Civil Procedure & Federal Courts Blog

Call for Papers: International Conference on Judicial Cooperation Among Courts in Europe and the US

The following Call for Papers has been issued for the International Conference on Judicial Cooperation Among Courts in Europe and U.S.: A Comparative Approach:

   The International Conference on Judicial Cooperation Among Courts in Europe and U,S.: a Comparative

Approach will be held at the European University Institute in Florence, Italy, December 13-14, 2010.
Colleagues are invited to submit paper proposals and related inquiries to the conference organizers c/o Oscar Chase by e-mail off line.
The Conference is co-sponsored by the Opperman Institute for Judicial Administration at NYU and the Network of Chief Justices of European Supreme Courts. Funds are available for transportation (coach) to and lodging in Florence.
   Judges serving on different courts cooperate across jurisdictional borders in a variety of ways. They belong to national and international organizations, serve on law making bodies (such as the Judicial Conference) and on advisory panels, and they attend conferences on substantive and administrative matters. This Conference will explore the questions whether and how further cross-jurisdictional cooperation should develop. For example, the Association of Chief Justices of the Supreme Courts of the EU member nations is considering conferring regularly on substantive issues with the goal of agreeing on approaches to common legal issues.
   Members of the U.S. and European judiciaries and legal academics from both continents will examine such specific topics as current judicial cooperative efforts; the constitutional dimension; the instruments of judicial cooperation; and the governance of judicial cooperation, among others.
Paper proposals of  no more than  three pages should describe the topic proposed, the methodology anticipated, and the projected thesis. Papers will be presented by the authors at the conference for comment. Submissions by June 25, 2010 willl be appreciated.

[H/T: Oscar Chase]

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Faculty Hiring Announcement: McGill University

McGill University's Faculty of Law anticipates making one or more entry-level tenure-track hires. One area of emphasis is civil procedure. Below is the full announcement:

McGill University’s Faculty of Law invites applications from candidates with a strong commitment to innovation and excellence in teaching and research, and who will make a creative contribution to the governance of the Faculty and the University.

The Faculty of Law anticipates offering one or more entry-level tenure-track positions, starting on January 1, 2011 or July 1, 2011.

The Faculty’s research programs, pedagogical initiatives, and academic priorities all reflect a central commitment to legal traditions, comparative law and internationalization of law. In conjunction with this central theme, the Faculty has identified four overall areas of academic priorities:

• Transsystemic Legal Education;
• Trade, Mobility and Enterprise;
• Public Policy and Private Resources;
• Human Rights and Legal Pluralism.

For this recruitment cycle, we seek applications from candidates with demonstrated expertise in fundamental private law, international trade law, or civil procedure and dispute resolution.

Candidates must envisage teaching and research in several substantive fields of law and we encourage diverse approaches to law, legal research and legal education. Given the bilingual environment of our Faculty, successful candidates will be required to evaluate written and oral work presented in both English and French.

Our undergraduate curriculum represents an international benchmark for contemporary legal education and leads to the joint award of the Bachelor of Civil Law (B.C.L.) and Bachelor of Laws (LL.B.) degrees. The core of the undergraduate curriculum is taught transsystemically, across borders shaped by legal traditions and systems, notably those of the common and civil law. Our graduate programme is comprised of research degrees at the Master’s and Doctoral levels as well as a non-thesis LL.M.

The Faculty maintains a research environment marked by a strong sense of collegiality through which ongoing intellectual and professional development of all professors is encouraged. In addition, the Faculty is home to a vibrant trans-disciplinary research community of Institutes and Centres.

McGill University is committed to equity in employment and diversity. It welcomes applications from indigenous peoples, visible minorities, ethnic minorities, persons with disabilities, women, persons of minority sexual orientations and gender identities and others who may contribute to further diversification. All qualified applicants are encouraged to apply; however, in accordance with Canadian immigration requirements, priority will be given to Canadian citizens and permanent residents of Canada.

How to apply

Applications, including a detailed cover letter, a curriculum vitae, up to three samples of published research and the names and addresses of three referees, are now being accepted for this competition and must be submitted no later than September 15, 2010.

Applications should be addressed to Professor Geneviève Saumier, Chair, Staff Appointments Committee, Faculty of Law, McGill University. Applications should be sent by electronic mail to Linda Coughlin [mailto:linda.coughlin@mcgill.ca].

Alternatively, applications may be sent by mail to:

Faculty of Law
Staff Appointments Committee
3644 Peel Street
Montreal, QC H3A 1W9

(Hat Tip: SSRN's Legal Scholarship Network)

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Gulf Spill Litigation: To Stay or Not to Stay

The National Law Journal reports that two federal judges have come to opposite rulings about whether to stay litigation until decisions about consolidation are made and more potential lawsuits are filed.

As I have written previously, I believe that courts should proceed with caution when casting too wide a consolidation net in the aftermath of a major catastrophe.  The problems of whether it is fairer or more efficient for cases to move forward on their own or to be consolidated with other cases is a serious question for which I do not believe there are clear or easy answers.

RJE

"To Stay or Not to Stay" the Gulf of Mexico Oil Spill Cases

Two federal courts have responded to BP's motions to stay law suits regarding the oil spill in the Gulf of Mexico pending a determination of a multidistrict litigation panel on whether to combine the 130+ cases.  One granted the stay and one denied it.  A federal court in Mobile, Alabama denied BP's request to delay filing an answer, while another federal court in New Orleans, Louisiana granted BP's motion to stay proceedings. Judge Martin Feldman based his decision to stay the New Orleans proceedings on the "grave potential of conflicting discovery orders," which poses "a hardship for defendants [and] mocks an efficient and orderly judicial system."

The National Law Journal has more about the conflicting decisions on BP's motions to stay proceedings here.

~clf

Faculty Hiring Announcement: University of New Mexico

We blogged earlier about a civil procedure opening at the University of New Mexico School of Law. Courtesy of SSRN's Legal Scholarship Network, here's a more detailed announcement:

The University of New Mexico School of Law invites applications for a faculty position beginning fall of 2011 for a faculty member whose primary teaching and research interests are in Civil Procedure. The position is full-time and may be probationary leading to a tenure decision, tenured, or visiting. Salary and terms of employment will depend upon the qualifications of the successful candidate.

Candidates must possess a J.D. or equivalent legal degree. Preferred qualifications include prior teaching or civil litigation experience; teaching interests in Civil Procedure, including Introductory and Advanced Civil Procedure courses, Federal Jurisdiction and Conflicts of Law. Preferred qualifications also include a record or promise of excellence in teaching and scholarship.

For best consideration, applicants should apply by June 30th, 2010. The position will remain open until filled. Applicants should attach their cover letter and CV to their online application via the UNMJobs website:

https://unmjobs.unm.edu/

The position is listed as posting number 0806250.

The University of New Mexico is an Affirmative Action/Equal Opportunity Employer.

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Michael Bohlander on Recruitment of ICC Judges

Professor Michael Bohlander (Durham Law School) has posted "Pride & Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts" on SSRN.  It is published in the New Criminal Law Review.

The abstract states:

Investigates the law and practice of recruitment of judges to international criminal courts and recommends the adoption of more stringent selection criteria and the establishment of proper training courses and a pool of adequate candidates.

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Decision of Interest: Of Summary Judgment and Ferrets

The First Circuit's decision in Puerto Rico American Insurance Co. v. Rivera-Vázquez, No. 08-2012, 2010 WL 1781929, 2010 U.S. App. LEXIS 9224 (May 5, 2010), deals with a local "anti-ferret" rule, so named because it is "aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record."

As the Court explains:

Local Rule 56 of the United States District Court for the District of Puerto Rico is such an anti-ferret rule. It requires a party moving for summary judgment to submit a "separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact." D.P.R.R. 56(b). Each fact must be supported by a citation to a specific paragraph or page of the summary judgment record. D.P.R.R. 56(e).

A party opposing a motion for summary judgment must submit a counter-statement, which "shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation." D.P.R.R. 56(c). Properly supported facts contained in an SUF [statement of uncontested facts] shall be deemed admitted unless controverted in the manner prescribed by the local rule. D.P.R.R. 56(e).

In this case, the parties filed cross-motions for summary judgment, and both parties ran afoul of the anti-ferret rule. This begged the question: which party's facts should be deemed admitted?

The First Circuit's answer: neither one. "Faced with that situation, we think that the court should have denied both motions without prejudice and directed the parties to refile."

For additional coverage see U.S. Law Week ("Mutual Noncompliance With 'Anti-Ferret' Rule Guts Cross-Motions for Summary Judgment").

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SCOTUS Grants Cert in Arbitration Case

From the jurist.org report:

The court granted certiorari to another federal preemption case on Monday in AT&T Mobility v. Concepcion [docket; cert. petition, PDF]. The court will decide whether the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings.

RJE

Congressional Hearing on the Removal Clarification Act of 2010 (H.R. 5281)

The House Judiciary Committee's Subcommittee on Courts and Competition Policy is holding a hearing this afternoon (5/25/2010, 2:00 p.m.) on H.R. 5281, the "Removal Clarification Act of 2010."

The bill would amend the federal officer removal statute (28 U.S.C. § 1442) to provide that "civil action[s]" removable under § 1442 "include any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued" from a federal officer. The bill would also exempt federal officer removal rulings from 28 U.S.C. § 1447(d)'s bar on appellate review of district court remand orders.

Go to the following links for the bill's text and legislative history and more information about the hearing. A link to a live webcast is available here, or you can stop by 2141 Rayburn House Office Building. The witness list includes:

Beth S. Brinkmann
Deputy Assistant Attorney General, Civil Division
U.S. Department of Justice
Washington, DC

Irvin B. Nathan
General Counsel
Office of the General Counsel
U.S. House of Representatives
Washington, DC

Lonny S. Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Houston, TX

Arthur D. Hellman
Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA

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Vladeck on Terrorism Trials and Federal Courts

Professor Stephen I. Vladeck (American University Washington College of Law) has posted "Terrorism Trials and the Article III Courts after Abu Ali" on SSRN.  It will be published in the Texas Law Review.

The abstract states:

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian - rather than military - jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule - what we might characterize as either a “distortion effect” or a “seepage problem.”

Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article - the trial of Ahmed Omar Abu Ali.

As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal - especially where the defendant is a U.S. citizen.

To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation - including its triumphs and its shortcomings - will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.

~clf

Sebok on Inauthentic Claims

Anthony Sebok (Cardozo School of Law) has posted The Inauthentic Claim to SSRN.

Abstract:     
This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article that the foundation of both doctrines is based on something I call the theory of “the inauthentic claim.”

The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. It does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.

This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. I conclude that neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third party investment in litigation.

RJE

Faculty Hiring Announcement

The University of New Mexico School of Law is looking to hire a number of new faculty, including a position in the civil procedure area.

Applicants should attach their cover letter and CV to their online application via the UNMJobs website: https://unmjobs.unm.edu/ (the civil procedure position is posting number 0806250). Professor Elizabeth Rapaport is the head of the hiring committee.

(Hat Tip: Erik Gerding via The Conglomerate)

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