Saturday, November 28, 2009

Craig on Political Constitutionalism and Judicial Review

Professor Paul P. Craig (University of Oxford Faculty of Law) has posted "Political Constitutionalism and Judicial Review" on SSRN.  It will be published in Effective Judicial Review: A Cornerstone of Good Governance (C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, M. Ramsden, eds.).

The abstract states:

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper.


November 28, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 27, 2009

Over 100,000 Served

This week our blog-traffic meter eclipsed the 100,000 mark (since February 19, 2007). Thank you, readers!

November 27, 2009 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Senate Judiciary Committee Hearing on Iqbal

Next week's activities on Capitol Hill include a hearing before the full Senate Judiciary Committee entitled "Has the Supreme Court Limited Americans' Access to Courts?" It's scheduled for Wednesday, December 2 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

More information is available here (including a link for a webcast). Here's the witness list:

John Payton
President and Director-Counsel
NAACP Legal Defense Fund
Washington, D.C.

Gregory G. Garre
Latham & Watkins, LLP
Washington, D.C.

Stephen B. Burbank
David Berger Professor for the Administration of Justice
University of Pennsylvania Law School
Philadelphia, Pennsylvania


November 27, 2009 in Current Affairs, Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Thursday, November 26, 2009

NY Times Editorial on the importance of funding state courts

The New York Times has run an editorial about the importance of state courts, writing that "[t]his vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits."

Happy Thanksgiving, dear readers.


November 26, 2009 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Iqbal Symposium

Penn State, Dickinson School of Law has issued this call for papers in connection with a March 26, 2010 symposium on "Reflections on Iqbal--Discerning Its Rule, Grappling With Its Implications":

Call for Papers

Symposium: Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications

Penn State Law Review

Penn State University, Dickinson School of Law

On Friday, March 26, 2010, the Penn State Law Review will hold a symposium addressing the Supreme Court's recent decision in Ashcroft v. Iqbal.  The symposium is entitled Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications and will feature panels addressing the following topics:

·         Iqbal's implications for the role of the courts and judges in providing American society with both the opportunity for redress of harms and a common law-based approach to the development of law. 
·         The majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.
·         Iqbal's implications for constitutional tort litigation, including the decision's potential impact on supervisory liability, qualified immunity, and the behavior of agency officials operating under adverse conditions. 

Presenters currently include: Hon. Anthony Scirica (Chief Judge, Third Circuit), Hon. D. Brooks Smith (Third Circuit), Mark Brown (Capital), Ray Campbell (Penn State), Gary Gildin (Penn State), Ramzi Kassem (CUNY), Kit Kinports (Penn State), Jim Pfander (Northwestern), Jeff Rachlinski (Cornell), Victor Romero (Penn State), Natsu Saito (Georgia State), Jean Sternlight (UNLV), Shoba Wadhia (Penn State), and Nancy Welsh (Penn State).  Presented papers will be published in a Symposium Issue of the Penn State Law Review.  Brief abstracts of the papers will be posted on the LawReview’s online companion, Penn Statim, by December 16, 2009. 

The Penn State Law Review issues this Call for Papers for submissions regarding Iqbal and particularly invites submissions regarding the topics to be covered at the Iqbal symposium and responding to the abstracts that will be posted on Penn Statim.  Submissions will be accepted, however, that are grounded in other areas of law relevant to understanding the reasoning in Iqbal (e.g., security, employment, antitrust, etc.), as well as other academic disciplines.  Papers submitted in response to this Call should be of essay length and type and should be no longer than 5,000 words, including footnotes.  Through its online companion, the Penn State Law Review hopes to encourage and host a scholarly online dialogue regarding Iqbal and its implications.  Therefore, after conducting an editorial review process, the Penn Statim will select and begin posting papers on December 17, 2009, with selections and postings to continue on an ongoing basis.  At least one of the papers submitted in response to this Call will be selected for hard-copy publication in the Summer Issue of the Penn State Law Review.  The author of any paper selected for such hard-copy publication will be invited (but not required) to expand upon his or her essay-length piece. 

The deadline for submissions in response to this Call is Friday, April 16, 2010.  All submissions must be sent to  All submissions must be in English and comply with Bluebook formatting rules.  Penn Statim is available at

[Hat Tip: Nancy Welsh] 


November 26, 2009 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

South Africa to Create Special World Cup Courts

The BBC reports that South Africa is creating special courts to deal with crime during the World Cup.  The purpose of the courts is to allow visitors to testify even though they will be in the country for a short time.  The theory is that "fast tracking" crimes committed during the World Cup will act as an extra deterrent.

The 54 courts will operate in the nine World Cup cities and judges, lawyers and volunteers will receive special training.


November 25, 2009 in In the News, International Courts, International/Comparative Law | Permalink | Comments (0) | TrackBack (0)

Issacharoff & Klonoff on The Public Value of Settlement

Professor Samuel Issacharoff (NYU School of Law) and Dean Robert H. Klonoff (Lewis & Clark Law School) have posted "The Public Value of Settlement" on SSRN.  This paper will be published in the Fordham Law Review.

The abstract states:

This article, part of a symposium honoring the 25th anniversary of Owen Fiss’s Against Settlement, takes issue with the basic premise that settlement indicates defeat of the weak by the powerful, the poor by the rich, the injured by the wrongdoers. The argument is both empirical and normative. On the empirical side, this article challenges the basic claim advanced by Fiss and Marc Galanter that repeat players in the courts of justice are more likely to prevail because they will marshal and deploy greater resources. Over the past quarter century, the emergence of the well-heeled plaintiffs’ firm together with referral and other market organizing practices have allowed plaintiffs to fight and defeat institutional defendants across all sorts of mass harm cases. Normatively, this article challenges the assumption that the driving organizational framework of the court system should be derived from the structural injunction that characterized an episodic phase of the civil rights movement. Instead, resolution of mass harms has been and continues to be one of the great challenges of the judicial system, a process for which settlement is a critical and likely inescapable component.


November 25, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Gilles on Judicial Hostility to Small-Claims Consumer Class Actions

Myriam E. Gilles (Cardozo Law School) has posted Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions to SSRN.

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model.


November 23, 2009 in Class Actions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Now in Congress: The Federal Courts Jurisdiction and Venue Clarification Act

H.R. 4113 was introduced last week in the U.S. House of Representatives. It would amend sections of the U.S. Code dealing with:

  • Diversity jurisdiction (28 U.S.C. 1332)

  • Removal and remand (28 U.S.C. 1441 & 1446)

  • Venue (revisions to 28 U.S.C. 1391, the deletion of 28 U.S.C. 1392, and the creation of a new 28 U.S.C. 1390)

  • Transfer of venue (28 U.S.C. 1404 & 1406)

Here is the table of contents:

Sec. 101. Treatment of resident aliens.
Sec. 102. Citizenship of corporations and insurance companies with foreign contacts.
Sec. 103. Indexing the amount in controversy.
Sec. 104. Facilitating use of declarations to specify damages.
Sec. 105. Removal and remand procedures.
Sec. 106. Effective date.

Sec. 201. Scope and definitions.
Sec. 202. Venue generally.
Sec. 203. Repeal of section 1392.
Sec. 204. Change of venue.
Sec. 205. Cure or waiver of defects.
Sec. 206. Effective date.

For more information, see the Library of Congress's website here. The full text of the bill is available here (.xml format) or here (.pdf format)

(Hat Tips: Kevin Clermont & Jim Pfander)


November 23, 2009 in Federal Courts, In the News, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Bulto on Judicial Referral of Constitutional Disputes in Ethiopia

Takele Soboka Bulto (Melbourne Law School, The University of Melbourne) has posted "Judicial Referral of Constitutional Disputes in Ethiopia" on SSRN.  It will be published as part of "Constitutionalism and the Rule of Law in Ethiopia: Challenges and Opportunities," the editors of which are Assefa Fiseha and Getachew Assefa.

The abstract states:

The trend of swift and at times unquestioning judicial referral of constitutional disputes to the CCI has seemingly bordered judicial surrender of its proper province of refereeing the possible trespasses and frictions by the legislative and executive branches. The underlying reasons, real or apparent, are many and varied but two deserve an explicit mention here as they lie at the heart of jurisdictional dilemmas surrounding the procedure of judicial referral of constitutional issues to the CCI/HoF. The first is the legal argument arising from the provisions of Article 83(1) of the Constitution, which stipulates that ‘all constitutional disputes’ shall be decided by the HoF. This provision has given rise to the view, in judicial circles and beyond, that courts are relived of the duty to interpret and apply constitutional provisions. Thus it is believed that the constitution is taken away from the courts, and that for the regular judiciary to directly apply and interpret the constitution would tantamount to the courts ‘punching above their heights.’ Consequently, the regular courts have been ‘loathe doing anything which might indicate that they are engaged in constitutional interpretation.’ Another reason for judicial avoidance of constitutional adjudication is related to the judicial tendency to shun cases that involve politically sensitive issues which, more often than not, constitutional disputes tend to trigger. The overall consequence has been that litigants, as much as the courts, have avoided citing constitutional provisions for fear of risking judicial referral of their cases to the CCI/HoF. 

This paper sets out to depict that the constitution speaks with two voices: the main voice remains that of the regular courts while merely the residual powers are ceded to the CCI/HoF procedures. It is argued that judicial referral of constitutional issues is discretionary as opposed to mandatory, and that the procedure of referral pertains solely to questions of law as opposed to questions of fact, the latter being the court’s constitutional duty.


November 23, 2009 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)