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.).
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!
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.
President and Director-Counsel
NAACP Legal Defense Fund
Gregory G. Garre
Latham & Watkins, LLP
Stephen B. Burbank
David Berger Professor for the Administration of Justice
University of Pennsylvania Law School
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.
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:
· The majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.
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 http://www.pennstatelawreview.org/.
[Hat Tip: Nancy Welsh]
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.
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.
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.
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:
TITLE I—JURISDICTIONAL IMPROVEMENTS
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.
TITLE II—VENUE AND TRANSFER IMPROVEMENTS
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.
(Hat Tips: Kevin Clermont & Jim Pfander)
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.