Friday, January 23, 2009
Thursday, January 22, 2009
The papers presented at the 2008 AALS Civil Procedure Section’s annual meeting were recently published in the Summer 2008 edition of the Oklahoma Law Review and are now available online. The topic of the program was “The Revolution of 1938 Revisited: The Role and Future of the Federal Rules.” Papers are by Debra Bassett (Alabama) & Rex Perschbacher (UC Davis), Richard Marcus (UC Hastings), and Robert Bone (BU), with an introduction by Steven Gensler.
Wednesday, January 21, 2009
Recently, a split panel of the 4th Circuit Court of Appeals found that a counter-defendant added to the suit by the original defendant could not remove the case to federal court under 28 U.S.C § 1441(a) or § 1453(b). In Palisades Collections v. Shorts, a collection agency sought to recover $794.87 from Shorts for a cellular phone debt in West Virginia state court. Shorts responded by filing a counter-claim against Palisades and joined AT&T as a counter-defendant. Shorts filed for class certification to represent over 160,000 other citizens of West Virginia. AT&T removed the case to the Northern District of West Virginia. The district court granted Short's motion to remand.
On appeal, the 4th Circuit affirmed. First, citing to authority from numerous other federal circuits the court "easily conclud[ed]" that an additional counter-defendant is not a "defendant" under 1441(a). Next, the court turned to AT&T's argument that the broad language of 1453(b) permits an additional counter-defendant to remove a class action to federal court. After analyzing the language of 1453(b), the court held that there was no indication that in 1453(b) Congress intended to alter the traditional rule that only an original defendant may remove. The dissenting judge argued that CAFA authorizes removal even though AT&T is not an original defendant.
You can read the full opinion here.
Tuesday, January 20, 2009
Jeffrey Parker from George Mason University School of Law has posted a paper on SSRN that he presented at the 11th Travemunder Symposium on the Economic Analysis of Procedural Law. The paper, Comparative Civil Procedure and Transnational 'Harmonization': A Law-and-Economics Perspective, discusses transnational harmonization of civil procedure law. This abstract follows:
This paper presents a critical analysis of recent proposals for transnational harmonization of civil procedure law through the promotion of uniform principles of transnational civil procedure that would homogenize civil procedure law across national boundaries. A recent proposal of Principles of Transnational Civil Procedure for commercial disputes, by the American Law Institute jointly with UNIDROIT, is focused particularly on eliminating the distinctive features of American civil procedure, notably party control of procedure, expansive pretrial discovery, and jury trial. That proposal is criticized by this paper on the grounds that its normative objective of transnational uniformity in procedure is unexamined by its proposers and highly questionable as a matter of policy.
After reviewing the principal differences across national systems as a matter of comparative procedure, the paper presents a general economic analysis of civil procedure, and detailed applications to the distinctive features of the American system. The paper then examines the question of diversity versus uniformity in civil procedural law. Given that disputes subjected to litigation are unlikely to be homogeneous, the case for a uniform procedural law appears weak. Rather, and particularly in the context of transnational commercial disputes, it seems likely that procedural rules should vary with the dispute, and that the disputing parties themselves should be permitted to choose among those applicable. By definition, the disputing parties are sophisticated businesses who will internalize the results of the litigation. From this point of view, diversity among national systems of procedure would contribute positively to the efficient resolution of disputes, by enabling contracting parties to choose among disparate procedural rules.
In the context of transnational commercial disputes, contracting parties in fact have been choosing their own applicable substantive law, forum, and procedural rules (to some extent) for decades, and these choices have been respected in most countries. There is no ground for replacing this system with harmonized procedural law. The adoption of such a proposal would actually reduce the efficiency of the transnational procedural system.