Attorney-Client Privilege And Work-Product Doctrine
New FRE 502 concerns the attorney-client privilege and the work-product doctrine. It became effective September 19, 2008. Federal Evidence Review provides a reference sheet to navigating this new legislation. Click Here
The attorney-client privilege and work-product act is explored more thoroughly in Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine). This article also includes key links and is a great resource for learning more about this new legislation.--Counseller
December 3, 2008
Should Federal Court Workload Guide Development of Procedural Doctrines?
Nancy Levitt at the University of Missouri School of Law has authored a new article questioning whether we should let administrative concerns, like docket overcrowding, guide the use of doctrines like abstention, preclusion, and summary judgment, which let our federal courts avoid making decisions.
The abstract explains:
The quantity of litigation in the federal courts has reached unprecedented heights. While this 'crisis of volume' has attracted the attention of legislators and scholars, the judiciary has been left to divine self-help measures to reduce litigants' use of the federal courts. The federal bench that must manage this caseload explosion includes a cadre of recently appointed federal judges. Many of these judges embrace the New Federalism, an initiative to shift governmental power and responsibility back to the states.
This article posits that the combination of judicial overload and injudicious federalism is operating to shunt certain classes of litigants away from federal courts. New procedural and substantive theories are being created to restrict federal jurisdiction. Federal courts are increasingly using the doctrines of preclusion, preemption, abstention and remand to shuttle cases or decision-making authority back to state courts. Complementing this procedural routing of cases is an expansion of summary procedures and a dramatic reduction in the scope of substantive constitutional rights.
This article questions the propriety of the judiciary's use of administrability concerns in the formulation of jurisdictional theories. While court efficiency appears to be a deserving goal, the current method of its implementation is through a reduction of court access to particular classes of litigants. The article analyzes the concept of administrability and posits that administrative efficiency is actually a value-laden argument for selecting which litigants should be permitted access to federal courts.
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You can download the whole article here.--Counseller
You're not a procedure nerd if ...
You're not a procedure nerd if you don't find this transcript to be a compelling page-turner. It's the oral-argument transcript from the Vaden case, which involves the nature of federal-question jurisdiction and the Federal Arbitration Act, and which is up on Cert. to the Supreme Court. --RR
December 2, 2008
Twombly and Communication
Prof. William H. Page recently posted Twombly and Communication: The Emerging Definition of Concerted Action Under the New Pleading Standards. Click the article title to download the article; the abstract follows:
After the Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly, an antitrust plaintiff who tries to plead an agreement in restraint of trade under Section 1 of the Sherman Act must allege more than parallel conduct and an undefined "conspiracy." Now, the complaint must include "enough factual matter (taken as true) to suggest that an agreement was made." Although the Court insisted it was not imposing a heightened pleading standard, it did require antitrust plaintiffs to provide enough detail to make the claimed agreement plausible. In this article, I examine an important substantive consequence of Twombly's pleading regime. In nineteen reported cases, federal courts have applied the new pleading standard to complaints alleging concerted action under Section 1 of the Sherman Act. In doing so, the courts have had to address a crucial defect in the substantive law of agreement: the Supreme Court's traditional definitions of agreement, which Twombly itself simply repeated, are too vague to help litigants and courts distinguish between consciously parallel conduct and concerted action. In the course of applying Twombly, however, the lower courts have adopted a more meaningful definition, one that requires that the parties have communicated to each other their intentions to act in a certain way, and their reliance on each other to do the same. This clarification of the standard has important implications for the role of discovery in pleading and resolving claims of concerted action.
December 1, 2008
Podcasts of Advisory Committee Proceedings Regarding Proposed Changes to Rules 26 and 56
The Advisory Committee is recommending changes to Rule 26 (Duty to Disclose; General Provisions Governing Discovery) and 56 (Summary Judgment). They summarize their proposed changes in this brochure requesting comment. Watch out, though, because the beginning of the summary is at the end of the brochure and the end of the summary is at the beginning--I'm not sure how they must fold the thing.