Saturday, October 10, 2009

Menkel-Meadow on Systemic Ethics Issues in Dispute System Design

Professor Carrie Menkel-Meadow (Georgetown & UC Irvine) has posted "Are There Systemic Ethics Issues in Dispute System Design? And What We Should [Not] Do About it: Lessons From International and Domestic Fronts," which will be published in the Harvard Negotiation Law Review.


This paper reviews ethical issues that occur when systems of dispute resolution are designed for organizations, institutions and situations of iterated disputing and grievances. It explores the state of the art of the field and suggests that ethics codes can be both inductively and deductively derived. After reviewing some ethics issues in both domestic (US) and international contexts, some key ethics issues are described but it is also suggested that the field is too new and under "professionalized" for the formal development of an ethics codes at this point, though some general principles of good practices can be identified.


October 10, 2009 | Permalink | Comments (0)

Friday, October 9, 2009

Decision of interest: Prudential limitation on standing bars U.S. lawsuit by non-resident aliens harmed abroad

In a decision that is already generating controversy, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia has granted the defendants' motion to dismiss in Doe v. Exxon Mobil Corp. (No. 07-CV-1022). The complaint alleges that the plaintiffs -- citizens of Aceh, Indonesia -- were shot, assaulted, and/or detained by Indonesian soldiers who were acting as the defendants' security personnel for a natural gas field in Aceh.

Last week's order dismissed these claims under what the Court described as "the general rule that non-resident aliens have no standing to sue in United States courts." It distinguished a slew of cases where non-resident aliens had indeed sued in U.S. courts, reasoning that those cases had not explicitly addressed the question of prudential standing.

The opinion is available here. For additional coverage, see here and here.

(Hat Tip: Perry Bechky)


October 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 8, 2009

Know of any upcoming conferences relating to civil procedure?

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2010 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by November 1 to Thom Main at

Of course, we're also happy to post about upcoming conferences on this blog. (See, e.g., here and here.) So feel free to contact us too.


October 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Disabled Class Members Lack Standing to Sue Disney for Segway Use

In this decision from the Middle District of Florida, Judge Presnell dismissed a 23(b)(2) class action brought by disabled individuals who have been battling Disney for the right to use Segways in the Disney parks.  The judge had initially approved a settlement which allowed disabled guests to use a Disney created standing mobility vehicle, but changed his mind and held that the class members did not have standing to bring the lawsuit, thus dismissing the case.  The putative class, Judge Presnell ruled, was perfectly capable of accessing the park in wheelchairs or scooters.

I can't help but point out the following painful irony:  The class members' lawsuit was based on the theory that the Segway is a preferred mobility vehicle for some disabled persons because it allows them to stand, therefore avoiding some of the alleged indignities of being wheelchair-bound.  And, alas, the plaintiffs have lost on grounds of standing.

Additional coverage available here at The American Lawyer.


October 8, 2009 | Permalink | Comments (0) | TrackBack (0)

U.S. District Court in Chicago Adopts New Rules to Speed Resolution of Patent Cases

The United States District Court in Chicago has adopted new local rules designed to encourage resolution of patent cases within two years rather than the current four-year timetable that average patent cases are on.  The National Law Journal reports here on the new rules, summarizing them as follows:

The new rules require parties to provide more detailed allegations of infringement, non-infringement and invalidity earlier in the case, getting to a "final statement of contentions" within "a reasonable period for fact discovery." They also call for a standard protective order from the outset of proceedings to keep certain aspects of the litigation confidential, alleviating the need for lawyers' usual negotiation of such an order.


October 8, 2009 | Permalink | Comments (0)

Yesterday's SCOTUS Argument in Reed Elsevier v. Muchnick

As previewed earlier here, Reed Elsevier v. Muchnick presents the question:

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

The transcript from yesterday's oral argument is available here(Justice Sotomayor has recused herself from the case).

This case has aroused considerable interest, not only because of the large settlement at stake ($18 million) but also because of its odd posture. No party was willing to defend the Second Circuit's conclusion that subject matter jurisdiction was lacking, so the Court appointed Professor Deborah Jones Merritt (Ohio State) to argue and file an amicus brief in support of the judgment below.

From a procedural standpoint, 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)). The parties briefs also consider the availability of supplemental jurisdiction (28 U.S.C. s. 1367), although that issue garnered no attention during the argument.

For SCOTUS Blog's analysis of the oral argument, see here.


October 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 7, 2009

Over 90,000 Served

Today our blog-traffic meter eclipsed the 90,000-mark (since February 19, 2007). Thank you, readers!

October 7, 2009 | Permalink | Comments (1)

Sheyn on "The (Un)Constitutionality of Section 632 of the Edge Act"

Elizabeth R. Sheyn (Penn alum) has posted "The (Un)Constitutionality of Section 632 of the Edge Act: An Analysis Under Article III and Theories of Protective Jurisdiction," which will be published in the Loyola University Chicago Law Journal.


Is a statute that establishes federal question jurisdiction over cases with nondiverse parties and involving pure state law claims constitutional? “The absence of diversity (and any other apparent article III ground for jurisdiction) looks like an embarrassment to the principle that Congress may not augment the jurisdictional scope of article III. Nevertheless, courts have [tacitly] approved Congress’s authority to place all [civil] suits” arising out of “transactions involving international or foreign banking” or “out of other international or foreign financial operations” in the federal courts.

The Edge Act of 1919 provides a basis for original federal district court jurisdiction over the two types of suits mentioned above; any defendant named in such a suit may remove the suit from state court to federal district court. Depending on how broadly a federal court interprets the provisions of the Edge Act, the Act could provide a jurisdictional basis for suits that ordinarily have no business being before a federal court, such as suits involving pure state law claims without any diversity of citizenship. This result has been borne out in several recent court decisions that have involved the extension of federal question jurisdiction under the Edge Act to state law claims of wrongful termination in violation of state public policy, breach of contract, fraud, and intentional infliction of emotional distress. 

For example, with the Edge Act providing the sole ground for federal (question) jurisdiction, federal courts have considered claims that a bank violated Ohio’s public policy by wrongfully terminating an employee who allegedly complained about improper actions taken by his co-workers and by his supervisors, that a bank violated a conditional agreement for the sale of a vehicle, and that a financial institution harassed and threatened investors after allegedly defrauding them. International banking transactions or international banking operations were only tenuously (if at all) implicated in each of these suits, thereby illustrating the breadth of federal jurisdiction asserted by some federal courts on the basis of the Edge Act. 

With the assistance of the Edge Act, then, federal courts have begun to erode the control that state courts currently retain over a narrow core of traditional areas of common law such as tort and contract matters that have no connection to international banking transactions or operations. The interest of the state courts in retaining jurisdiction over such matters is quite high, particularly in light of the fact that the states’ control over nearly all other issues generally and in the realm of banking has been taken away through supplemental jurisdiction and alienage and diversity jurisdiction, as well as through the federal regulation of various aspects of banking. 

Thus, especially to curb the continuing encroachment of federal judicial power upon state control over a gradually narrowing sub-set of state law, federal courts must move beyond the proper statutory interpretation of the Edge Act and evaluate whether the Act is constitutional in light of the limitations placed on federal question jurisdiction by article III. Currently, they are neglecting these limitations with respect to the Act (and potentially with respect to other similar statutes). Resolving the question of the constitutionality of the Edge Act is particularly important during this period of financial uncertainty – replete with bank failures and badly-behaving financial institutions – when issues concerning the (federal) jurisdiction of lawsuits against banks and other financial institutions come to the fore and federal courts are increasingly forced to grapple with cases implicating the Edge Act. 

This Article argues that Section 632 of the Edge Act is likely not constitutional because it does not fit within the traditional bounds of federal question jurisdiction set out in article III. For example, the Supreme Court has declared that a jurisdictional statute that is nearly identical to the Edge Act exceeds the limits of article III. Additionally, none of the three recognized theories of “protective jurisdiction” fully apply to the Edge Act – even if one of them did, the Supreme Court has not yet legitimized the theory of protective jurisdiction and it does not appear that it will do so in the near future.


October 7, 2009 | Permalink | Comments (0)

SDNY Remands Fosamax lawsuit to Florida state court

Judge Keenan of the Southern District of New York is handling the Fosamax litigation consolidated by the JPML.  In a recent opinion, 2009 WL 3109832 (S.D.N.Y.), Judge Kennan held that a plaintiff could join her doctor as a defendant, and that this was not fraudulent joinder to destroy diversity jurisdiction.

One wonders here if this particular plaintiff preferred the state court system, not for any preferential rules or procedures, but because of the ability to litigate her claim by herself without being swallowed up by the aggregated litigation.  Concerns about plaintiff interests and autonomy in non-class consolidated litigation have received a good deal of attention lately.  On the other hand, a continuing challenge for the effective aggregation of cases is the inability to fully consolidate cases that are pending in parallel court systems.


October 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

Yesterday's SCOTUS Argument in Mohawk Industries v. Carpenter

As previewed earlier here, Mohawk Industries, Inc. v. Carpenter presents the question:

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 transcript from yesterday's oral argument is available here.

Note that the Solicitor-General's office also received argument time as an amicus supporting the respondent (beginning at p.41 of the transcript). The government agreed with the respondent that an order rejecting a claim of attorney-client privilege was not immediately appealable under the collateral order doctrine, but it urged the Court "not to foreclose" the collateral order doctrine's applicability to the presidential communications privilege or the state secrets privilege.

For additional coverage of the argument, see the ABA Journal and National Law Journal.


PS: No one participating in the argument challenged the desirability or coherence of the collateral order doctrine as a means of obtaining immediate appellate review. For my own views on that issue, see Reinventing Appellate Jurisdiction, 48 Boston College L. Rev. 1237 (2007).

October 6, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, October 5, 2009

Stein on Probability and Incentives

Alex Stein of Cardozo School of Law has posted Probability and Incentives on SSRN.
Although the paper is not directly addressed to civil procedure topics, the issues surrounding the intersection of mathematical probability and motions to dismiss, summary judgment, and issues of proof remain ever important in the procedure context.

This Article challenges the mathematical probability system that underlies law and economics and behavioral analysis and argues that many of the core insights of both approaches are irremediably flawed. The Article demonstrates that mathematical probability is only suitable for pure gambles and hence does not provide a useful epistemic tool for analyzing individual decision-making. As a result, mathematical probability cannot serve as a useful tool for lawmakers. Mathematical probability, the Article proposes, ought to be replaced with causative probability.

Originating from the writings of John Stuart Mill and Francis Bacon, causative probability differs from its mathematical cousin both conceptually and substantively. By contrast to the mathematical system that bases probability estimates on abstract averages, the causative system bases probability estimates upon case-specific evidential variety. Under the causative system, the probability that a person’s action will bring about a particular consequence - harm or gain - is determined by the number and scope of the consequence’s evidential confirmations in the individual case, and not by general averages that are usually irrelevant to the individual determination at hand. Causative probability allows a person to develop a better epistemic grasp of her individual case relative to what she could achieve under the mathematical system.

The causative-probability account has important implications for individual law-compliance, law-enforcement, and the design of legal policies. Causative determinations are intrinsic to all law-enforcement decisions: courts, prosecutors and other law-enforcers implement legal rules by responding to the information about what the relevant actor did, rather than by conducting a lottery. Legal rules are causative as well: they set up mechanisms that allow individuals to reap the benefits of their productive activities and force them to pay for the harms they cause. All this turns causative probability into a superior tool for understanding how law-enforcement mechanisms work, for improving those mechanisms, and for defining the rationality of individuals’ decisions.


October 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Justice O'Connor's civics education website

Since retiring from the Supreme Court, Justice O'Connor has been spearheading a project aimed at improving civics education in American schools.  She sponsors a website,, which is aimed at middle school and younger children, contains information and games to teach kids about the court system and includes teacher resources. This website might also be useful for law students who are involved in street law programs. 


October 5, 2009 | Permalink | Comments (0)

Mamas, don't let your babies grow up to be litigators

The ABA Journal reports: Scalia Worries Gifted Litigators Should Be Doing Something More Productive.

The article is based on an interview Justice Scalia gave to C-SPAN, as reported last week by the Wall Street Journal Law Blog. When asked about the quality of counsel arguing before the Supreme Court, Justice Scalia stated that he was "disappointed that so many of the best minds in the country were being devoted to this enterprise." He continued:

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society? I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.... [B]y and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

For additional coverage, see Above the Law and PrawfsBlawg.


PS: Apologies to Waylon & Willie for this post's title

October 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 4, 2009

Lemos on Fee Shifting and Litigation Incentives

Margaret H. Lemos of Cardozo School of Law has posted Do Litigation Incentives Work? How Attorneys’ Fee Shifts and Damage Enhancements Affect Litigants and the Law to SSRN.

Congress regularly uses procedural mechanisms like one-way attorneys’ fee shifts and damage enhancements to strengthen private enforcement of federal law. According to standard economic theory, both devices should increase the number of suits by private parties seeking to enforce the substantive terms of the relevant statutes. Commentators have considered such litigation incentives through the lens of longstanding debates about the optimal level of enforcement, with many arguing that fee shifts and enhanced damages are likely to produce too much litigation-and thus too much deterrence-in certain contexts. Far less attention has been paid to how litigation incentives actually work. Few scholars have investigated how existing statutory fee shifts and damage enhancements have affected the behavior of litigants, and no study to date has explored how those mechanisms might influence judges and the law.

This Article is the first to assess the efficacy of litigation incentives as part of an enforcement boosting strategy. I argue that one-way attorneys’ fee shifts and damage enhancements may not, in fact, result in stronger enforcement. First, the available empirical evidence suggests that litigation incentives-particularly fee shifts-do not always work in the sense of generating more litigation. Second, when litigation incentives do work, they may trigger a judicial backlash against the very rights that Congress sought to promote. I show that caseload pressures are likely to make judges-especially those who are not naturally inclined to favor the claims in question-hostile to any notable increases in the number of suits filed under a given statute. In an effort to counteract what they see as excessive litigation, judges may adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Most importantly, judges may react to litigation incentives by narrowly interpreting the substantive provisions of the relevant statutes.


October 4, 2009 | Permalink | Comments (0) | TrackBack (0)