Saturday, 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:

Doctrine is at the center of law and legal analysis. This Article argues that we have fundamentally misunderstood its nature. The conventional approach to legal doctrine focuses on theory and applications. What is the doctrine designed to do and how does it function? But many doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, hidden element. They are built on foundational facts: potentially contested factual assumptions embedded in the doctrinal structure itself. Foundational facts are judges' generalized and invisible intuitions about how the world works. Whether a defendant acted in a particular way out of a particular motive are decisional, rather than foundational, facts. But the likelihood of actors in defendant's position acting that way or having that motive are foundational facts, and doctrinal rules - including burdens of proof and standards of review - will be structured differently depending on whether judges assume a high or low likelihood. Foundational facts thus drive doctrine. Without an understanding of a doctrine's foundational facts, we cannot adequately understand the doctrine and its changes over time. Foundational facts only come to light when doctrine shifts, seemingly inexplicably and often without judicial acknowledgment that anything has changed. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the doctrinal change. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrine and its underlying assumptions.


May 8, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, 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 7, 2010 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, 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.


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

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:

Courts, like other policy-making institutions, can be rigged. They can be rendered highly responsive to the wishes of whoever happens to be in power, for example, or they can be imbued with an enduring bias that resists eradication by future governments. But the most familiar strategies for achieving such objectives – namely, court-packing and gerrymandering – have their limitations; their policy impact is temporary and not especially deep. A more effective way to bias the policy output of the courts in a lasting and profound manner is to alter the internal structure and practices of the judiciary itself.

This Article sets forth a institutional design strategy for entrenching a lasting ideological bias in the federal courts. This strategy draws heavily upon a close examination of the Japanese judiciary, which is reliably conservative for reasons having much to do with its own design. Ideological entrenchment poses three requirements: power-imbalancing, wherein actors within the institution who possess the desired bias are empowered relative to others; insulation, wherein the institution is insulated from outside efforts to alter its course; and stabilization, wherein stability-inducing mechanisms are embedded within the institution to ensure that it does not deviate over time. All three requirements are satisfied by a strategy of delegating power over sensitive decisions, including those involving personnel matters, to ideologically reliable, self-replicating agents who are not vulnerable to political regime change.

This strategy can be implemented via a package of specific institutional mechanisms that are not only consistent with the constitutionally fixed characteristics of the federal judiciary, but also exploit those very characteristics for even greater effect. These mechanisms include the creation of a new intermediate appellate court with the ability to select its own members; the introduction of procedural rules that would effectively restrict the Supreme Court’s appellate docket; and a comprehensive overhaul of the law clerk system that would forge the clerks into a collective body, establish their independence from the judges whom they nominally serve, and subject them to a combination of bureaucratic supervision and oversight by the legal academy.


May 6, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 5, 2010

Conference Announcement: Junior Faculty Federal Courts Workshop

The University of Illinois College of Law is pleased to announce that the 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).

Workshop Agenda

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.


May 5, 2010 in Conferences/Symposia | Permalink | Comments (0)

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:

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto pre-existing constitutional arrangements, the fundamentals of which are largely unwritten.

The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701. Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state. 

The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.


May 5, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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 4, 2010 in Class Actions, Federal Rules of Civil Procedure, In the News, Twombly/Iqbal | Permalink | Comments (0)

Monday, 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.


May 3, 2010 in Current Affairs, Mass Torts, MDLs | Permalink | Comments (0)

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:

In connection with the January 2011 Annual Meeting of the Association of American Law Schools in San FranciscoCalifornia, the AALS Section on Litigation will be sponsoring a panel discussion on "Current Issues in Judicial Disqualification" (the "Program").  The Sections on Professional Responsibility and Civil Procedure are co-sponsoring the Program, which is tentatively scheduled for Friday January 6, 2011 from 4:00pm-5:45pm.

The legal landscape for judicial disqualification has received a few recent jolts.  In Caperton v. A.T. Massey Coal Co., 556 U.S. ___, 129 S. Ct. 2252 (June 2009), the United States Supreme Court ruled that due process required disqualification of a West Virginia supreme court justice whose campaign received $3 million in campaign support (via independent expenditures, not direct campaign contributions, which were limited to $1,000 under state law) from Massey's CEO.  In Citizens United v. Federal Election Commission, 558 U.S. ___, 130 S. Ct. 876 (January 2010), the Supreme Court invalidated restrictions on direct corporate expenditures concerning political issues, raising the stakes with regard to potential appearances of partiality resulting from judicial electoral processes (the scope of the decision remains a matter of debate, as reflected in the famous dust-up between President Obama and Justice Alito during the 2010 State of the Union address).  These Supreme Court decisions came in the wake of the ABA's 2007 Model Code of Judicial Conduct, which recommended that states require disqualification in cases of substantial campaign contributions, as well as the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which invalidated many restrictions on judicial campaign speech.  With interest groups' asserting themselves into judicial elections with zeal, and scholars' noting the risk of judges' unconscious bias, issues of judicial disqualification are more prominent than ever in litigation.

The Program will explore the current shape of judicial recusal, including efforts to limit the influence of money in judicial elections and the degree to which the introduction of expanded due process considerations has altered the disqualification equation.  The Program will include a speaker selected from this Call for Papers.  Eligible papers may address any topic related to judicial disqualification, including regulation of campaign spending, or the degree to which "independent expenditures" on behalf of a candidate or other support for or relationships with a candidate require disqualification.  Assessments of CapertonCitizens United, or other key judicial decisions are within the scope of the Program topic.  These are only examples; papers may be submitted on any topic relevant to the Program's theme.  Both essay- and article-length papers are welcome.  The selected author will be invited to participate in the Program, at the expense of the author's institution.  The Review of Litigation at the University of Texas has agreed to publish the winning paper and other articles submitted by panel members (subject to theReview's final approval of the articles).  The Review is well known for its publication of scholarship related to litigation, civil procedure, and dispute resolution.

The deadline to submit a draft paper is September 1, 2010 Please e-mail the draft paper to Professor Michael W. Martin, Chair of the Section on Litigation, at  Decisions will be communicated no later than October 1, 2010.

[H/T: Michael Martin]


May 3, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Sunday, 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.


May 2, 2010 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)