June 18, 2010
Decision of Interest on Class Action Settlements
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.”
June 17, 2010
Jayasurya on Judicial Accountability and Transparency in India
Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.
The abstract states:
University of Toronto Law Journal: Special Issue on Judicial Review
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.
June 16, 2010
Kelso & Kelso on Judicial Decision-Making and Judicial Review
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:
June 15, 2010
Call for Papers: AALS Section on Remedies
Call for Papers
AALS Section on Remedies
Rebirth of the Irreparable Injury Rule?
2011 AALS Annual Meeting
San Francisco, California
Saturday January 8, 2010
The AALS Section on Remedies will hold a program entitled “Rebirth of the Irreparable Injury Rule” during the AALS 2011 Annual Meeting in San Francisco, California. The section seeks 2-3 presenters for this program.
January 2011 will mark the 20th anniversary of the publication of Doug Laycock’s landmark book, The Death of the Irreparable Injury Rule. In the book, Professor Laycock endeavored to demonstrate that courts had eroded the rigid requirement that a plaintiff demonstrate irreparable injury as a prerequisite to obtaining injunctive relief. Professor Laycock argued forcefully for a new functional balancing approach to remedial choices. Recently, the Supreme Court has expressed a renewed interest in what the Court has termed “traditional” equitable principles in cases such as EBay v. MercExchange, LLC, Winter v. NRDC and Nken v. Holder. Indeed, this term the Supreme Court has returned again to the question of what constitutes irreparable harm in cases involving violations of statutory rights in Monsanto v. Geerston Farms. This program will explore whether Professor Laycock’s work successfully dismantled the irreparable injury rule or whether these recent Supreme Court opinions and their lower court progeny have breathed new life into the old doctrine. The program will also explore what insights Professor Laycock’s work might hold for lower courts and commentators grappling with the limits of these Supreme Court opinions. The program hopes to spark a broader conversation about the role of equity in a merged system.
The Section invites all interested faculty members of AALS member and fee-paid law schools to submit papers dealing with any aspect of the foregoing topic. A review committee consisting of members of the Executive Committee of the Section on Remedies will review submissions and select papers for inclusion in the program. Papers will be selected on the basis of their quality, originality, and their engagement with the program theme.
If you are interested in presenting a paper, please submit an abstract of not more than 500 words by August 23, 2010. In addition to an abstract, you may also submit a complete draft of your paper. Please email your submission to email@example.com. Please also include the phrase “Remedies Call for Papers” in the subject line of your email. Authors of selected papers will be notified by October 1, 2010.
Per AALS Guidelines, papers that have already been accepted for publication are eligible for consideration, provided that they have not been published by the time of the annual meeting. Papers posted on SSRN or similar pre-publication resources before the annual meeting are eligible. Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Please direct questions and requests for additional information to:
Professor Rachel M. Janutis
Chair, AALS Section on Remedies
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
Gulf Spill: "Un"cooperative Federalism?Today's New York Times features the story Efforts to Repel Gulf Oil Spill Described as Chaotic.
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.
Hot Off The Presses: Recent Articles of Interest
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)
June 14, 2010
SCOTUS: Two Decisions of InterestToday, the Supreme Court issued two opinions in cases that might be of interest to civil procedure and federal courts professors:
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.
Bone on Procedure, Participation, and Rights
Professor Robert G. Bone (University of Texas School of Law) has posted "Procedure, Participation, Rights" on SSRN. It will be published in the Boston University Law Review.
The abstract states: