December 26, 2009
Davies on Baseball and Law
Professor Ross Davies (George Mason University School of Law) has posted "It's No Game: The Practice and Process of the Law in Baseball, and Vice Versa" on SSRN. The article will be published in the Seton Hall Journal of Sports and Entertainment Law.
December 24, 2009
Erie and Class Actions: Waiting for the Supreme Court's Decision in Shady Grove
While many children are spending today waiting for Santa, I thought I'd talk about a Supreme Court decision that the civil-procedure world is eagerly awaiting: Shady Grove v. Allstate, which was arguedlast month. Unlike Santa, a Dec. 25th arrival is doubtful. But Shady Grove could be the most important decision on the Erie doctrine in years. The case confronts a significant issue at the intersection of judicial federalism and civil litigation: when is a federal court bound by state law on whether a class action should be certified? (If folks are interested in a pre-Shady Grove examination of this issue, check out my 2008 article What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245.)
Shady Grove is a putative class action alleging violations of New York state insurance law. It was filed in federal court based on the new form of diversity jurisdiction created by the 2005 Class Action Fairness Act (CAFA). Here's the rub: New York law precludes class actions for statutory-damages claims like the one in Shady Grove. Federal law, on the other hand, would allow a class action if the general requirements of Rule 23 are satisfied. It's a classic Erie-Hanna-Rules Enabling Act problem. Is the federal court bound by New York's bar on this kind of class action? Or may the federal court apply the federal approach to class certification and, potentially, certify the class despite New York law?
It is somewhat ironic that the Supreme Court is confronting the Erie/class action issue in a case where state law is more hostile to class actions than federal law. The conventional wisdom has long been that a defendant opposing a class action has better odds in federal court than in state court. But many of the arguments the Shady Grove defendants are making, if the Court accepts them, could benefit plaintiffs in cases where the state-law approach is indeed more friendly to class actions. If New York's law prohibiting certain class actions is held to be binding in federal court, a more lenient state-law approach to class actions could be binding as well.
So if the Supreme Court in Shady Grove agrees with the defendant and holds that state law governs, it may well be that what's good for the goose (defendants) is also good for the gander (plaintiffs). That could have a remarkable effect on judicial federalism in the post-CAFA era. Consider the common scenario, where a defendant invokes CAFA and removes a case to federal court in order to avoid a more lenient state-court approach to class certification. The logic of the defendant's arguments in Shady Grove could mean that the state's approach to class certification would be binding in federal court thanks to the Erie doctrine. The consequences could even extend beyond class certification. After the Supreme Court's decisions in Twombly and Iqbal, some litigants may find a federal pleading standard that is stricter than the one that applies in state court a block away. Depending on how Shady Grove is decided, it could pave the way for plaintiffs to argue that more lenient state-law pleading standards should be binding in federal court via Erie (my Erie article examines this possibility in more detail).
(Cross-posted at Concurring Opinions)
PS: As in Shady Grove, the litigants in Erie were also not in their typical positions vis-a-vis the larger federalism question. The Erie plaintiff, Mr. Tompkins, wanted to use "federal common law" to displace state tort law. But as a general matter, such federal common law tended to benefit corporate and business interests like The Erie Railroad Company. That's probably why Erie's lawyers never made the argument, which Justice Brandeis ultimately embraced, that federal courts lacked authority to impose such federal common law.
PENNumbra wraps up Iqbal debate
Professor Burbank has posted his final statement on PENNumbra, bringing the Iqbal debate to a close (at least as far as the Penn Law Review is concerned!)
The full debate is available here.
December 23, 2009
LeRoy on the Effect of Partisan Election of Judges on Judicial Review of Employment Arbitrations
Professor Michael H. LeRoy (University of Illinois College of Law) has posted "Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations" on SSRN in the Working Paper Series.
December 22, 2009
New York Times Editorial on Iqbal
Today, the New York Times published this editorial on Iqbal: "Restoring Access to the Courts."
More Congressional Activity on Iqbal
While the Senate was wrestling with health care reform last week, the House turned once again to whether and how to legislatively overrule Iqbal. (For coverage of previous hearings in the House and Senate, see here, here, here, and here.)
On December 16, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing on H.R. 4115, the "Open Access to the Courts Act of 2009." The Judiciary Committee's website is here, and a video webcast is available here.
Below is the witnesses list and links to their testimony:
Hon. Jerrold Nadler
U.S. House Representatives
8th District, NY
Professor of Law
University of Washington School of Law
Gregory G. Katsas
Director of Financial Regulation Studies
Former Assistant Attorney General, Civil Division
U.S. Department of Justice
Jonathan L. Rubin
Patton Boggs, LLP
Joshua P. Davis
Professor Center for Law and Ethics
University of San Francisco School of Law
December 21, 2009
Dyevre on European Integration and National Courts
Arthur Dyevre (CEPC) has posted "European Integration and National Courts--A Strategic Analysis of Judicial Behaviour" on SSRN in the Working Paper Series.
Dale Beck Furnish (Arizona State College of Law) has posted Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation to SSRN.
Navajo Tribal Courts Exercise Extensive Civil Jurisdiction ~ Many commentators feel that recent U.S. Supreme Court decisions curtail tribal courts’ jurisdiction over civil lawsuits, even while Congress and the federal Executive encourage Indian autonomy. Plains Commerce Bank v. Long Family Land & Cattle Co. (June, 2008) is the latest in that line of decisions. The article begins by assessing whether the case may have extended the U.S. Supreme Court limitations, and concludes that Plains Commerce Bank wastes its precedent in an extremely narrow holding, changing nothing in existing doctrine. The article then analyzes that Supreme Court doctrine in the context of the Navajo Nation’s tribal courts. Since 1958 the Navajo Nation has developed a strong court system. Prior to 1958, Arizona, New Mexico and Utah state courts exercised jurisdiction over all civil controversies involving Navajo Country. The advent of the Navajo (and other tribes’) courts has given rise to cases confronting the issue of when the states must defer their civil jurisdiction to the tribal courts. The three state courts have differing approaches to what is still a relatively new problem. Notably, Arizona’s Supreme Court has handed down some of the most extreme precedents against the civil jurisdiction of tribal courts, while New Mexico’s Supreme Court takes a balanced approach more considerate of tribal judicial sovereignty. The Navajo Nation Supreme Court, however, has a surer touch than the state courts in dealing with the issue. A series of Navajo opinions beginning in 2003 sets out a reasoned doctrine of assertive tribal court jurisdiction over civil lawsuits, carefully working within the U.S. Supreme Court precedents. The article concludes that the Navajo Nation’s tribal courts will develop a stronger and stronger role in the resolution of civil controversies in the three states its reservation touches, undeterred by anything that the U.S. Supreme Court is likely to decide.
December 20, 2009
Cupp on Preemption and Products Liability Reform
This Article compares and contrasts the rocky reception the Restatement (Third) of Torts section 6(c)’s restrictive prescription product design standard has endured with the rise of an increasingly active judicial approach to preemption from the 1990s through the late 2000s. Preemption’s rise may have to some extent crested (at least for now) with Riegel v. Medtronic in 2008, and it showed signs of possible contraction (again, at least for now) with Wyeth v. Levine in 2009. The Article analyzes the effect of preemption’s rise in the 1990s and pre-Wyeth 2000s on developing a generally more restrictive approach to prescription product design defect claims, along with other prescription product defect claims. The article suggests that the restrictive tone of section 6(c) may have to some extent caught the “mood” of courts regarding prescription product design liability, even if the specific details of the unfamiliar standard have not found much traction. Indeed, some of the rationales provided for section 6(c) overlap with some of the rationales the Supreme Court employed in the 1990s and 2000s to support its increasingly aggressive use of preemption analysis in prescription products cases. Thus, the article concludes that the currents underlying section 6(c)’s restrictive tone for prescription product design liability may have found a “back door” in Supreme Court rulings such as Daubert and Riegel, despite most courts’ and commentators’ refusal to provide “front door” acceptance of the Restatement (Third)’s prescription product design defect standard. Further, the article contemplates whether Wyeth may represent the start of a contraction in preemption doctrine or whether its significance will be more limited.