Saturday, December 5, 2009

Menkel-Meadow on the Negotiation Theory and Practice

Professor Carrie Menkel-Meadow (Georgetown University Law Center; University of California, Irvine Law School) has posted and essay entitled "Chronicling the Complexification of Negotiation Theory and Practice" on SSRN.  It will be published in the Negotiation Journal.

The abstract states:

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to public responsibility.


December 5, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 3, 2009

Coverage of Yesterday’s Senate Judiciary Committee Hearing on Iqbal

As blogged earlier here, the Senate Judiciary Committee held a hearing yesterday entitled, "Has the Supreme Court Limited Americans' Access to Courts?" The archived webcast is available here.

The witnesses (including links to their testimony) were:

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

Written statements of the Senators can be found here.

For coverage, see Blog of the Legal Times, Constitutional Law Prof Blog (Prof. Steven Schwinn), and PrawfsBlawg (Prof. Howard Wasserman).


December 3, 2009 in Current Affairs, Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Recent comparative law pieces

Three comparative law pieces of interest to civil procedure and federal courts professors recently have been posted on SSRN.

Maxeiner, et al., Comparative Civil Justice: United States, Germany, Korea. Chapter 1. Civil Justice: An Introduction to its Purposes, Methods and History

This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter introduces the shared purposes and goals of civil justice systems generally, sets out what it means to ‘think like a lawyer,” identifies the principal sources of law in statute and precedent, and gives historical information important to understanding each of the three systems. Unlike the other chapters in the book, this chapter emphasizes attributes that the three systems share. Relying on the “open courts” clause of the Maryland Declaration of Rights, characteristic of other similar declarations of the late eighteenth century, as well as on their spiritual forerunner, section 40 of Magna Carta, this chapter identifies four criteria for use throughout the book to measure the respective systems: (1) accuracy according to law and justice, (2) procedural fairness, (3) access to justice and (4) efficiency.

Vliamos & Hatzis, The Assessment of Compensatory Damages for Medical Error by the Greek Courts: An Economic Analysis

In this paper, after summarizing and reviewing the methods of computing damages for wrongful death or injury in the law and economics literature, we present the way in which damages should be compensated for according to the mainstream Greek tort law theory. We then examine the actual calculation of damages by Greek courts during the period from 2003 to 2008 in order to discover the rationale behind court assessments of damages, especially in the difficult cases of lost future opportunities due to injuries and the valuation of life in the cases of wrongful death. Finally we offer a number of proposals that the Greek judges can use to estimate damages more accurately within the existing legal framework.

Gomez - de Liano Polo, The Place and Time of Legal Proceedings (Articles 129 to 136 CPL)

This paper analyses articles 129 to 126 of the Spanish Civil Procedure Law (Ley 1/2000, 7 January, of Civil Judgment; BOE No. 7, 8.1.2007), regarding legal actions, specifically where legal actions are lodged, working days and hours, the assumptions in respect of which days qualify and times which not available, the time limits and the conclusions, their calculation, the inextendability of the time limits, the submission of briefs in respect of timing requirements for legal actions and their preclusion.


December 3, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sloan on Stare Decisis in the Federal Courts of Appeals

Professor Amy Sloan (University of Baltimore School of Law) has posted "The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals" on SSRN.  It will be published in the Fordham Law Review.

The abstract states:

Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en banc review is used arbitrarily. Courts often hide informal en banc actions in footnotes, which diminishes the transparency of their actions and makes research difficult. Informal en banc review appears to be used disproportionately in criminal cases, and in all cases in which it is used, it deprives the parties of the opportunity to participate in the decisional process because it is an internal court procedure that panels invoke sua sponte. The procedure can also damage judicial collegiality by depriving minority-view judges of opportunities to present their views. Informal en banc opinions inject uncertainty into the system of precedent because their precedential status is unclear. Further, informal en banc review can result in poor decision making when changes to the law are based on incomplete information. This Article explores informal en banc review in depth, tracing its history and use. It then analyzes the advantages and disadvantages of informal en banc review and proposes procedures to ensure that it is used only on legitimate terms.


December 3, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 2, 2009

Right Now: Senate Judiciary Committee Hearing on Iqbal

As blogged earlier here, the Senate Judiciary Committee is holding a hearing today entitled: "Has the Supreme Court Limited Americans' Access to Courts?" Click here for a link to a live webcast.


December 2, 2009 in Current Affairs, Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

PENNumbra features an online debate on Congress's response to Twombly and Iqbal

PENNumbra, the online companion to the University of Pennsylvania Law Review, is featuring an online debate about whether Congress should overrule Twombly and Iqbal.  The debate features Mark Hermann and James M. Beck, of the Drug and Device Law Blog facing off against Professor Stephen B. Burbank of the University of Pennsylvania Law School.  Hermann and Beck will argue in favor of the Supreme Court's plausibility standard, while Burbank will advocate for congressional change.

The first post, Hermann and Beck's opening statement, has been posted here at PENNumbra.  Professor Burbank's Opening Statement will be published on December 8.  Hermann and Beck's Closing Statement will appear on December 15, and Burbank closes on December 22.

Stay tuned for what should be an exciting and informative debate.


December 2, 2009 in Recent Scholarship, Twombly/Iqbal, Weblogs | Permalink | Comments (0) | TrackBack (0)

Civil Case regarding China Milk Scandal reaches China Court

A Chinese court is hearing the first civil case seeking damages for injuries suffered in connection with the China milk scandal.  The case, brought by a parent whose child became ill after consuming baby formula which contained the industrial chemical melamine, is seeking $8000 from a dairy group and a supermarket. The government has already ordered the payment of $161 million to the hundreds of thousands of families whose children became ill or died as a result of consuming the tainted milk. However, some of the families argue that this compensation is inadequate.  The Chinese court rejected an effort by the families to sue together as a group, and so far, six cases have been accepted by the courts.  

In addition to the civil litigation surrounding the tainted milk scandal, two people were executed in China last week for their alleged participation, and nineteen other people are in police custody in connection with the case. 


December 2, 2009 in Current Affairs, In the News, International Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 1, 2009

Amendment to Class Action Fairness Act (CAFA) takes effect today

The original version of the 2005 Class Action Fairness Act (CAFA) authorized immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." 28 U.S.C. § 1453(c)(1). Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite -- it imposed a 7-day waiting period and set no outer deadline. A circuit split ensued over how to interpret this problematic language. Compare Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), with Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 (9th Cir. 2006).

Effective today, Congress has fixed the problem -- unambiguously establishing a 10-day deadline for CAFA appeals. See Public Law 111-16, § 6(2) (“effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days’”).

For further discussion of this legislation and the interpretive puzzle that led to it, see my post on Concurring Opinions.


December 1, 2009 in Class Actions, Current Affairs, Federal Courts | Permalink | Comments (0) | TrackBack (0)

Monday, November 30, 2009

Cert. grant in Morrison v. National Australia Bank: Is there federal subject-matter jurisdiction over "foreign-cubed" securities class action?

Today the Supreme Court granted certiorari in Morrison v. National Australia Bank Ltd. (08-1191). The questions presented are:

1) Do anti-fraud provisions of U.S. securities laws extend to transnational frauds when (a) foreign-based parent company conducted substantial business in United States, its American Depository Receipts were traded on New York Stock Exchange, and its financial statements were filed with Securities and Exchange Commission, and (b) claims arose from massive accounting fraud perpetrated by American citizens at parent company's Florida-based subsidiary and were merely reported from overseas in parent company's financial statements?

(2) Should this court, which has never addressed issue of whether subject matter jurisdiction may extend to claims involving transnational securities fraud, set forth policy to resolve three-way conflict among circuits (i.e., District of Columbia Circuit versus Second, Fifth, and Seventh Circuits versus Third, Eighth, and Ninth Circuits)?

(3) Should Second Circuit have adopted SEC's proposed standard for determining proper exercise of subject matter jurisdiction in transnational securities fraud cases, as set forth in SEC's amicus brief submitted at request of Second Circuit, and should Second Circuit have adopted SEC's finding that subject matter jurisdiction exists here due to "material and substantial conduct in furtherance of" securities fraud that occurred in United States?

The docket is here, and the Second Circuit's decision is at 547 F.3d 167. SCOTUSblog's coverage is here and here.

(Hat Tip: BNA’s Supreme Court Today)


November 30, 2009 in Class Actions, Federal Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Long -- Against Certification

Justin R. Long (University of Connecticut School of Law) has posted Against Certification to SSRN.

Certification is the process whereby federal courts, confronted by an open question of state law in federal litigation, ask the relevant state high court to decide the state law question. If the state high court chooses to answer, its statement of state law stands as the definitive declaration of the law on the disputed point. The case then returns to the certifying federal court, which resolves any remaining issues, including federal questions, and then issues a mandate. Although a wide range of academic commentators and jurists support certification as an example of respect for state autonomy, this Article shows that in both practice and theory certification does not reflect real comity. Rather, certification is an example of 'dual federalism,' the view that state and federal law ought to be isolated into separate spheres of jurisprudence. For federal courts to show genuine respect for state law, they should stop treating it as foreign and decide open state law questions without certification.


November 30, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court hears argument on Statute of Limitations

The Supreme Court is hearing oral arguments today in Merck & Co., Inc. v. Richard Reynolds, which raises thee question of when a statute of limitations begins to run on a federal securities fraud claim. The case will resolve a dispute among the circuits as to when an investor has "inquiry notice" of federal securities fraud, as would trigger the running of the statute of limitations.

The statute of limitations issue arises from a class action by Merck shareholders who alleged that Merck officers and directors misrepresented facts about the drug Vioxx.  Merck argues that the shareholders' suit is time-barred because investors were put on "inquiry notice" more than two years prior to the filing date by an FDA Warning Letter accusing Merck of deceptive and misleading conduct regarding the safety of Vioxx.

The SCOTUS Blog's argument preview is here.

The SCOTUS Wiki page is here, and includes links to the documents filed in the case.


November 30, 2009 in Federal Courts, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, November 29, 2009

Ninth Circuit upholds forum non conveniens dismissal

Vivendi S.A. v. T-Mobile USA, Inc. (2009 WL 3525855) involved a French company suing a German corporation and a Polish corporation on a RICO cause of action.  The district judge granted T-Mobile's motion to dismiss on grounds of forum non conveniens.

The Ninth Circuit recently upheld that decision (2009 WL 3525855), finding that Poland was an acceptable alternative forum, and that the private and public factors favored dismissal.


November 29, 2009 in Recent Decisions | Permalink | Comments (0) | TrackBack (0)