Saturday, May 29, 2010
Friday, May 28, 2010
Thursday, May 27, 2010
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.
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.
Wednesday, May 26, 2010
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:
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."
Tuesday, May 25, 2010
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.
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
Irvin B. Nathan
Office of the General Counsel
U.S. House of Representatives
Lonny S. Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Arthur D. Hellman
Professor of Law
University of Pittsburgh School of Law
Monday, May 24, 2010
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:
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.
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)