Saturday, April 10, 2010

Nagareda on Pre-Trial as Trial in Complex Litigation

Professor Richard A. Nagareda (Vanderbilt University School of Law) has posted "1938 All Over Again? Pre-Trial as Trial in Complex Litigation" on SSRN.  It will be published in the DePaul Law Review.

The abstract states:

This Essay for the Sixteenth Annual Clifford Symposium analyzes the transformation of the pre-trial process for complex civil litigation. Settlement, rather than trial, has emerged as the dominant endgame. As a result, in functional terms, the pre-trial phase effectively operates as the trial. Over the past quarter-century, doctrinal developments have shifted steadily backward within the pre-trial phase the major checkpoints for judicial scrutiny of claims. The key developments consist of the Supreme Court’s summary judgment “trilogy” (1986), the rise of Daubert scrutiny for the admissibility of expert testimony (1993), the elaboration of a distinctive law of class action certification (circa 2006) and, most recently, the invigoration of pleading standards in the Court’s Twombly and Iqbal decisions (2007 and 2009). 

During the same period, an equally dramatic transformation has taken place with respect to litigation scholarship. Insights from economics, cognitive psychology, and finance – among other non-law disciplines – have broadened the vocabulary now available for analysis. Two big-picture points emerge from this literature: first, costs (especially, the ability to impose costs on one’s opponent) matter greatly to the choice whether to continue litigation or to settle; and, second, risk (or, more specifically, variance) matters in the pricing of civil claims via settlement, above and beyond calculations of expected value. 

The emergence of judicial checkpoints in the pretrial phase has elicited considerable debate – most strikingly, today, over the Court’s pleading decisions. At one level, those decisions are rightly seen as pushing against the ethos of the 1938 reforms that put into place our modern notice-pleading regime. Yet, in a deeper historical sense, we actually find ourselves today in much the same position as the 1938 reformers. Today, as then, there is a lingering – but, often, undertheorized – sense that procedure itself is having an undue and even deleterious effect on the pricing of claims via settlement. It is just that the procedure now suspected to be distortive consists of the 1938 reforms. This Essay explains, in particular, how the Court’s attention to pleading standards in recent years marks a shift of emphasis from the regulation of variance in the litigation process to a concern over cost imposition. 

The various pretrial checkpoints today exhibit a similar structural feature. They seek to manage variance or cost imposition by way of third-party judicial regulation – specifically, court rulings that signal “stop” or “go” on the road to trial. Evaluation of procedural doctrine as an enterprise of regulation opens up inquiry to the existence of other potential regulatory modes. This Essay concludes with examination of alternatives in the nature of first-party regulation (e.g., cost shifting) and regulation in the form of judicial action that would not be dispositive vis-à-vis trial but, rather, would seek to inform directly the pricing of claims in the settlement endgame.


April 10, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 9, 2010

Recent SCOTUS Petitions for Certiorari

SCOTUSblog reports this week on two recently filed cert. petitions that may be of interest:

Wilson v. Johnson (09-1143) presents the question: whether the denial of the appointment of counsel in a civil case is an order that is immediately appealable. The petition notes that "Nine courts of appeals have held that they are without jurisdiction to immediately review such orders; three have held that they possess jurisdiction to immediately review such orders; and one court of appeals has held that appellate jurisdiction depends upon the type of claim presented."

Mendoza v. Bridgestone Firestone North American Tire, LLC (09-1124) presents the question: can a party to a MDL proceeding conducted pursuant to 28 U.S.C. § 1407 seek to overturn an adverse forum non conveniens pretrial ruling by the transferee district court through mandamus to the circuit court with appellate authority over the transferor district court rather than the circuit court with such authority over the transferee district court after the cases are returned to the transferor district court for trial?

Links to the dockets, lower court opinions, and the cert. petitions are available here.


April 9, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Legg, Travers, Park & Turner on Australian Litigation Funding

Now on SSRN is a recent article by Michael Legg (University of New South Wales), Louisa Travers, Edmond Park & Nicholas Turner entitled Litigation Funding in Australia. Here's the abstract:

Litigation funding has been argued to be an important development in Australian civil litigation that provides access to justice, allows for the spreading of the risk of complex litigation and can improve the efficiency of litigation by bringing commercial considerations to bear. Since the High Court decision in Campbells Cash and Carry Pty Limited v Fostif Pty Ltd (2006) 229 CLR 386, the Australian litigation funding industry has enjoyed significant growth. However, the operation and proper constraints on litigation funding remains a live issue with concerns that the relatively unregulated nature of the litigation funding market creates the possibility for harm to consumers and the abuse of court processes. This paper reviews the development of litigation funding in Australia and the proposals for its regulation, including the decision in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (2009) 180 FCR 11 where the Full Federal Court found that the litigation funding arrangements under consideration constituted a 'managed investment scheme' that was subject to the requirements of the Corporations Act 2001 (Cth).


(Hat Tip: Legal Theory Blog)

April 9, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (1)

Thursday, April 8, 2010

Halberstam and Reimann on Federalism and Legal Unification

Daniel Halberstam and Mathias Reimann (University of Michigan Law School) Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Systems.

How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.


April 8, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

DRI Law Student Diversity Scholarship

DRI is currently accepting applications for its Law Student Diversity Scholarship:

"DRI announces its annual Law Student Diversity Scholarship program open to incoming second and third-year African American, Hispanic, Asian, Pan Asian and Native American students. Incoming second and third-year female law students are also eligible, regardless of race or ethnicity."

The deadline is May 3, 2010, and applicants must submit an essay (no more than 1,000 words) on the following topic:

Did Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal really break new ground and sound a death knell for plaintiffs in federal civil litigation; and is the “anti-Twombly and Iqbal” Notice Pleading Restoration Act of 2009 introduced by Senator Specter to require the federal courts to follow traditional civil procedure rules for filing lawsuits really necessary?

More details available here.

(Hat Tip: Austyn Sanders)

April 8, 2010 in Twombly/Iqbal | Permalink | Comments (0)

Harnett on Where We Go From Twombly and Iqbal

Professor Edward A. Harnett (Seton Hall University School of Law) has posted "Responding To Twombly and Iqbal: Where Do We Go from Here?" on SSRN.  It will be published in the Iowa Law Review Bulletin.

The abstract states:

As reflected in the title of their article, Inventing Tests, Destabilizing Systems, Professors Clermont and Yeazell contend that the Supreme Court in Twombly and Iqbal invented a “new and foggy test” for judging the sufficiency of a complaint and “have destabilized the entire system of litigation.” As they see it, the Court’s approach is “thoroughly new,” and the Court “effectively creat[ed] a civil procedure hitherto foreign to our fundamental procedural principles.” 

Elsewhere, I have offered a more-optimistic take on these cases, emphasizing the connections these decisions have with prior law and suggesting ways in which they can be tamed. See Taming Twombly—Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010). Rather than rehash those arguments here, I instead take up Professors Clermont and Yeazell’s challenging question, “Where Do We Go from Here?” and address several of the proposals made to respond to Twombly and Iqbal by statute or rule amendment. 

I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? My proposal has something to offer plaintiffs, defendants, and the judicial system. I believe it represents an improvement over the current law and better than other proposed legislative and rulemaking responses to Twombly and Iqbal. Surely it could be improved by the perspectives of others in the academy, on the bench, or at the bar. Nevertheless, in deciding where we go from here, stumbling in the right direction is better than standing still or trying to go backwards.


April 8, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 7, 2010

La Belle on Patent Litigation and Personal Jurisdiction

Megan La Belle (Catholic University - Columbus School of Law) has posted Patent Litigation, Personal Jurisdiction, and the Public Good to SSRN.

There is consensus among scholars, policymakers, and industry leaders that our patent system currently faces a crisis of confidence as a result of the proliferation of bad patents. For now, validity challenges asserted in litigation – usually as a defense to a claim of patent infringement – serve as the primary gatekeeper of patent quality. When an alleged infringer’s validity challenge is successful, the court invalidates the patent and the intellectual property enters the public domain where anyone may use it. This creates a “public good” which inures to the benefit of society at large. In recent years, scholars have proposed alternative reform measures to address the problem of bad patents, but little has been written about how our litigation system might be retooled to better serve the important public function of eradicating bad patents. This Article seeks to fill that void by examining, in particular, the underutilization of declaratory judgment actions to challenge suspect patents.

Validity challenges asserted in declaratory judgment actions have a significantly higher success rate than those raised in defense to infringement claims. Actions for declaratory relief can be particularly effective at invalidating bad patents because the alleged infringer rather than the patent holder chooses the forum and controls the timing of the suit. Yet declaratory relief actions make up a surprisingly small percentage of the total number of patent cases.

This Article argues that one reason so few declaratory judgment actions are filed is because of a longstanding but incorrect jurisdictional doctrine that precludes many alleged infringers from seeking declaratory relief in a convenient forum – the Federal Circuit’s categorical rule that patent holders will not be subject to personal jurisdiction in declaratory judgment actions based on cease-and-desist letters sent into the forum state. The Article then critically examines and rejects various possible justifications for that doctrine, ultimately demonstrating that the doctrine is both legally unsound and contrary to public policy. Finally, the Article concludes with a proposal that would empower alleged infringers with more robust declaratory judgment rights, facilitate validity challenges, and ultimately provide more of the public good of invalidating bad patents.


April 7, 2010 in Recent Scholarship | Permalink | Comments (0)

New York Times article on the legality of unpaid internships

As summer approaches in a tight job market and our students are becoming increasingly eager to find ways to gain experience and enhance their resumes, this New York Times article, "The Unpaid Intern, Legal or Not," might be of interest. The article considers legal issues associated with unpaid internships for students and recent grads. 

"With job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor. Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. . . . Many regulators say that violations are widespread, but that it is unusually hard to mount a major enforcement effort because interns are often afraid to file complaints. Many fear they will become known as troublemakers in their chosen field, endangering their chances with a potential future employer. The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships."


April 7, 2010 in Current Affairs, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 6, 2010

Hot Off The Presses: Recent Articles of Interest

With hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Judy A. Clausen, Personal Jurisdiction Based on Internet Activities: Oldfield v. Pueblo De Bahia Lora, S.A.--the Eleventh Circuit Finally Discusses Zippo but Leaves Lower Courts Needing More Guidance, 11 Fla. Coastal L. Rev. 53 (2009)

Ezra Friedman & Abraham L. Wickelgren, Chilling, Settlement, and the Accuracy of the Legal Process, 26 J.L. Econ. & Org. 144 (2010)

Michael J. Kaufman & John M. Wunderlich, The Unjustified Judicial Creation of Class Certification Merits Trials in Securities Fraud Actions, 43 U. Mich. J.L. Reform 323 (2010)

Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009)

Russell Smyth, The Business of the Australian State Supreme Courts over the Course of the 20th Century. 7 J. Empirical Legal Stud. 141 (2010)

Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should, 61 Hastings L.J. 337 (2009)

Abraham L. Wickelgren, A Right to Silence for Civil Defendants? 26 J.L. Econ. & Org. 92 (2010)

The Changing Shape of Federal Civil Pretrial Practice. Foreword by Catherine T. Struve; articles by Scott Dodson, Edward A. Hartnett and Elizabeth M. Schneider. 158 U. Pa. L. Rev. 421-570 (2010)

Catherine T. Struve, Foreword: Procedure as Palimpsest, 158 U. Pa. L. Rev. 421 (2010)

Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. Pa. L. Rev. 441 (2010)

Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010)

Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517 (2010)

Gregory M. Capone, Note, You Got Served: Why an Excusable Neglect Standard Should Govern Extensions of Service Time After Untimely Service Under Rule 4(m), 83 St. John's L. Rev. 665 (2009)

Ryan Griffin, Note, Litigating the Contours of Constitutionality: Harmonizing Equitable Principles and Constitutional Values when Considering Preliminary Injunctive Relief, 94 Minn. L. Rev. 839 (2010)

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

Monday, April 5, 2010

Dodson on Federal Pleading and State Discovery

Professor Scott Dodson (William & Mary School of Law) has posted "Federal Pleading and State Presuit Discovery" on SSRN.  It will be published in the Lewis & Clark Law Review.

The abstract states:

This Symposium Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal. Several states allow presuit discovery in state courts. The Article explores the utility and limitations of using these state presuit discovery mechanisms in state court to gain access to information that plaintiffs need to survive a federal motion to dismiss under Twombly and Iqbal.


April 5, 2010 in Discovery, Federal Courts, Recent Scholarship, State Courts, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Seiner and Gutman on Ricci and the New Disparate Impact

Joseph Seiner (South Carolina) and Benjamin Gutman have posted on SSRN their forthcoming article, The New Disparate Impact, 90 B.U. L. Rev (forthcoming 2010). Here's the abstract:

Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities.  A cryptic passage at the end of the Supreme Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), signals a sea change for this disparate-impact doctrine.  Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination.  We show that the opinion has also created a new affirmative defense for employers facing claims of disparate impact.  This Article marks the first time that this new defense has been identified and explained in the legal literature.  Before Ricci, disparate impact was a purely no-fault doctrine.  An employer was liable if its employment practice had an unlawful disparate impact, even if the employer did not know about the impact or intend to subject its employees to an unlawful practice.  The focus of litigation was not on the employer’s state of mind, but rather on the aspects of the employment practice.  After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action.  If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.

This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination.  Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law.  In this Article, we parse the language of Ricci to derive the new affirmative defense.  We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers.  We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons.  We thus explain how Ricci heralds a new disparate impact.


April 5, 2010 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Donohue on the State Secrets Doctrine

Laura Donohue (Georgetown University Law Center) has posted The Shadow of State Secrets Doctrine to SSRN.

The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention.

Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. In cases stemming from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation, the government defended both the suit and state secrets assertions. The doctrine also played a role in the criminal context.

Collectively, these cases underscore the importance of looking more carefully at how the doctrine actually works. They also suggest the emergence of a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets assertion. And they challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors.


April 5, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)