Friday, 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 18, 2010 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, 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:

Indian polity is under severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded. They turn to the judiciary as the last bastion of hope. But of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the judiciary. The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary. If the Preamble to our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one thing that even a layman will note is that among the various goals that the Constitution-makers intended to secure for the citizens, “JUSTICE- Social, Economic & Political” has been mentioned before the rest.” 

Judge Jerome frank wrote, “In a democracy, it can never be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions….The best way to bring about those eliminations of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.” Judicial independence ensures that powerful people must conform to law. Need of judicial independence is not for the judges, but for the people. Judges have important social role in the preservation of the liberty. However, independence of judiciary is not absolute it should not be construed in the manner to confer immunity from the demands of justice for misdeeds or to protect a judge from investigation and censure for a valid charge. Independence emphasizes institutional autonomy, not any claims to similar autonomy by actors within the institutional structure. Nevertheless the advocates of independence observe the judges should not be held accountable for following the rule of law. This canvasses a picture of conflict between judicial independence and judicial accountability but they are inseparable and not inconsistent with each other in fact, they nourish each other. 

India is said to have the most powerful and independent judiciary in the world. Unlike many countries with Federal Constitution, India has a single integrated, hierarchical judicial system, and it owes its origin to the British India. What we seek to do in this project is to focus on the question-“What is the need for judicial accountability and transparency?” analyzing it in the light of various factors and recent instances.


June 17, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (1)

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:

Editors’ Note
David Dyzenhaus, Adam Tomkins

The Role Of The Courts In The Political Constitution
Adam Tomkins

Judicial Restraint In The Pursuit Of Justice
Aileen Kavanagh

Deference, Defiance, And Doctrine: Defining The Limits Of Judicial Review
T.R.S. Allan

The Very Idea of a Judge
David Dyzenhaus

Judicial Review at The Margins: Law, Power, and Prerogative
Thomas Poole

Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law
Adrienne Stone

Structural Judicial Review and the Objection From Democracy
Jeffrey Goldsworthy

Abstracts and links available at Concurring Opinions.


June 17, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Wednesday, 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:

In this article, we consider each of these five recent statements on the topic of judicial decisionmaking, placing the books into a broader context of theories on judicial review. As noted in this review, there are four basic styles of judicial decisionmaking: formalism (where literal text is given great weight), Holmesian (often characterized by deference to government action and concern for underlying purposes of the law), natural law (emphasis on judicial precedent and general principles underlying the law); and instrumentalism (great attention paid to alternative social policy consequences of a decision). With regard to constitutional interpretation, formalist judges focus on sources of meaning existing at the time of ratification – text, context, and history – with particular focus on literal text. This leads to a static, or fixed, view of the Constitution based on the textual meaning at the time of ratification. Holmesian judges add to these sources a judicial deference to legislative, executive, and, to some extent, social practice under the Constitution. Natural law judges add to these sources great respect for precedent and reasoned elaboration of the law. Instrumentalist judges add a focus on prudential principles. For conservative instrumentalists, this typically involves greater weight paid to prudential principles of judicial restraint; for liberal instrumentalists, this typically involves greater weight paid to principles of justice or social policy embedded in the law. 

Comparing the five books discussed in this article, it is clear that descriptions and evaluations of what happens in judicial decisionmaking are influenced by the observer’s perspective on what style of deciding is preferred. Placed in this perspective, each of these five books makes a good contribution to legal scholarship, once the predisposition of the author is understood: Judge Posner (conservative instrumentalist); Justice Scalia (formalist); Professor Quirk (Holmesian); Professor Farber (natural law, with a hint of liberal instrumentalism), and Professor Purcell (liberal instrumentalist).


June 16, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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

8:30-10:15 am



Continue reading

June 15, 2010 in Conferences/Symposia | Permalink | Comments (0)

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.


June 15, 2010 in Current Affairs, Mass Torts | Permalink | Comments (0)

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 15, 2010 in Recent Scholarship | Permalink | Comments (0)

Monday, June 14, 2010

SCOTUS: Two Decisions of Interest

Today, 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.


June 14, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

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:

This essay is a contribution to a symposium on Professor Ronald Dworkin’s forthcoming book, JUSTICE FOR HEDGEHOGS. The essay asks whether procedural rights make sense in American civil litigation, where “right” is understood in the Dworkinian sense of limiting, resisting, or trumping arguments based on furthering a collective social goal or improving aggregate welfare. Professor Dworkin addressed this question in a wonderfully rich and provocative essay published in the early 1980s, entitled “Principle, Policy, Procedure.” I take a critical look at Professor Dworkin’s argument and use the opportunity to explain why it so difficult to articulate a coherent theory of procedural rights. In particular, Part I of my essay argues that the best interpretation of American civil adjudication is likely to recognize procedural rights with a curious property: the right must be defined at its core in a way that somehow yields to arguments of high social cost at the same time as resisting those arguments in the way a right is supposed to do. Part II describes Professor Dworkin’s theory, explains how it meets the definitional challenge, and criticizes its main elements. Part III examines two competing theories of procedural rights and explains why they too are problematic. The essay concludes by calling for more work on the nature of procedural rights in civil litigation. There is much at stake. If there is no coherent account of procedural rights, then radical reforms justified on utilitarian grounds should receive much more favorable attention than they have to date.


June 14, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)