May 8, 2010
Sherry on Foundational Facts
Professor Suzanna Sherry (Vanderbilt University Law School) has posted "Foundational Facts and Doctrinal Change" on SSRN. It will be published in the University of Illinois Law Review.
The abstract states:
May 7, 2010
Next Week's Conference on Civil Litigation at Duke University
The National Law Journal has this report on the conference, which is sponsored by the U.S. Judicial Conference's Advisory Committee on Civil Rules. Here is the Purpose Statement from the conference website:
At the request of the Standing Committee on Rules of Practice and Procedure, the Advisory Committee on Civil Rules is sponsoring a conference at Duke University School of Law on May 10 and 11, 2010 to explore the current costs of civil litigation, particularly discovery, and to discuss possible solutions. The Conference will rely on new empirical research done by the Federal Judicial Center to assess the degree of satisfaction with the performance of the present system and the suggestions of lawyers as to how the system can be improved. This research will be supplemented by additional empirical data. A major portion of the Conference will be devoted to an assessment and discussion of the empirical research.
The Conference will draw on insights and perspectives from lawyers, judges and academics concerning improvements that could be made in the federal civil litigation process to effectuate the purposes of the Civil Rules – "to secure the just, speedy, and inexpensive determination of every action and proceeding." In addition to considering the results of the empirical research, panels of experts will consider the range of issues in the federal civil litigation process that could be used more efficiently to accomplish the purposes of the Rules, including the discovery process (particularly E-Discovery), pleadings, and dispositive motions. Other topics to be considered include judicial management and the tools available to judges to expedite the process, the process of settlement, and the experience of the states.
While the Conference will explore these issues, an important part of the Conference will be to encourage follow up on the subjects explored at the Conference. It is hoped that the papers and discussion at the Conference will frame an agenda for possible amendments to the Federal Rules of Civil Procedure, and that they will be a basis for judicial education through the Federal Judicial Center and for further action by the Bar.
Information on the conference is available here (including links to the agenda and to empirical research and papers relevant to the conference), and on the U.S. Courts' Federal Rulemaking website and this press release.
May 6, 2010
Bone on Dworkin and Procedural Rights
Professor Robert Bone (Texas) has posted on SSRN his essay Procedure, Participation, Rights, 90 B.U. L. Rev. (forthcoming 2010). Here's the abstract:
This essay is a contribution to a symposium on Professor Ronald Dworkin’s forthcoming book, JUSTICE FOR HEDGEHOGS. The essay focuses on the idea of procedural rights. It asks whether procedural rights make sense in American civil litigation, where “right” is understood in the Dworkinian sense of limiting, resisting, or trumping arguments based on furthering a collective social goal or improving aggregate welfare. Professor Dworkin addressed this question in a wonderfully rich and provocative essay published in the early 1980s, entitled “Principle, Policy, Procedure.” I take a critical look at Professor Dworkin’s argument and use the opportunity to explore why it so difficult to articulate a coherent theory of procedural rights. In particular, Part I of my essay argues that the best interpretation of American civil adjudication is likely to recognize procedural rights with a curious property: the right must be defined at its core in a way that somehow yields to arguments of high social cost at the same time as resisting those arguments in the way a right is supposed to do. Part II describes Professor Dworkin’s theory, explains how it meets the definitional challenge, and criticizes its main elements. Part III examines two competing theories of procedural rights and explains why they are also problematic. The essay concludes by calling for more work on the nature of procedural rights in civil litigation. There is much at stake. If there is no coherent account of procedural rights, then radical reforms justified on utilitarian grounds should receive much more favorable attention than they have to date.
Law on Rigging the Federal Courts
Professor David S. Law (Washington University St. Louis Department of Political Science) has posted "How to Rig the Federal Courts" on SSRN. It will be published in the Georgetown Law Journal.
The abstract states:
May 5, 2010
Conference Announcement: Junior Faculty Federal Courts Workshop
The University of Illinois College of Law is pleased to announce that the http://www.law.uiuc.edu/faculty-admin/federal-court-workshop.asphttp://www.law.uiuc.edu/faculty-admin/federal-court-workshop.asp Third Annual Junior Faculty Federal Courts Workshop will take place at the Club Quarters, Centrol Loop, 111 W. Adams St., Chicago, IL on October 7-8, 2010. Last year’s workshop, held in October 2009 at the Michigan State University College of Law, was a resounding success attended by junior scholars from 30 law schools, resulting in publications in numerous preeminent journals. We aim to continue this tradition.
The workshop pairs junior and senior, federal courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop are Richard Freer (Emory School of Law), Jim Pfander (Northwestern Law School), Martin Redish (Northwestern Law School), and Louise Weinberg (University of Texas School of Law).
Drafts of papers will be distributed to participants prior to the workshop, which begins with dinner on Thursday, October 7. On
Friday, October 8, following breakfast, two panels of junior scholars,
composed of three to four persons each, will present papers in the
morning. After lunch, two panels of junior scholars will present
papers in the afternoon. Each panel will be assigned a senior scholar
who will provide commentary on the paper and lead the group discussion.
The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course. Those who do not currently hold a faculty appointment but expect that they will during the 2011-2012 academic year are also welcome. There is no registration fee for this conference.
Meals and Accommodations
The University of Illinois College of Law is pleased to provide all the attendees with meals while attending the workshop. Additionally, the College of Law has arranged for the Club Quarters to provide a block of rooms for conference attendees at a discounted rate. Please call 212-575-0006 to make a reservation. The membership code is University of Illinois, and the group code for the conference is LAW107. Discounted Rooms are available for up to two nights (October 7-9), and the discounted rate will be available until August 24, 2010.
Those who plan to attend the workshop are asked to RSVP by clicking the link below no later than July 31, 2010. Please be sure to indicate whether you will attend the dinner on October 7.
Persons wishing to present a paper may upload an abstract by clicking the link below. All abstracts must be submitted by June 30, 2010. A committee of past participants will select papers no later than July 15, 2010.
Gelinas on Judicial Independence in Canada
Professor Fabien Gelinas (McGill University) has posted "Judicial Independence in Canada: A Critical Overview" on SSRN. It will be published in "Judicial Independence in Transition -- Strengthening the Rule of Law in the OSCE Region," Anja Seibert-Fohr, ed. (Max Planck Institute Series, "Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht, Heidelberg: Springer, 2010).
The abstract states:
May 4, 2010
Borgen & Chan on Iqbal and Wage/Hour Actions
Today's U.S. Law Week features an article by David Borgen and Lin Chan entitled Clash of the Titans: Iqbal and Wage and Hour Class/Collective Actions (78 U.S.L.W. 2643). It begins:
"The U.S. Supreme Court's new pleading standards have set the stage for a new 'clash of the titans,' as emboldened employers seek to utilize their new weapon against the current heavyweight of the courts' dockets, the wage and hour class and collective actions. As expected, management counsel have rushed into the battlefield filing newly styled motions to dismiss. However, the wage-and-hour causes of action have proven to be resistant to this new attack."
May 3, 2010
NY Times Profiles Judge Hellerstein and the 9/11 Litigation
The New York Times has a piece today profiling Judge Hellerstein. It discusses his background, impressions of his motivations for how he has shaped the 9/11 litigation, and opinions as to the propriety of rejecting the MDL settlement on fairness grounds.
From the article:
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years.
Judge Hellerstein lost several former clients in the collapse of the twin towers on 9/11. But legal experts suggest that he has a bigger motivation for championing the ground zero victims: he may see his handling of the 9/11 cases as his legacy.
But lawyers who have sparred with Judge Hellerstein suggest that his moral compass and commitment to doing what he thinks is right have sometimes led him to overreach.
AALS Section on Litigation Issues Call for Papers
The AALS Section on Litigation has issued a call for papers for the 2011 AALS Annual Meeting on "Current Issues in Judicial Disqualification." The deadline for submitting a draft paper is September 1, 2010.
The call for papers states:
[H/T: Michael Martin]
May 2, 2010
Bauer and Braun on the Role of Class Actions in Long-Term Performance of Distressed Firms
Rob Bauer and Robin Braun (Maastricht University) have posted Long-Term Performance of Distressed Firms: The Role of Class Action Lawsuits to SSRN.
Does shareholder litigation pay off for investors over long horizons and how much does the type of allegation matter‘ We study whether a disciplining effect occurs for distressed firms and their managers and examine two different groups of allegations. Allegations of violations of duty of loyalty effect individuals only, but duty of care pertains to the corporate entity. After litigation we observe a general transformation in firm characteristics and risk exposures, which is consistent with theory. Although generally negative, short- and long-term performance effects differ substantially between types of allegations. We observe performance reversals only in firms with individual directors accused of insider trading. Effects are similar for firms with triggering events that precede the initiation of a lawsuit. At the same time we fail to observe a simultaneous decrease in financial health in the form of their expected default frequency. Our results have important implications for regulator and institutional investor decision-making and monitoring strategies: whether to use litigation to exert control on managers, even in the presence of dual holdings of debt and equity.