July 1, 2010
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:
Jonathan Berman, You may know the law but I own the judge: why Congress can and should get involved in state judicial election reform, 34 J. Legal Prof. 145 (2009)
Lucien J. Dhooge, Aguinda v. ChevronTexaco: discretionary grounds for the non-recognition of foreign judgments for environmental injury in the United States, 28 Va. Envtl. L.J. 241 (2010)
Rosalind Dixon, Female justices, feminism, and the politics of judicial appointment: a re-examination, 21 Yale J.L. & Feminism 297 (2010)
Rochelle Cooper Dreyfuss, What the Federal Circuit can learn from the Supreme Court -- and vice versa, 59 Am. U. L. Rev. 787 (2010)
Theodore Eisenberg, The need for a national civil justice survey of incidence and claiming behavior, 37 Fordham Urb. L.J. 17 (2010)
Theodore Eisenberg & Geoffrey P. Miller, Attorney fees and expenses in class action settlements: 1993-2008, 7 J. Empirical Legal Stud. 248 (2010)
Heather Elliott, Jurisdictional resequencing and restraint, 43 New Eng. L. Rev. 725 (2009)
Thomas P. Gressette, Jr., The heightened pleading standard of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal: a new phase in American legal history begins, 58 Drake L. Rev. 401 (2010)
Fiona de Londras & Suzanne Kingston, Rights, security and conflicting international obligations: exploring inter-jurisdictional judicial dialogues in Europe, 58 Am. J. Comp. L. 359 (2010)
Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179 (2010)
Elizabeth R. Sheyn, The (un)constitutionality of section 632 of the Edge Act: an analysis under Article III and theories of protective jurisdiction, 41 Loy. U. Chi. L.J. 587 (2010)
Symeon C. Symeonides, Choice of law in the American courts in 2009: twenty-third annual survey, 58 Am. J. Comp. L. 227 (2010)
Russell R. Wheeler, Practical impediments to structural reform and the promise of third branch analytic methods: a reply to Professors Baum and Legomsky, 59 Duke L.J. 1847 (2010)
Symposium: State Judicial Independence--A National Concern. Keynote address by Justice Sandra Day O'Connor; panel participation by David Skover and Ronald Collins, moderators and Bert Brandenburg, Andrew Siegel, Richard Hasen, Kathleen Sullivan, Chief Justice Shirley Abrahamson, Justice Hans Linde (ret.), Jamie Pedersen, Hon. David Schuman and Charles Wiggins, panelists; articles by William R. Andersen, Bert Brandenburg, Chief Justice Wallace Jefferson, Kenneth L. Karst and Justice Hans A. Linde (ret.), 33 Seattle U. L. Rev. 559-687 (2010)
Bernadette Mary Donovan, Note, Deference in a digital age: the video record and appellate review, 96 Va. L. Rev. 643 (2010)
Jason Schwalm, Student article, The eye of the beholder: a defendant-reliant approach to valuing injunctive relief for the purposes of the amount in controversy requirement, 36 Ohio N.U. L. Rev. 171 (2010)
Nerve Center Test Gets First Post-SCOTUS Application
The Legal Intelligencer reports on a recent ruling that GlaxoSmithKline is a citizen of Pennsylvania (where it has its corporate headquarters), preventing removal of a products liability case to federal court. This marks a change from the pre-Hertz decisions where courts in circuits that did not apply the nerve center test would hold that such companies are citizens of a state in which most major manufacturing takes place.
June 29, 2010
SCOTUS cert. grant in Henderson v. Shinseki: Once more into the jurisdictional-vs.-nonjurisdictional breach
The Supreme Court has been struggling in recent years to distinguish "jurisdictional" requirements from "nonjurisdictional" ones, in a line of cases that includes Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), Bowles v. Russell, 551 U.S. 205 (2007), John R. Sand & Gravel Co. v. United States, 552 U. S. 130 (2008), and Reed Elsevier v. Muchnick, 130 S. Ct. 1237 (2010). As covered here, the topic came up again in last week’s decision in Morrison v. Australia National Bank. The Court looks to tackle the issue once more in a case for which it granted certiorari yesterday: Henderson v. Shinseki (No. 09-1036). The question presented is:
Section 7266(a) of Title 38, U.S.C., establishes a 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran's claim for disability benefits. Before the decision below, the Federal Circuit in two en banc decisions held that Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling under this Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). In the divided en banc decision below, however, the Federal Circuit held that this Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), superseded Irwin and rendered Section 7266(a) jurisdictional and not subject to equitable tolling.
The question presented is whether the time limit in Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine.
The lower court decision is at 589 F.3d 1201, and the Supreme Court docket is here.
June 28, 2010
Dodson on Justice Souter and the Civil Rules
Prof. Scott Dodson (William & Mary) has published Justice Souter and the Civil Rules in the Washington University Law Review Commentaries. From the text:
Justice Souter appears to have shied away from writing opinions that addressed the civil rules for most of his tenure on the Court. The first opinion he wrote—either for the Court or for himself—that directly addressed a federal civil rule was Ortiz v. Fibreboard Corp., issued almost a decade after he joined the Court. Over the next eight years, he authored only one other opinion on the civil rules, dissenting in Mayle v. Felix. After mid-2007, however, Justice Souter showed considerably more willingness to write on the civil rules. In the span of a little over two years, he authored the blockbuster pleadings case, Bell Atlantic Corp. v. Twombly; a passionate dissent in Bowles v. Russell; and a dissent in Twombly’s equally important progeny, Ashcroft v. Iqbal.
A survey of these five opinions by Justice Souter reveals that he is not uniformly historicist, textualist, formalist, instrumentalist, pragmaticist, or minimalist when it comes to the civil rules. It does, however, manifest a commitment to construing the civil rules in a way that would treat litigants fairly in court.