October 24, 2009
Supreme Court of Canada limits availability of class actions
The Supreme Court of Canada recently held that a class action was inappropriate in a case challenging a municipal tax assessment. Commentators are speculating about how much the decision will impact the future availability of class actions in Canada because the court's opinion reasoned that class actions are inappropriate in matters where summary disposition is appropriate.
October 22, 2009
Australian Arbitration Rules
Simon Greenberg, Luke R. Nottage, and Romesh Weeramantry have posted The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited to SSRN.
A decade ago, leading arbitration institutions and practitioners responded to growing concerns about burgeoning costs and delays in international commercial arbitration ("ICA") partly through some considerable changes to Arbitration Rules. Nowadays, however, disquiet has re-emerged especially about costs. Some point to parallels with civil procedure reforms in various national court systems since the 1990s. Those may have accelerated processes, but front-loading costs does not necessarily reduce them significantly.
Arbitration institutions are again responding to similar concerns about ICA. Some have published new Expedited Arbitration Rules, Mediation Rules, or encouraged renewed debate about more controversial measures to minimise costs such as Arb-Med (arbitrators encouraging settlement). Some institutions (like the ICC) have also instituted new rounds of reforms to their generic Arbitration Rules. Sometimes, Rule changes have followed amendments to arbitration legislation in the relevant jurisdiction (as in Japan). The Australian Centre for International Commercial Arbitration ("ACICA") also unveiled Arbitration Rules in 2005, and then Expedited Arbitration Rules in 2008. All these recent developments are occurring as UNCITRAL proceeds with revisions to its 1976 Arbitration Rules, designed initially for ad hoc arbitrations but influential also among many arbitration institutions.
It is therefore useful for the broader development of ICA to make more widely accessible this updated overview of the 2005 ACICA Arbitration Rules, comparing developments in many major arbitral institutions world-wide. The paper is particularly timely because the ACICA Rules will be used by hundreds of mock arbitrators and advocates in the 17th Vis Moot, to be held in Vienna and Hong Kong around March 2010. This event has become one of the most important in the ICA world, training not only a new generation of arbitration experts but also exposing more established experts to new developments and ideas. Both aspects are essential to the vitality of ICA and its perennial quest for an optimal balance between efficiency and procedural justice.
Are contract lawyers being asked to pursue quantity over quality in reviewing documents?
The ABA Journal reports here about increasing pressure on contract attorneys to review discovery documents at a faster pace. A contract lawyer reports having received an e-mail instructing the lawyer to "pick up the pace," and specifying that for the $23 per hour wage being paid, the expectation was that the lawyer review about 80 documents per hour. That was about double the pace at which the lawyer had been reviewing documents.
Having worked on some massive document reviews myself, I agree that it is unreasonable to believe that reviewers will be able to thoughtfully review documents over any sustained period at those rates. When the documents the attorneys are reviewing become lengthy or complex, and the attorneys simply are not capable of reviewing and coding each one in a minute or so, mandates like the one in the e-mail above force a choice: get fired or perform a woefully deficient review.
Ninth Circuit decision deepens circuit split on the process for establishing co-defendants' unanimous joinder in removal
Earlier this month the Ninth Circuit decided Proctor v. Vishay Intertechnology Inc. (No. 07-16527), 2009 WL 3260535, 2009 U.S. App. LEXIS 22254. The opinion addresses the substantive requirements for SLUSA removability as well as the timeliness of removal when the basis for SLUSA-removal arose only after the state-court complaint was amended. The Ninth Circuit also took sides in a circuit split over the process for demonstrating that all defendants join in the removal, concluding: "[A] notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient."
Here's the Ninth Circuit's full analysis on the issue:
The Sixth Circuit requires only that "at least one attorney of record" sign the notice and certify that the remaining defendants consent to removal; it does not insist that each defendant submit written notice of such consent. In contrast, the Fifth, Seventh, and Eighth Circuits have adopted the more demanding requirement that each co-defendant must submit a timely, written notice of consent to joinder.
We adopt the Sixth Circuit’s position as fully sufficient to implement the unanimous joinder rule. The so-called "rule of unanimity," announced by the Supreme Court in Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900), as an interpretation of a predecessor removal statute, merely says that "all the defendants must join in the application" for removal. Chicago does not specify how defendants must join in removal. Nor does any federal rule or statute specifically prescribe a particular manner in which codefendants' joinder must be expressed. In the absence of any rule governing joinder in removal, we turn to the general principles that govern procedures for removal and for attorney representations to district courts generally. Under 28 U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action" must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure." Rule 11, in turn, provides that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record," Fed. R. Civ. P. 11(a), and that "[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney . . . certifies that . . . the factual contentions [therein] have evidentiary support . . . ." Id. 11(b).
Applying these general principles, we conclude that the filing of a notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient. Ernst & Young submitted such an averment under threat of sanctions pursuant to Rule 11; the other co-defendants were notified of the removal notice and had an opportunity to object to it. These two considerations--the availability of sanctions and of objection--mitigate concerns that one defendant might falsely state the other defendants' consent, or that one defendant might game the system by silently allowing another to remove and, if the federal forum proves disadvantageous, belatedly object that he had not consented.
October 21, 2009
Swine Flu Vaccine Litigation
Last week saw the beginning of the delivery of vaccines for the H1N1 or "swine flu" virus. Perhaps the only thing more predictable than the worry that we will not have enough of the vaccine are the lawsuits that have already been filed.
In New York state court, a group of health care workers has filed a lawsuit alleging that mandatory vaccination of all health care workers violates their civil rights. The judge granted a temporary restraining order and has scheduled a further hearing for next week.
Another lawsuit filed in the D.C. Circuit challenges the licensing of the vaccines, alleging that the vaccines are untested and unsafe.
These cases, along with any lawsuits alleging actual injury from receiving the injections, are sure to raise issues of interest to civil procedure and federal courts scholars, from possible consolidation of a mass tort, to potential application of the 1986 National Childhood Vaccine Act (42 U.S.C. 300aa 1-34), and preemption issues.
Stay tuned for further developments in this field.
Prof. Connors on Allocating the Costs of Discovery
Professor Patrick Connors (Albany) has posted Which Party Pays the Costs of Document Disclosure?, 29 Pace L. Rev. 441 (2009) on SSRN. Here's the abstract:
The disclosure of electronically stored information has become an integral part of litigation in the twenty-first century; accordingly, the concomitant costs of document production have significantly increased. CPLR Article 31 does not expressly state which party is responsible for the costs of production incurred in response to a demand for "documents or any things." This article explores the development of a questionable rule cited by several New York State tribunals in allocating the costs of document disclosure, while suggesting that the courts adhere to CPLR Article 31's more flexible approach.
In Lipco Elec. Corp. v. ASG Consulting Corp, the New York Supreme Court concluded that "the party seeking discovery should incur the costs incurred in the production of discovery material." However, this rule limits the inherent flexibility of Article 31, and is neither supported by the text of the CPLR, nor by the case law cited in the opinion. This article respectfully submits that the disclosure process will function more efficiently and fairly without a general rule requiring the party seeking "documents or any things" to bear the costs of production. Parties should be encouraged to discuss disclosure costs as early as possible, and request a protective order from the court if necessary.
Segall on the Judicial Activism Debate
Eric Segall (Georgia State) has posted "Reconceptualizing the Judicial Activism Debate as Judicial Responsibility: A Tale of Two Justice Kennedys," which will be published in the Arizona State Law Journal.
October 20, 2009
Supreme Court grants review in Guantanamo habeas case
Kiyemba v. Obama, No. 08-1234.
Issue: May a federal district court exercising its habeas corpus jurisdiction order the release into the United States of 17 Chinese citizens detained as enemy combatants at Guantanamo Bay Naval Base, Cuba, or is it barred from doing so because the political branches have the exclusive power to determine the admissibility of aliens to United States and the district court failed to identify any statute, treaty, or constitutional provision authorizing its action?
Additional coverage at SCOTUS Blog.
October 19, 2009
Hot off the Presses: Recent Scholarship of Interest
With a hat tip to last week's Current Index of Legal Periodicals, here are some recent publications that may be of interest:
Hon. Judith S. Kaye, Shaping State Courts for the New Century: What Chief Judges Can Do, 61 Me. L. Rev. 355 (2009) (Frank M. Coffin Lecture on Law and Public Service)
Hon. William G. Young, A Lament for What Was Once and Yet Can Be, 32 B.C. Int'l & Comp. L. Rev. 305 (2009) (Abstract: In the wake of 9/11, the American people showed unwavering faith in justice, fairness, and the rule of law through their steadfast service to the legal system. Yet one of the Bush administration's first orders in the new “war on terror” was effectively to strip the courts and the juries of their role in the “trials” of our enemies, instead creating streamlined military tribunals. This diminished role of the judiciary is unfortunately just the latest feature in a disturbing trend in the federal district courts, which has seen the process of fact-finding in open court exchanged for a reflective in-chambers review of written submissions, and the trial of actual disputes replaced with “litigation management.” Most shocking is that the diminishment of the traditional American trial has been facilitated by the judiciary's own institutional policies. Judge William G. Young of the United States District Court for the District of Massachusetts makes a plea to all branches of government and the American people to halt the erosion of the judiciary and return to the founding principles of our democracy.)
The Roberts Court and Federalism, 4 N.Y.U. J.L. & Liberty 330 (2009) (Panel discussion: Hon. David B. Sentelle, panel moderator; Hon. Paul D. Clement, Hon. Walter E. Dellinger III, John C. Eastman and Jeffrey Rosen, panelists.)
Are Women Better Judges Than Men?
Professors Stephen J. Choi (NYU), G. Mitu Gulati (Duke), Mirya R. Holman (Duke), and Eric A. Posner (Chicago) have posted "Judging Women" on SSRN.
October 18, 2009
Startz and Yoon on an economic model of litigant resources and legal precedent
Richard Startz (University of Washington - Economics) and Albert Yoon (University of Toronto) have posted Litigant Resources and the Evolution of Legal Precedent on SSRN.
This paper develops an informational model of litigation in which court decisions are a function of legal representation. In this model, resource constraints determine how much parties expend on legal representation. The allocation of resources across parties influences court decisions in two important ways. First, in individual cases the party with greater resources can produce more information, thereby increasing her probability of a favorable decision by the court. Second, as the cost of litigation increases relative to parties’ resources, courts have less information upon which to make decisions. We model the evolution of precedent as a dynamic externality under stare decisis. These factors determine the evolution of legal precedent. In areas of law in which parties on a particular side have persistently greater resources, the law is likely to evolve in a direction that favors that side. The extent of information provided determines the variability of outcomes.