Saturday, March 27, 2010
Professor James Fischer (Southwestern University School of Law) has posted "How Should Lawyers Handle the Unintended Disclosure of Possibly Privileged Information" on SSRN.
The abstract states:
Friday, March 26, 2010
Cassandra Burke Robertson (Case Western) has posted on SSRN her article, Transnational Litigation and Institutional Choice, 51 Boston College Law Review (forthcoming 2010). Here's the abstract:
When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This article argues that the judiciary’s restriction of access to federal courts ignores important foreign relations, trade, and regulatory considerations. The article applies institutional choice theory to recommend a process by which the three branches of government can work together to establish a more coherent court-access policy for transnational cases.
Thursday, March 25, 2010
Howard Wasserman (Florida International) has posted on SSRN his recent symposium piece, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010). Here's the abstract:
Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a “mismatch” between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S.C. § 1983 and Bivens, a species of civil action unheard of when the Federal Rules and the system of notice pleading and broad, wide-ranging discovery were created in 1938. That pleading system arguably does not work with such “modern” litigation and Iqbal reflects the Court’s effort to make federal pleading and discovery rules more consistent and more functional with this particularly vulnerable area of new federal substance. Unfortunately, the greater detail demanded by the new pleading rules may be impossible in many civil rights cases, where plaintiffs cannot know or plead essential information with particularity at the outset without the benefit of discovery - discovery that Iqbal stands to deny to plaintiffs who fail to plead with the necessary detail. The predictable result, illustrated by one Ninth Circuit decision just two months after Iqbal, will be a significant decrease in enforcement and vindication of federal constitutional and civil rights.
Reuters reports that the amount of class action settlements rose in 2009. The article states:
"The total dollar amount of settlements of U.S. class-action securities lawsuits rose 39 percent in 2009 and could rise further this year as cases stemming from the financial crisis wind on.
There were 103 settlements totaling $3.83 billion last year, up from 97 settlements totaling $2.75 billion in 2008, according to a study released on Wednesday by Stanford Law School and Cornerstone Research."
For more details about the rise in class action settlements as well as discussion about trends and predictions for the future, see here.
Wednesday, March 24, 2010
Professor Barbara Luppi (Universitå degli studi di Modena e Reggio Emilia Facolta di Economia) and Professor Francesco Parisi (University of Minnesota Law School) have posted "Litigation and Legal Evolution: Does Procedure Matter?" on SSRN.
Monday, March 22, 2010
Professor Michael E. Solimine (University of Cincinnati College of Law) has posted "Ex Parte Young: An Interbranch Perspective" on SSRN. It is published in the University of Toledo Law Review.
The New York Law Journal reports here. Judge Hellerstein indicated that the settlement formula was too complicated for each individual plaintiff and that the attorneys' fees (33% of each award) were too high.
This will be an interesting story to watch, as he seems to essentially be conducting a class action-style fairness hearing on a group of cases consolidated as an MDL.