Saturday, November 21, 2009

O'Hara & Ribstein on Conflict of Laws and Choice of Law

Professor Erin A. O'Hara (Vanderbilt University School of Law; Gruter Institute for Law and Behavioral Research) and Professor Larry E. Ribstein (University of Illinois College of Law) have posted "Conflict of Law and Choice of Law" on SSRN as part of the Working Paper Series.

The abstract states:

In this revised entry for a new edition of Elgar’s Encyclopedia of Law and Economics we discuss the law and economics of conflict of laws and choice of law, focusing on the law in the US. We first consider choice of law when the parties have not effectively chosen their governing law by contract. We address four questions: (1) Why do courts ever apply anything other than the law of the forum? (2) If a court sometimes applies foreign law, is a rule-based or more modern standard-based approach to its choice preferable? (3) Why have so many states abandoned rule-based approaches in favor of standard-based ones? and (4) Is there any real practical difference between the First Restatement and modern approaches? We then discuss costs and benefits of enforcing parties’ contractual choice of law provisions. We conclude that permitting parties to choose the governing law that best fits their transactions and future private disputes can enhance jurisdictional competition and help restore predictability to the conflict of laws problem. When states nevertheless wish to insist on the application of their own governing law, they should state that explicitly in statutes.


November 21, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 20, 2009

Seinfeld on Article III and the Limits of Enumeration

Professor Gil Seinfeld (Michigan) has posted on SSRN his article, Article I, Article III, and the Limits of Enumeration, which will be published in the Michigan Law Review. Here's the abstract:

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.


November 20, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 19, 2009

Michelman on standing to sue over government surveillance

Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc to SSRN.
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.


November 19, 2009 in Current Affairs, Federal Courts, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Pether on Constitutional Solipsism

Professor Penelope Pether (Villanova University School of Law) has published "Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits' Nonprecedential Status Rules are (Profoundly) Unconstitutional" on SSRN. The article will be published in the William & Mary Bill of Rights Journal.


Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name. 

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right. 

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.


November 19, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 18, 2009

Thomas on the standard for motions to dismiss after Iqbal and Twombly

Professor Suja A. Thomas (University of Illinois College of Law) posted "The New Summary Judgment Motion:  The Motion to Dismiss Under Iqbal and Twombly" on SSRN as part of the Working Paper Series.

The abstract states:

Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.


November 18, 2009 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Pimentel P.S. -- and an update!

Last year, the Supreme Court decided the case of Republic of Philippines v. Pimentel, 128 S. Ct. 2180 (2008) in which it held that the government of the Philippines and a government entity were necessary parties to an interpleader action.  Merrill Lynch had filed the action regarding assets that it held from a shell corporation that Ferdinand Marcos had set up to hide money during his reign as president of the Philippines.  The government entities were unavailable due to sovereign immunity, and the Supreme Court held that the case should be dismissed under Rule 19(b) because it could not proceed without these parties.

The case provided fresh material to anyone teaching mandatory joinder of parties, interpleader, or the FSIA.  And although the Supreme Court might have spoken, the fight over the money continues, the Associated Press reports that the Ninth Circuit has "rebuked" the district judge who was handling the assets for Merrill Lynch, accusing him of lax oversight.

There have also been developments at the state court level (H/T Kevin Clermont).  Some of the human rights judgment claimants have filed a petition in New York state court to enforce the judgment and have Merrill Lynch turn over the Arelma assets.  The Philippine National Bank and Arelma moved to intervene, and then to dismiss the complaint because the Republic and the Commission were not joined.  In a November 6, 2009 opinion (available here: Download 09-104734 decision seq. 02), the NY trial judge granted the intervention but refused to dismiss the case because the governmental parties were not joined. 

The opinion is interesting on a few fronts.  First, the question of mandatory joinder of parties proceeds somewhat differently under the CPLR, as the question relates to the provisions for turnover of assets and enforcement of judgments, rather than a specific rule that addresses mandatory joinder of parties.  It contains a res judicata issue concerning the U.S. Supreme Court's ruling on the Rule 19 joinder issue.  Second, it addresses two changed circumstances since the Supreme Court decision, (1) that the Philippino court has found that the assets should revert to the government of the Philippines (although judgment is not final; and (2) The government of the Philippines has waived sovereign immunity in a similar action in Singapore, indicating a willingness to waive sovereign immunity under certain circumstances.  The trial judge then held that the action should continue without the government parties.  It also ruled that the judgment from the District of Hawaii had not lapsed.

All in all, a virtual treasure trove of procedural issues from federal and state courts. 

I guess that the Marcos family is the gift that keeps on giving.


November 18, 2009 in Federal Courts, In the News, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 17, 2009

Hot Off The Presses: Recent Articles Of Interest

With a hat tip to the latest installment of the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Dustin E. Buehler, Revisiting Rooker-Feldman: Extending the Doctrine to State Court Interlocutory Orders, 36 Fla. St. U. L. Rev. 373 (2009)

Paul E. Lund, Federally Chartered Corporations and Federal Jurisdiction, 36 Fla. St. U. L. Rev. 317 (2009)

A. Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1 (2009)

S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?, 30 Mich. J. Int'l L. 1017 (2009)

Edmund Ursin, How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking, 57 Buff. L. Rev. 1267 (2009).


November 17, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Amended Settlement Agreement in Google Book Class Action

As covered earlier here, the FRCP 23(e) fairness hearing on the controversial settlement in the Google Book class action -- originally scheduled for last month -- was postponed by U.S. District Judge Denny Chin. The reason was "ongoing negotiations with the Department of Justice that, according to plaintiffs, will result in significant changes to the existing settlement agreement."

The amended settlement agreement that resulted from these negotiations was submitted last Friday and is available here.

For coverage of the amended settlement agreement, see Concurring Opinions, CNET, Financial Times.

Filings in the case (The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.)) can be accessed via Justia or Pacer.

Other good resources on the case include the website of the Settlement AdministratorWikipedia and The Public Index (a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School).


November 16, 2009 in Class Actions | Permalink | Comments (0) | TrackBack (0)

Administrative procedure in Europe

Anne Meuwese, Ymre Schuurmans, and Wim J. M. Voermans, have posted Towards a European Administrative Procedure Act on SSRN.

Under the joint responsibility of the Member States to implement EU law, administrative law systems of the EU are converging and a common body of EU administrative law is emerging. Most debates on this process of EU administrative law integration have focused on differences and divergences between national systems vis-à-vis the EU system. The concept of administration at the level of the EU, however, is difficult to compare to that in use in most domestic systems in continental Europe. In this contribution we bring the lens of the United States (U.S.) approach to the debate. The problems and challenges the EU administration faces do resemble those which confronted the federal administration in the U.S. more than 50 years ago. The article discusses some of the parallels between the U.S. and EU system and zooms in on the EU’s ‘problem zones’: preparation of regulation – in particular the role of participation and the use of evidence therein – and the position of agencies. On the basis of experiences with the Administrative Procedure Act (APA) in controlling the U.S. administration and the federal agencies, the contribution then reflects on the desirability of a general EU administrative law act, especially in view of the upcoming extension of judicial review of general rules the Lisbon Treaty will most likely bring. The conclusion is in short that the American APA offers food for European thought and that a lot could be gained with a European styled APA ‘light version’.


November 16, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Geyh on Judicial Independence

Charles G. Geyh (Indiana University Bloomington School of Law) has posted "Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence" on SSRN.  It will be published in the Notre Dame Journal of Law, Ethics and Public Policy.

The abstract states:

In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.


November 16, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 15, 2009

Burger King franchisees strike back

The franchisees are suing over losses stemming from the $1 menu promotion.
Perhaps, hidden somewhere down the road, another civil procedure issue is in the making!


November 15, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)