Saturday, March 27, 2010

Fischer on Unintended Disclosure of Privileged Information

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:

The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer. Notwithstanding the similarities, case law, commentary, and ethics opinions have tended to treat the issues as separate. This separation has not, however, helped lawyers who are subjected to conflicting and inconsistent opinions as to how they should respond in situations when they have received information that may possibly be privileged.

This article makes two contentions. First, with respect to the privileged status of the disclosed materials, all disclosures unintended from the standpoint of the privilege holder should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyers professional obligations, lawyers who receive materials that are possibly privileged should be allowed to read the materials (1) to determine whether the materials are privileged and (2) to better argue the contention to the court that the materials are not privileged. A lawyer who reads the materials, even past the point when the privileged status of the materials is arguably apparent, should not be deemed to have engaged in professionally improper behavior as long as (1) the lawyer notifies opposing counsel of receipt of the materials and (2) makes no surreptious use of the materials until their status has been clarified by the court.


March 27, 2010 in Discovery, Recent Scholarship | Permalink | Comments (0)

Friday, March 26, 2010

Robertson on Transnational Litigation and Institutional Choice

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.


March 26, 2010 in Recent Scholarship | Permalink | Comments (0)

Thursday, March 25, 2010

Wasserman on Iqbal and Procedural Mismatches

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. 


March 25, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Dollar Amount of Class Action Settlements Increased in 2009

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.


March 25, 2010 in Class Actions, In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

Luppi & Parisi on Litigation and Legal Evolution

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.

The abstract states:

Gordon Tullock’s critique of the common law runs against much of the conventional wisdom in the law and economics literature. In this paper we revisit one of the most controversial aspects of Tullock’s critique. By applying Tullock’s own model of rent-seeking to litigation, we study the effect of alternative procedural rules on civil litigation. Our results provide support for Tullock’s controversial critique of the common law, revealing an evolutionary bias in the production of legal rules by courts. We extend the standard litigation model to study the effects of alternative procedural systems on the evolution of the common law.


March 24, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

Solimine on Ex Parte Young

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 abstract states:

Ex parte Young (1908) is an honored icon of the federal courts canon, because it empowers federal courts to enforce the Constitution against the states. But it has had a strange and ironic career. It is not simply because the case was heavily criticized by liberals at the time, since it struck down Progressive Era legislation. Nor was it that liberals, decades later, resurrected the case to empower federal judges to enjoin discriminatory state action during the Civil Rights Era. It is also that the controversy over the decision engaged the critical response of the other branches of the federal government. This article, a contribution to a symposium on the centennial of Ex parte Young, addresses the waxing and waning of the case, focusing on the reaction of the other branches, a reaction that, in various ways, continued for many decades. Part I of the article discusses the varying litigation strategies of litigants, with different ideological agendas, who sought to utilize Ex parte Young-type relief throughout the twentieth century. Part II addresses the response of Congress to the decision, principally by the enactment of the three-judge district court to hear cases seeking that relief. Part III considers how the Executive branch, through the Department of Justice, has responded to the case and its progeny. The article concludes by situating the interbranch reaction to Ex parte Young in the literature on the various relationships and interactions between the courts, Congress, and the Presidency.


March 22, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Judge Hellerstein Rejects Proposed 9/11 First Responders' Settlement

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.


March 22, 2010 in Class Actions, Mass Torts, MDLs, Recent Decisions | Permalink | Comments (0) | TrackBack (0)