Thursday, June 10, 2010
Hello, Blog Readers.
The AALS Mid-Year Meeting begins tomorrow. As announced last week, we here at the Civil Procedure and Federal Courts Profs Blog invite you to join us for happy hour on Friday, June 11 at 7:00 P.M. at Ardesia (52nd St. between 10th and 11th Avenues).
short walk from the Sheraton Hotel where the conference is being held,
Ardesia is a lovely wine bar offering many interesting selections by
the glass. For those of your who don't like wine, draft and bottled
beer are also served. The kitchen puts out a number of tasty items,
We hope to see many of you there!
The New York Times reports here that a new settlement agreement has been reached that would compensate about 10,000 ground zero rescue and cleanup workers. This new settlement follows an earlier settlement agreement that was rejected as inadequate by United States District Judge Alvin Hellerstein. The new settlement agreement reflects reduced attorney fees (25%, down from 33.33% in the earlier agreement), providing an additional $50 million for the plaintiffs. The new settlement agreement was well received by Judge Hellerstein, but must still be approved by plaintiffs.
Prof. Nancy Moore (Boston University) has posted on SSRN her essay, The Absence of Legal Ethics in the ALI's Principles of Aggregate Litigation: A Missed Opportunity - And More, 79 George Washington L. Rev. (forthcoming 2010). Here's the abstract:
There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the author has opposed elsewhere), but rather to examine other parts of the Principles and to comment on the implications of the dearth of any meaningful discussion of ethics rules that apply to lawyers involved in various types of aggregate litigation, including class actions and non-class aggregations. One implication is that the ALI has missed an opportunity both to remind lawyers of their ethical obligations in these types of proceedings and to propose solutions to some of the ethical issues that courts have yet to resolve. There may, however, be an even greater significance to the absence of any significant discussion of legal ethics. In the class action context, for example, the Principles appear to have inadvertently taken an unexplained position on the controversial question of client identification for class counsel. More important, the use of the unfortunate term “structural conflict of interest” may seriously undermine the attempt to clarify judicial determinations of the adequacy of legal representation. With respect to non-class aggregations, the author argues that the Principles’ failure to address ethics rules governing communication and conflicts of interest (i.e., outside the context of aggregate settlements) makes it likely that mass tort lawyers will continue to treat their clients as if they were absent members of a class, but without the protections afforded a class.
Wednesday, June 9, 2010
This week the U.S. Senate has been holding hearings to consider legislation that would lift or alter the liability cap for oil spills. Under the 1990 Oil Pollution Act (33 U.S.C. s. 2704), BP's liability is limited to $75 million in economic damages. Various proposals have suggested raising the cap to $10 billion or eliminating it completely.
Representatives of the oil industry are lobbying against the change, arguing that that any change to the law would expose the federal government to breach of contract liability with the oil industry.
Central States Law Schools Association 2010 Conference Call for Papers & Mentorship Program Announcement
The following is the call for papers and announcement of a mentorship program for junior scholars:
The Central States Law Schools Association 2010 conference will be held September 24 and 25, 2010, in Grand Forks, North Dakota, hosted by the University of North Dakota School of Law. We invite law faculty to submit proposals to present papers or works in progress.
Although CSLSA is a regional association, faculty from other law schools also have participated in the annual conference from as far away as Boston, Florida and Oregon. We encourage faculty from across the country to attend.
The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.
For those who are interested, we plan to continue the mentorship program started two years ago, pairing interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. If you would like to participate in the mentorship program as either a mentor or mentee, please contact Vice President Jelani Jefferson Exum at email@example.com.
In keeping with tradition, CSLSA is able to pay for one night’s lodging and meals for presenters from member schools. There is no registration fee for participants from member schools. Additional information regarding registration will be forthcoming in future announcements. Schools interested in joining CSLSA should contact the Association's Treasurer, Carolyn Dessin at .
If you have any other questions about this conference, please contact any of our officers:
President, Gregory Gordon, University of North Dakota School of Law, firstname.lastname@example.org
Vice President, Jelani Jefferson Exum, University of Kansas School of Law, email@example.com
Secretary, Wes Oliver, Widener University School of Law, firstname.lastname@example.org
Treasurer, Carolyn Dessin, University of Akron School of Law,
To allow scheduling of the conference, please send abstract or précis of no more than 500 words to Secretary Wes Oliver at email@example.com by August 31, 2010; earlier statements of interest would be helpful. Every effort will be made to accommodate all interested participants.
[H/T: Cindy Galway Buys]
Tuesday, June 8, 2010
With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Robert G. Bone, Plausibility pleading revisited and revised: a comment on Ashcroft v. Iqbal, 85 Notre Dame L. Rev. 849 (2010)
Patrick J. Borchers, Punitive damages, forum shopping and the conflict of laws, 70 La. L. Rev. 529 (2010)
John C. Coffee, Jr., Litigating governance: taking accountability seriously, 110 Colum. L. Rev. 288 (2010)
Frank B. Cross, James F. Spriggs II, Timothy R. Johnson, Paul J. Wahlbeck, Citations in the U.S. Supreme Court: an empirical study of their use and significance, 2010 U. Ill. L. Rev. 489
David Crump, The case for restricting diversity jurisdiction: the undeveloped arguments, from the race to the bottom to the substitution effect, 62 Me. L. Rev. 1 (2010)
Jonathan Remy Nash, Null preemption, 85 Notre Dame L. Rev. 1015 (2010)
Timothy J. Storm, The standard of review does matter: evidence of judicial self-restraint in the Illinois Appellate Court, 34 S. Ill. U. L.J. 73 (2009)
Monday, June 7, 2010
"Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading 'relates back' to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations. Where an amended pleading changes a party or a party’s name, the Rule requires, among other things, that 'the party to be brought in by amendment . . . knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.' Rule 15(c)(1)(C). . . . We hold that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge or its timeliness in seeking to amend the pleading."
Justice Scalia writes a one paragraph concurrence to disclaim the Court's "reliance on the Notes of the Advisory Committee as establishing the meaning of Federal Rule of Civil Procedure 15(c)(1)(C)." He continues:
"The Advisory Committee’s insights into the proper interpretation of a Rule’s text are useful to the same extent as any scholarly commentary. But the Committee’s intentions have no effect on the Rule’s meaning. Even assuming that we and the Congress that allowed the Rule to take effect read and agreed with those intentions, it is the text of the Rule that controls."