Friday, June 18, 2010
Howard Bashman at How Appealing reports on this week’s Third Circuit decision in Ehrheart v. Verizon Wireless. In a 2-1 decision, the court held that the class settlement agreement was enforceable notwithstanding the passage of a federal statute that retroactively eliminated the plaintiffs’ claims. As the majority explained:
“The parties do not dispute on appeal (nor did they before the District Court) that the Clarification Act eliminated the Appellants’ cause of action or that the Act retroactively encompasses the Appellants’ claims. The question on appeal, therefore, is not whether the Clarification Act, enacted earlier, would have eliminated Appellants’ underlying claims, but rather whether the Act moots the settlement agreement the parties executed while that legislation was pending in Congress. We conclude that it does not.”
Thursday, June 17, 2010
Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.
The abstract states:
Readers may be interested in some of the contributions to the recently published special issue of the University of Toronto Law Journal, which includes:
David Dyzenhaus, Adam Tomkins
The Role Of The Courts In The Political Constitution
Judicial Restraint In The Pursuit Of Justice
Deference, Defiance, And Doctrine: Defining The Limits Of Judicial Review
The Very Idea of a Judge
Judicial Review at The Margins: Law, Power, and Prerogative
Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law
Structural Judicial Review and the Objection From Democracy
Abstracts and links available at Concurring Opinions.
Wednesday, June 16, 2010
Professors Charles D. Kelso (University of the Pacific McGeorge School of Law) and R. Randall Kelso (South Texas College of Law) have posted "Judicial Decision-Making and Judicial Review: The State of the Debate, Circa 2009" on SSRN. It will be published in the West Virginia Law Review.
The abstract states:
Tuesday, June 15, 2010
The article documents the difficulties that private parties and various levels of government authorities have faced in coordinating control and cleanup efforts. From the article:
Closer to shore, the efforts to keep the oil away from land have not fared much better, despite a response effort involving thousands of boats, tens of thousands of workers and millions of feet of containment boom.
From the beginning, the effort has been bedeviled by a lack of preparation, organization, urgency and clear lines of authority among federal, state and local officials, as well as BP. As a result, officials and experts say, the damage to the coastline and wildlife has been worse than it might have been if the response had been faster and orchestrated more effectively.
“The present system is not working,” Senator Bill Nelson of Florida said Thursday at a hearing in Washington devoted to assessing the spill and the response. Oil had just entered Florida waters, Senator Nelson said, adding that no one was notified at either the state or local level, a failure of communication that echoed Mr. Bonano’s story and countless others along the Gulf Coast.
“The information is not flowing,” Senator Nelson said. “The decisions are not timely. The resources are not produced. And as a result, you have a big mess, with no command and control.” (emphasis added)
This should not be news. Similar complaints were leveled in the aftermath of Hurricane Katrina. Erin Ryan (William & Mary) gives a thorough outline of these problems and various responses in her article Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 518-36 (2007).
Are these problems of cooperative/shared/interactive federalism intractable? Or can we learn and improve from the Katrina and BP experiences before the next disaster, particularly before incidences that might have a lower profile but cause equal devastation to local residents and paralysis among state, local, and federal officials.
With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Daniel A. Farber, Justice Stevens, habeas jurisdiction, and the war on terror, 43 UC Davis L. Rev. 945 (2010)
Daniel E. Ho & student Erica L. Ross, Did liberal justices invent the standing doctrine? An empirical study of the evolution of standing, 1921-2006, 62 Stan. L. Rev. 591 (2010)
Frank J. Mastro, Preemption is not dead: the continued vitality of preemption under the Federal Railroad Safety Act following the 2007 amendment to 49 U.S.C. Section 20106, 37 Transp. L.J. 1 (2010)
Alexander A. Reinert, Measuring the success of Bivens litigation and its consequences for the individual liability model, 62 Stan. L. Rev. 809 (2010)
Muhammad Umair Khan, Note, Tortured pleadings: the historical development and recent fall of the liberal pleadings standard, 3 Alb. Gov't L. Rev. 460 (2010)
Rakesh N. Kilaru, Comment, The new Rule 12(b)(6): Twombly, Iqbal, and the paradox of pleading, 62 Stan. L. Rev. 905 (2010)
Monday, June 14, 2010
Astrue v. Ratliff, No. 08-1322. An attorneys' fee award under the Equal Access to Justice Act, 28 U.S.C. §2412(d), is payable to the prevailing litigant rather than the litigant's attorney. Therefore, a fee award under the act may be used to offset the prevailing litigant's pre-existing debt to the federal government.
Holland v. Florida, No. 09-5327. The one-year limitations period for filing a petition for federal habeas corpus relief, set forth in 28 U.S.C. §2244(d), is subject to equitable tolling; a per se rule that would deny equitable tolling even when a petition was filed late due to the gross negligence of the petitioner's attorney is rejected.
Additional coverage is available at SCOTUSblog.