Saturday, May 29, 2010

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]


May 29, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Friday, May 28, 2010

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:

Continue reading

May 28, 2010 | Permalink | Comments (0)

Thursday, May 27, 2010

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.


May 27, 2010 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, In the News, Mass Torts, MDLs | Permalink | Comments (0)

"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.


May 27, 2010 in Current Affairs, Discovery, Mass Torts | Permalink | Comments (0) | TrackBack (0)

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:

Continue reading

May 27, 2010 | Permalink | Comments (0)

Wednesday, May 26, 2010

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.


May 26, 2010 in International Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

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."

Continue reading

May 26, 2010 in Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, May 25, 2010

SCOTUS Grants Cert in Arbitration Case

From the 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.


May 25, 2010 in Supreme Court Cases | Permalink | Comments (0)

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


May 25, 2010 in Current Affairs, Federal Courts, In the News, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, May 24, 2010

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.


May 24, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sebok on Inauthentic Claims

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

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.


May 24, 2010 in Recent Scholarship | Permalink | Comments (0)

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: (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)



May 24, 2010 | Permalink | Comments (0)