Civil Procedure & Federal Courts Blog

SCOTUS Cert. Grant on Rule 15(c)(1)'s Relation Back Provision

The Supreme Court granted certiorari today in a case involving the relation-back provision of FRCP 15(c)(1). The case is Krupski v. Costa Crociere, S.p.A., No. 09-337. Links to the docket, filings, and the Eleventh Circuit's opinion are available at SCOTUSBlog. For additional coverage, see U.S. Law Week's Supreme Court Today.

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SCOTUS: No cameras in the Prop 8 trial courtroom

The Supreme Court has blocked cameras in the San Francisco federal courtroom where the challenge to California's Proposition 8 is proceeding to trial.  SCOTUSblog has full coverage.

RJE

New rules of Civil Procedure for Ontario courts

While those of us in the U.S. have been wringing our hands over the procedural reforms that both the Rules drafters and the Supreme Court have handed us over the past few years, our neighbors to the north have been busy crafting some new rules of their own.  These rules came into effect on January 1, 2010.

Three of these reforms are particularly interesting because they address perceived problems that have motivated reform here as well: lengthy and expensive discovery and role of the summary judgment procedure.

At summary judgment, a judge may now “weigh evidence, evaluate credibility, and draw inferences from the evidence  (Rule 20.04(2.1)) and can order oral evidence [mini-trial] with or without time limits (Rule 20.04(2.2).

On the discovery end, the rule addressing the general scope of discovery has changed from “relating to any matter in issue” to “relevant to any matter in issue,” (Rule 30.02(1)) thus narrowing the world of discoverable material.

The most interesting discovery reform is that Ontario has introduced a "proportionality" requirement in discovery, which I am reproducing in full:

Rule 29.2.03(1): In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

The full set of rules, annotated to show the 2010 reforms are available here and the Ministry of the Attorney General gives a nice online summary here.

RJE

Recent Class Action Against Italian Banks

Italy's law allowing class actions recently celebrated its first anniversary, and BNA's Class Action Litigation Report has a story on the first such class action against an Italian financial institution. It was filed last week against Banca Intesa Sanpaolo IMI and Unicredi SpA, alleging that the banks overcharged customers on overdraft fees.

See the full story here.

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Brand on Forum Agreements in International Contracts

Professor Ronald Brand (University of Pittsburgh School of Law) has posted "Consent, Validity and Choice of Forum Agreements in International Contracts" on SSRN.

The abstract states:

The doctrine of separability in international contracts often leads to requests for a court or arbitral tribunal to consider challenges to both the existence and validity of a choice of forum clause prior to hearing party positions on the existence and validity of the remainder of the contract. What is not always clear, however, is what law governs the consideration of choice of forum issues. This inquiry contains at least two important parts: whose law is to govern the determination, and which law (general contract law, procedural law, law on dispute resolution, etc.) is to be applied. This chapter considers the provisions of each the New York Arbitration Convention, the Brussels I Regulation, and the 2005 Hague Convention on Choice of Court Agreements that are applicable to the questions of consent to and validity of choice of forum agreements. Each has different language, without clear distinction to why the language differences exist. The doctrines of separability and competence-competence usually are involved in the determination of what law governs the existence and validity of choice of forum agreements. The existence of a choice of forum agreement and its validity are distinctly different questions, and require consideration beyond the law of jurisdiction or arbitration in order insure that a party to a dispute is not subjected to a forum that would not otherwise have jurisdiction over that party and to whose jurisdiction that party has not consented.

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Buzbee on Federalism

William W. Buzbee (Emory University School of Law) has posted 'Federalism Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,' in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question to SSRN.

Abstract:     
This chapter, from the Preemption Choice book published by Cambridge University Press, analyzes the implications of regulatory regimes utilizing preemptive regulatory ceilings or floors. Floors set a minimum required level of regulatory protection or stringency, and hence leave room for state and local governments and common law regimes to provide further protections and experiment with innovative strategies. Ceilings, in contrast, involve federal requirements that leave no room for different choices, but provide greater regulatory certainty. Many areas of environmental and risk regulation couple limited floor preemption with delegated program federalism and savings clauses. Until late in the Bush Administration, imposition of ceiling preemption was a rarity, and it remains a rarity in statutory law outside of regulation setting physical mandates and involving production benefitting from economies of scale. Starting around 2005, however, numerous federal agencies and the Department of Justice increasingly asserted that agency actions had preemptive effect and acted as a regulatory ceiling. Ceilings function as a unitary standard and hence are often favored by targets of regulation due to how they preclude other regulators from taking diverse and sometimes more stringent actions. Ceilings also, however, create risks of regulatory stasis. By eliminating the limited institutional diversity retained by regulatory floor strategies, regulatory ceilings can eliminate incentives and markets for regulatory learning, experimentalism, pragmatic improvement and innovation. These regulatory risks are especially great if preemptive ceilings are construed to eliminate the possibility of common law litigation, with its different actors and incentives to update and uncover information long after regulators may have finished their work. The chapter closes by explaining how preemptive ceilings are particularly problematic in areas, such as climate change regulation, where understanding of a regulatory challenge is limited, risks of regulatory failures are substantial, or the problem is itself a moving target. Retaining a diversity of regulatory actors and regulatory modalities through floor preemption strategies can help counteract such risks.

RJE

Bobek on Courts in the Czech Republic

Michal Bobek has posted The Administration of Courts in the Czech Republic: In Search of a Constitutional Balance to SSRN.

Abstract:     
This article focuses on the administration of courts in the Czech Republic and Slovakia. The comparison of the recent developments and case law in both countries suggests that in post-Communist societies, the problems encountered in the area of the administration of courts are the same irrespective of the institutional design chosen, i.e. irrespective of the fact whether or not a country established a self-standing judicial council or not. Moreover, as the current developments in Slovakia show, the establishment of an independent judicial council in a politically immature environment may even lead to certain “hijacking” of a new institution by the old Communist judicial elites and the sealing off of the institution behind a veil of judicial independence.

RJE