January 27, 2009
New choice of law article on the SSRN
Dean Symeonides has published another article on choice of law, and posted it on the SSRN. In it, he analyzes how states have been dealing with the choice of law question over the past 40 years in "cross-border" torts (torts where "the injurious conduct and the resulting injury occur in different states or countries"). Here's a clip from the abstract:
This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.
Download the whole article here.
5th Circuit holds district court's remand order under 1367(c) reviewable
In Brookshire Brothers Holding, Inc. v. Dayco Products, Inc., No. 07-31154, 2009 WL 22876 (5th Cir. January 6, 2009), the Fifth Circuit held that a district court's order of remand based on 28 USC § 1367(c) is reviewable.
Section 1447(d) provides that an "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." The Fifth Circuit acknowledged the Supreme Court's recent holding in Powerex two years ago. As you may recall, Professor Dodson provided an examination of the Powerex case on this blog when it was first released. As Professor Dodson pointed out at the time, the Supreme Court held that when the District Court relies upon a ground that is "colorably characterized" as subject-matter jurisdiction, appellate review is barred by § 1447(d). In what is now a deepening circuit split, the Fifth Circuit found that declining supplemental jurisdiction is not "colorably characterized" as a remand based on a lack of subject matter jurisdiction:
In this case, the district court’s order of remand was clearly based on 28 U.S.C. § 1367(c). The district court summarized Brookshire’s argument that remand was required under 28 U.S.C. § 1447(c) in the first paragraph of the order, but the court then went on to analyze the remand issue under the discretionary standard set out in 28 U.S.C. § 1367(c), finding that “[w]hile it is certainly within our discretion to retain this case for further proceedings, after examining the factors enumerated in § 1367(c), the Court finds that the suit before us contains only issues of State law, and in the interest of comity, these State law issues would be more properly decided by a State forum.” The order of remand cannot be “colorably characterized” as being based on lack of subject matter jurisdiction under section 1447(c).
You can read the full opinion here.
January 26, 2009
Using the Internet to Improve Class Actions
With two accomplices, Drug and Device Blogger and Curmudgeon Mark Herrmann recently published "Making Class Actions Work: The Untapped Potential of the Internet" in the Pittsburgh Law Review. Download the article here. A brief abstract follows:
In the article, Herrmann, his colleague Brad Harrison, and his former colleague (and now Dean of the Lewis & Clark Law School) Bob Klonoff first canvas the current uses of the internet in class action litigation. The authors go on to propose ways that the internet can be used to improve class action procedure in the future. Among other proposals, they suggest creating a centralized website that contains all information about pending federal class action lawsuits, webcasting certain class action proceedings, and using the internet to facilitate two-way communications between absent class members, counsel, and the court.
Funding for Civil Litigation Research
The ABA Section of Litigation invites applications to The Litigation Research Fund, which makes individual awards of between $5,000 and $20,000 to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States. The Fund was established in 2007 to support research and writing projects relevant to litigation policy and practice, with preference given to works with an empirical foundation. The first two rounds of funding resulted in thirteen grants totaling approximately $140,000. Priority will be given to applications received by February 28, 2009. For additional information, see http://www.abanet.org/litigation/researchfund.