Saturday, November 21, 2009
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.
Friday, November 20, 2009
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.
Thursday, November 19, 2009
Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc
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.
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.
Wednesday, November 18, 2009
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.
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.
Tuesday, November 17, 2009
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).
Monday, November 16, 2009
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.
Other good resources on the case include the website of the Settlement Administrator, Wikipedia 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).
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’.
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.
Sunday, November 15, 2009