Saturday, October 3, 2009

Fox & Stephenson on the Impact of Judicial Review on Democratic Performance

Justin Fox (Yale) and Matthew Stephenson (Harvard) have posted "Judicial Review and Democratic Failure."  The abstract states:

We use an agency model to analyze the impact of judicial review on democratic performance. We find that judicial review may increase democratic failure by rescuing elected officials from the consequences of ill-advised policies, but may also decrease democratic failure by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless the level of democratic failure is sufficiently high. We then show how judicial review affects voter welfare both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges. Our welfare analysis establishes general conditions under which judicial review serves majoritarian interests - and thereby arguably increases the “democratic” character of political outcomes, despite the non-democratic nature of judicial review itself.


October 3, 2009 | Permalink | Comments (0)

Friday, October 2, 2009

Follow This: Service Via Twitter

See here for yesterday's Reuters article "UK court orders writ to be served via Twitter." It begins:

Britain's High Court ordered its first injunction via Twitter on Thursday, saying the social website and micro-blogging service was the best way to reach an anonymous Tweeter who had been impersonating someone.

(Hat Tip: Jim Bolin)


October 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 1, 2009

Civil Rights Symposium on Section 1983 (with an Iqbal Component)

Readers may be interested in the following announcement, courtesy of David Achtenberg:

UMKC Law School is presenting a lecture on Enforcing Civil Rights in the Twenty-First Century and a symposium on Section 1983: Thirty Years After Owen v. City of Independence. Speakers will include established academics like Pamela Karlan, Alan Chen, and Sam Estreicher, as well as some of the most exciting new scholars working in the field. Several of the presentations deal with Iqbal and one of the speakers, Alex Reinert from Cardozo, represented Iqbal in the Supreme Court.

For more information, see here.


October 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Summary of recent removal cases

Here on the Drug and Device Law Blog.


October 1, 2009 | Permalink | Comments (0)

Wasserman on United States v. Klein

Howard Wasserman (Florida International) has posted "The Irrepressible Myth of Klein."  The abstract states:  

This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-law canon, a subject of a sort of “cult” among some lawyers and commentators, although no one seems to know how or why. Two connected myths surround Klein. First, the case is said to be meaninglessly indeterminate because, given the confusing and disjointed language of the opinion, its precise doctrinal contours are not clear; second, the case is believed (and hoped) to function as vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Both of these ideas are false. In fact, close analysis of Klein, its progeny, and past scholarship reveals three core, somewhat-related principles of separation of powers and limits on congressional control over the courts: 1) Congress cannot dictate case outcomes; 2) Congress cannot tell the courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules.

But close analysis also reveals that Klein lacks doctrinal vigor and that the belief in Klein's power is purely a myth. Those three core principles are neither groundbreaking nor exceptional and all are common ideas, reflected in and associated with other precedents and constitutional doctrines; we do not need Klein to advance these separation-of-power ideals. Consider that no federal law has been judicially invalidated on Klein grounds since the law challenged in Klein itself.

Klein’s principles fail to limit in any meaningful way Congress’ power to enact two recent, controversial pieces of War-on-Terror legislation: the Military Commissions Act of 2006, which imposed limits on Habeas Corpus on federal judicial decisionmaking in cases brought by WOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting warrantless surveillance of people in the United States. Although both laws limit and control the authority, operation, and decisionmaking of federal courts over highly contested legal and constitutional issues - the concerns at the case's heart - the case imposes no meaningful constitutional barriers to either enactment and both survive constitutional scrutiny. The continued belief that Klein imposes significant constitutional limits is a continued belief in a legal myth.


October 1, 2009 | Permalink | Comments (0)

Cert grants: Civ pro and fed courts topics of interest

Yesterday the Supreme Court granted cert in ten cases, three of which should be of interest to civil procedure and federal courts teachers.  See SCOTUS Blog for links to the opinions below and petitions supporting and opposing certiorari. 

Attorneys' Fees
Astrue v. Ratliff, 08-1322

Issue: Whether an “award of fees and other expenses” under the Equal Access to Justice Act, 28 U.S.C. 2412(d), is payable to the “prevailing party” rather than to the prevailing party’s attorney, and therefore is subject to an offset for a pre-existing debt owed by the prevailing party to the United States.

Bivens Actions; Federal Tort Claims Act
Migliaccio, et al. v. Castaneda et al. ; Henneford v. Castaneda et al., 08-1529; 08-1547

Issue: Does 42 U.S.C. § 233(a) make the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions?

Sovereign Immunity/FSIA
Samantar v. Bashe Abdi Yousuf, et al.; 08-1555

Issue: Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.


October 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 30, 2009

Need a Federal Rule of Civil Procedure . . .

. . . There's an app for that!


September 30, 2009 | Permalink | Comments (3)

9/11 Litigation: NY state law extends time for filing a notice of claim

Governor Patterson recently signed a bill that extends the time for filing a notice of claim against a municipality by one year for claims by 9/11 rescue and recovery workers.  As the New York Law Journal reports, this could expand the number of claims pending before Judge Alvin K. Hellerstein (S.D.N.Y) from 11,000 to nearly 14,000.  Although the bill is a New York State law, the bill will likely direct the cases to Judge Hellerstein's courtroom because of a 2001 federal statute, the ATSSSA (49 U.S.C. 40101 et seq.), which grants the Southern District of New York exclusive jurisdiction over cases arising out of the events of September 11th.*


*By way of shameless self-promotion, I have written extensively about the procedural aspects of the September 11th Litigation here and here.

September 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Upcoming Supreme Court Argument: Reed Elsevier v. Muchnick (Wednesday 10/7)

First Wednesday brings another argument that may be of interest to our readers: Reed Elsevier v. Muchnick (No. 08-103). The question presented is:

Does 17 U.S.C. s. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

The case revisits the ongoing problem of how to distinguish jurisdictional and non-jurisdictional requirements (see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)), and may also examine the availability of supplemental jurisdiction (28 U.S.C. s. 1367).

The Supreme Court docket is here, and the Second Circuit's decision is at 509 F.3d 116 2d Cir. 2007). The procedural posture is somewhat unusual, as the briefs (courtesy of the ABA) indicate...

Only the last amicus brief listed argues that the Second Circuit's judgment was correct.

For more detailed information, see SCOTUS Blog's wiki on the case; and LII's preview. As reported here, Justice Sotomayor has recused herself from this case.


PS: See here for a preview of Monday's argument (10/5) in Mohawk Industries v. Carpenter.

September 29, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, September 28, 2009

Buxbaum on Personal Jurisdiction in Cross-Boarder Securities Litigation

Hannah L. Buxbaum of Indiana University School of Law has posted the article Personal Jurisdiction Over Foreign Directors in Cross-Border Securities Litigation on SSRN and forthcoming in the Journal of Corporation Law.

Securities litigation against non-U.S. companies – on the rise over the past decade – forces U.S. courts to address a variety of procedural and jurisdictional issues. This article considers one such issue: the circumstances under which the directors of foreign companies that engage in U.S. securities markets may be subject to the personal jurisdiction of U.S. courts. It argues that jurisdictional standards are sometimes applied in a way that undermines the effectiveness of private litigation in enforcing director accountability norms. This result is particularly problematic in cases based upon a director’s failure to meet an accountability obligation expressly imposed upon it by statute. The article considers possible ways of resolving this tension, and ultimately advocates that courts adopt a two-part presumption: (1) In a claim against a foreign director based upon a corporate filing with respect to which Congress has expressly created a director accountability requirement, there should be a strong presumption that the director is subject to the personal jurisdiction of the U.S. court; and (2) In a claim against a foreign director based only upon allegations that the director failed to meet his or her oversight responsibilities over management, there should be a strong presumption that the director is not subject to the personal jurisdiction of the U.S. court. The article argues that these presumptions will satisfy the due-process protections embodied in jurisdictional law while bringing that law into better alignment with regulatory expectations regarding the responsibility of corporate directors for an issuer’s securities activity.


September 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Update on Google Book Class Action, Proposed Settlement, and Postponed Fairness Hearing

Many have been following the federal class action lawsuit against Google: The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.). The suit was filed in 2005 by authors and publishers who alleged that Google's digital copies of copyrighted works constituted "massive copyright infringement."

The parties reached a settlement agreement last year, but that settlement has spawned even more controversy. It would create a "Book Rights Registry" that would (among other things) allow Google to sell digital versions of the books. The settlement (in the words of the New York Times) "has prompted dozens of opposing filings from individuals, rival companies like Amazon and Microsoft, advocacy organizations, groups representing authors and publishers and even some foreign governments."

The FRCP 23(e)(2) fairness hearing on the proposed settlement was originally scheduled for next Wednesday (10/7). Last week, U.S. District Judge Denny Chin ordered that the hearing be postponed in light of "ongoing negotiations with the Department of Justice that, according to plaintiffs, will result in significant changes to the existing settlement agreement." Instead, the court will hold a status conference "to determine how to proceed with the case as expeditiously as possible."

In addition to PACER, filings in the case can be accessed via Justia.

Google's website about the settlement is here. Wikipedia's entry is here.

(Hat Tip: Michael W. Carroll)


September 28, 2009 | Permalink | Comments (1) | TrackBack (0)

Yung on Judicial Activism

Corey Rayburn Yung (The John Marshall Law School) has posted "Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals" as part of the Working Paper Series.  The abstract states:

Existing empirical scholarship about judicial activism has almost exclusively focused on the United States Supreme Court and actions by the judiciary that invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on interbranch and intergovernmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts.

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures, in the aggregate, a judge’s privileging of his or her judgment above others. The study utilizes a newly created dataset which includes 7,516 cases and 22,548 judicial votes from 2008 cases in all eleven numbered circuits in which a standard of review was applied. The article finds that there is no statistically significant correlation between activism of judges and: (1) the political party of the appointing President; (2) the particular President who appointed the judge; (3) the ideology of the judge based upon common space scores; and (4) whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual judges and Courts of Appeals vary substantially in their levels of judicial activism in a statistically significant manner. Further, the study explores in greater detail the judicial activism measurements of four notable judges: Frank Easterbrook, Richard Posner, now Justice Sonia Sotomayor, and J. Harvie Wilkinson III.


September 28, 2009 | Permalink | Comments (0)

Sunday, September 27, 2009

Upcoming Supreme Court Argument: Mohawk Industries v. Carpenter (Monday 10/5)

Civil procedure will make a "First Monday" appearance in Mohawk Industries, Inc. v. Carpenter (No. 08-678). The question presented is:

Whether a party has an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), of a district court's order finding waiver of the attorney-client privilege and compelling production of privileged materials.

The Supreme Court docket is here, and the Eleventh Circuit's decision is here. For the parties' merits briefs (courtesy of the ABA), see...

There are also several amicus briefs. On the petitioner's side, see briefs by the ABA, US Chamber of Commerce, and DRI-The Voice of the Defense Bar. On the respondent's side, see briefs by the Solicitor General and by Former Article III Judges and Law Professors.

For more detailed information, see SCOTUS Blog's argument preview and wiki on the case.

For my own thoughts on the collateral order doctrine (and the appealability of interlocutory orders more generally), see Reinventing Appellate Jurisdiction, 48 Boston College L. Rev. 1237 (2007).


September 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Conference: Judicial Review in US/Canadian comparative perspective at SEALS

Procedure and fed courts folks might be interested in the following announcement for a panel at SEALS:

A U.S./Canada Comparative Law Workshop will be held at the SEALS 2010 Annual Meeting at the Breakers Resort in Palm Beach, Florida. The workshop will consist of four discussion sessions of two hours each, which will take place over two days during the SEALS annual meeting. Two of the sessions will focus on public international law issues, and two will focus on private international law matters.  The purpose of the discussion sessions is to facilitate roundtable discussion in a non-traditional, non-panel format.

The public law and private law discussion topics for this workshop are as follows.  Each topic is intentionally broad, so as to facilitate discussion from a variety of angles.

Public Law Topic:  Comparative U.S./Canadian Perspectives on Judicial Review and the Role of Courts in Enforcing Fundamental Human Rights.  Participants will consider the role of courts in enforcing constitutional norms, as well as the proper function of a constitutional court in a democratic polity. Relevant potential discussion paper topics might address, for example, the ways in which judicial review in the United States and Canada is similar (or different), whether the federal courts in both jurisdictions perceive their roles in similar ways, and the question (problem?) of institutional legitimacy, for example, does Bickel*s famous "countermajoritarian" problem have any transborder significance?  Other potential questions within the scope of this topic would include, but not be limited to, (1) whether the express grant of a power of judicial review matters or affects the strength of judicial review, (2) the proper role of courts  vis-à-vis the national legislature, (3) the question of *balancing* competing constitutional considerations, and (4) the appropriate role of foreign and international law in construing the scope and content of domestic human rights.  Papers should consider a topic related to the role and function of courts and judges in establishing and enforcing constitutional limitations on the more democratically accountable branches of government.

Private Law Topic:  Comparative U.S./Canadian Perspectives on Free Markets, Regulation, and the Government's Role in Responding to the Financial Crisis.  Participants will consider a broad range of U.S. and Canadian views on market regulation and the role of government in the
marketplace.  Relevant potential paper topics might address, for example, Canadian versus U.S. approaches to transnational and multilateral regulatory cooperation or harmonization,  considerations of federalism in market reform and regulation in each country, and the effect of U.S. and/or Canadian regulatory or deregulatory measures during the recent financial crisis (such as in the banking sector).  Other potential topics to be addressed might include, but not be limited to, (1) Canadian and U.S. perceptions regarding market operation and wealth redistribution policies, (2) comparative perspectives on labor market regulation, (3) proposals for greater transnational U.S.-Canada financial policy coordination, and (4) trans-border environmental considerations in market regulation.

Individuals wishing to participate in the discussion of either topic are invited to submit a brief discussion paper of approximately 5-10 pages on a subject of their choice.  Papers longer than 20 pages (double-spaced) will not be considered.  All papers will be reviewed, and accepted papers will be distributed to all workshop participants prior to SEALS 2010.  Accepted papers will not count for the SEALS "one panel rule," meaning that persons whose papers are accepted
still may participate as a panelist or moderator on another panel at SEALS 2010.

Papers must be received by Friday, January 22, 2010 in order to be considered.  Please submit papers by e-mail to Professor Greg Bowman (Mississippi College School of Law; visiting at West Virginia University in 2009-2010) at Submitted papers will be reviewed by
Mark Drumbl (Washington & Lee), Bruce Elman (Windsor), Mike Floyd (Samford), Ian Holloway (Western Ontario), Ron Krotoszynski (Alabama),and Greg Bowman.  Our plan is to try to publish these papers in a symposium format.

Space for participants is limited, so if you are interested in participating, please contact co-chairs Ron Krotoszynski (; 205-348-0420) or Greg Bowman; 601-906-4422).


September 27, 2009 | Permalink | Comments (0)