Saturday, January 9, 2010

Phillips & Carter on Gender Influences on Supreme Court Justices

Professor James Cleith Phillips (University of California Berkeley) and Professor Edward Carter (Brigham Young University) have posted "Gender and U.S. Supreme Court Oral Argument on the Roberts Court: An Empirical Examination of the Sotomayor Hypothesis" on SSRN.

The abstract states:

The nomination and confirmation of Justice Sonia Sotomayor to the U. S. Supreme Court rekindled the debate surrounding gender and judicial behavior and decision making. While numerous studies have looked at the potential influence of a judge’s gender on voting patterns, there has been no scholarship to date investigating how the interaction of a Justice’s gender and an attorney’s gender, after controlling for other factors, influences judicial behavior during oral argument. This study empirically explores gender and oral argument by content analyzing over 13,000 sentences from 57 oral arguments during 2004-2009, measuring Justices’ levels of information-seeking and word counts. Statistical analysis of the individual Justices showed that having the same gender as the arguing attorney did influence judicial behavior for some of the Court. Furthermore, ideology also interacted with gender matching in a fairly consistent partisan divide.


January 9, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 7, 2010

Cuniberti on European Default Judgments

Professor Gilles Cuniberti (University of Luxembourg) has posted "Debarment from Defending, Default Judgments and Public Policy in Europe" on SSRN.

The abstract states:

Marco Gambazzi was excluded from English proceedings for non complying with interim measures. As a consequence, he was ordered to pay hundreds of millions of Euros without trial. This note discusses the two issues addressed by the Advocate General and the Court. The first is whether such "default" English judgments are to be characterized as such in the meaning of the European law of judgments and thus benefit from the Brussels Convention (as it was then). The second is whether such judgments are contrary to public policy for being the consequence of a debarment from defending and an exclusion of proceedings.


January 7, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Summary of AALS Panels of Interest

For those of you headed to New Orleans for AALS, there are several panels of interest that we have posted about over the past few weeks.  The panels all include your friendly Civ Pro/Fed Courts Blog Editors as panelists and moderators.  Here is a summary:

Friday, January 8:
10:30 - 12:15 Revisiting Discovery
1:30 - 3:15 Civil Pleading Standards After Iqbal (Federalist Society's 12th Annual Faculty Conference) Wyndham Hotel, Bacchus Room

Saturday, January 9:
10:30 - 12:15 The Future of Summary Judgment

We are looking forward to seeing and meeting many of you in New Orleans!


January 7, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 6, 2010

Gotanda on Attorney Fee Awards in International Arbitrations

Professor John Gotanda has posted "Attorneys' Fees Agonistes: The Implications of Inconsistency in the Awarding of Fees and Costs in International Arbitrations" on SSRN.  

The abstract states:

The awarding of arbitration costs and attorneys’ fees in international arbitrations is often arbitrary and unpredictable. In one recent investment arbitration where the tribunal deciding a case under the auspices of the international Centre for the Settlement of Investment Disputes (ICSID) had broad discretion to award costs and fees, the tribunal allocated arbitration costs evenly amongst the claimant and respondent and required each party to bear its own fees and expenses, even though the claimant prevailed. In another case where the claimant was successful on its substantive claim, the ICSID tribunal ordered the respondent to pay the claimant US$6 million for legal fees, but required the parties to bear the costs of the arbitration equally. And in still another recent investment arbitration the unsuccessful respondent was ordered to pay the costs of the arbitration, but each party was responsible for its own legal fees. These results are not unique to investment arbitrations; they can also be found in international commercial arbitrations. 

The lack of uniformity in the awarding of costs and fees poses two major problems. First, arbitrary awards undermine the legitimacy of the dispute resolution system. Second, the lack of predictability may hinder parties from being able to settle the dispute and could rob arbitration of its efficiency. These problems are exacerbated in the international context because the costs and fees in transnational disputes can run into the millions of dollars. Indeed, in one recent celebrated arbitration, the costs and fees totaled over US$21 million. 

This article examines the awarding of costs and fees in international commercial arbitrations and transnational investment disputes. My study finds that awards of costs and fees are arbitrary and unpredictable under both systems. To remedy these problems, I propose two different approaches: one for ICSID tribunals and another for international commercial arbitrations. In the case of ICSID arbitrations, the parties should share equally the costs of the arbitration and bear their own legal expenses. In essence, I propose that ICSID adopt what has become known as the American Rule with respect to the awarding of costs and fees. This approach is needed to bring predictability to the field, provide greater administrative efficiency, and reduce the overall costs. In the case of international commercial arbitrations, I argue that parties should be free to select the method for resolving claims for costs and fees, including authorizing the tribunal to resolve such claims pursuant to the principle of “costs follow the event” or the “loser pays” rule. In this context, the adoption of the American Rule would not achieve the same administrative and economic benefits, and the principle of party autonomy calls for this different approach.


January 6, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Huang on Shareholder Derivative Actions in China

Xiao Huang (University of London, School of Advanced Studies) has posted Shareholder Revolt? The Statutory Derivative Action in China to SSRN.

This paper concerns one of the thorniest aspects in company law: the derivative action. As an exception to the rule in Foss v. Harbottle, individual shareholders can, acting on behalf of a company, sue the company’s director if a wrong is done to the company. Private shareholders’ action has been a major landscape in corporate governance in the US, but not in the UK. (Armour et al, 2007) Recently, the law on derivative action has experienced significant changes with the codification adopted in many jurisdictions. It is doubtful as to whether derivative actions are a useful mechanism to enhance investor protection.

Chinese companies have been widely conceived as having a blockholder model, in which the state as the controlling shareholder should in theory possess the incentives to constrain the opportunistic behavior of managers. Nonetheless, the state, as loosely defined as “people as a whole”, has failed to exercise any effective monitoring role. The introduction of the statutory derivative action in 2005 is a significant experiment to establish an investor-friendly legal regime. However, during the transplantation of western law into China, there are several fundamental problems that need to be properly dealt with so as to allow the derivative action to function effectively.

The paper begins by examining the role of derivative actions in China, then reviews Chinese derivative action system with respect to substantive law and enforcement, and discusses the inadequacies of the present system such as costly litigation expenses and ambiguous procedures. Finally, a discussion for further reforms will inevitably include comparative references to other legal systems. The Chinese case has illustrated a paradigm shift of governance towards the role of private actors.


January 6, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 5, 2010

Panel of Interest in New Orleans: "Civil Pleading Standards After Iqbal" (Friday, Jan. 8)

Those traveling to New Orleans this week may be interested in the panel Civil Pleading Standards After Iqbal at the Federalist Society's 12th Annual Faculty Conference. Panelists include:

Prof. Suzanna Sherry, Vanderbilt Law School
Prof. Suja Thomas, University of Illinois College of Law
Prof. Stephen Burbank, University of Pennsylvania Law School
Prof. Adam Steinman, University of Cincinnati College of Law
Moderator: Prof. Robin Effron, Brooklyn Law School

It's happening on Friday, January 8 from 1:30 p.m. - 3:15 p.m. in the Bacchus Room of the Wyndham Riverfront New Orleans. See the conference website for further details.

January 5, 2010 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Monday, January 4, 2010

Lerner & Lund on the "Supreme Court's Cult of Celebrity"

Professor Craig Lerner (George Mason University School of Law) and Professor Nelson Lund (George Mason University School of Law) have posted "Judicial Duty and the Supreme Court's Cult of Celebrity" on SSRN.  It will be published in the George Washington Law Review.

The abstract states:

Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of judicial duty, this article proposes four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.

First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

Second, Congress should require the Court to hear at least one case certified from a circuit court (or one diversity case) for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts.

Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions.

Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.

If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.


January 4, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Chief Justice Roberts releases the 2009 year-end report

On New Year's Day, while the rest of us were watching football and wondering what the next decade will bring for procedure, Chief Justice Roberts was busy releasing his year end report, which can be downloaded here.  The report is brief -- only five pages including the appendices -- and does not contain the plea for salary increases that characterized the 2008 year-end report.  His conclusion?  The U.S. federal courts are "operating soundly."

Additional coverage of the year-end report is available at the New York Times, Wall Street Journal law blog, and The Washington Post.


January 4, 2010 in Federal Courts, In the News | Permalink | Comments (0) | TrackBack (0)