Saturday, January 23, 2010
No, this New York Times story is not about a new strategy for complying with federal pleading standards. It's about unconventional law firm ads, including the following (links to YouTube):
(Hat Tip: Roger Baron)
Christina E. Parau (University of Oxford Centre for Socio-Legal Studies) has posted "Beyond Judicial Independence? What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?" on SSRN.
Friday, January 22, 2010
Here are some recent articles on pleading standards under Ashcroft v. Iqbal and Bell Atlantic v. Twombly:
Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Florida L. Rev. 1 (2010)
Stephen Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. (forthcoming 2010)
Stephen Brown, Correlation Plausibility: A Framework for Moving to Fair Pleading in the Post-Twombly and Iqbal World (on SSRN)
Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 Nebraska L. Rev. 261 (2009)
Thursday, January 21, 2010
No doubt most of today's SCOTUS-related attention is on the 183-page decision in Citizens United v. FEC. But our readers may be even more interested in yesterday's decision in South Carolina v. North Carolina, which involves that favorite of proceduralists--intervention.
This case is an original action before the Supreme Court, and the issue was whether three nonstate entities (the Catawaba River Water Supply Project, Duke Energy, and the City of Charlotte) should be allowed to intervene. Answer: the first two may intervene; Charlotte may not. The Court was sharply divided, and it's one of the more unusual 5-4 splits you're likely to see. Alito wrote for the majority, joined by Stevens, Scalia, Kennedy, and Breyer. Roberts dissented (in part), joined by Thomas, Ginsburg and Sotomayor (they would have denied intervention to all three).
As footnote 8 of the Court's opinion indicates, Rule 24 does not formally govern original actions like this one--the Federal Rules of Civil Procedure are merely "to be taken as 'guides' to procedure in original actions."
Roger A. Ford (Covington & Burling) has posted "Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts" on SSRN. It will be published in the George Mason Law Review.
Wednesday, January 20, 2010
Professor Nuno Garoupa (University of Illinois College of Law) and Professor Tom Ginsburg (University of Chicago Law School) have posted "Reputation, Information and the Organization of the Judiciary" on SSRN. It will be published in the Journal of Comparative Law.
On February 5, 2010 from 9:00 A.M. - 4:15 P.M., Brooklyn Law School will host its David G. Trager Public Symposium. The topic this year is Sharing the Blame: The Law and Morality of Punishing Public Entities.
About the Program
Panelists include Miriam Baer, Jayne Barnard, Michael Cahill, Meir Dan-Cohen, James Fanto, John Hasnas, Peter Henning, Bertram Malle, Leonard Orland, Steven Sherman, Marion Smiley, Lawrence Solan, Hon. David G. Trager, and Tom Tyler.
Tuesday, January 19, 2010
With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Scott E. Atkinson, Alan C. Marco and John L. Turner, The Economics of a Centralized Judiciary: Uniformity, Forum Shopping, and the Federal Circuit, 52 J.L. & Econ. 411 (2009)
Lon A. Berk, Some Logical Limits of E-discovery, 12 SMU Sci. & Tech. L. Rev. 1 (2008)
Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447 (2009)
Daniel Ryan Koslosky, Toward an Interpretive Model of Judicial Independence: A Case Study of Eastern Europe, 31 U. Pa. J. Int'l L. 203 (2009)
Justin R. Long, Against Certification, 78 Geo. Wash. L. Rev. 114 (2009)
Craig M. Reiser, Comment, The Unconstitutional Application of Summary Judgment in Factually Intensive Inquiries, 12 U. Pa. J. Const. L. 195 (2009)
Alexis N. Simpson, Note, The Monster in the Closet: Declawing the Inequitable Conduct Beast in the Attorney-client Privilege Arena, 25 Ga. St. U. L. Rev. 735 (2009)
Monday, January 18, 2010
Now available on SSRN is a recent Yale Law Journal Online piece by Prof. Robert Ahdieh (Emory), The Fog of Certainty. Here's the abstract:
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.
These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war - with its attendant distortions and misperceptions - is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.
Three articles recently posted to SSRN address issues of judging in a comparative or non-U.S. context.
Abstracts after the jump.