January 23, 2010
NYT: "Lawyers Use Humor to Plead Case"
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)
Parau on Judicial Independence in Post-Communist Eastern Europe
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.
January 22, 2010
Recent Articles on Twombly/Iqbal
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)
January 21, 2010
Gender theory and bellwether trials
SCOTUS on Intervention: South Carolina v. North Carolina
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."
Ford on Peremptory Challenges
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.
January 20, 2010
Garoupa & Ginsburg on Reputation and the Judiciary
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.
Symposium announcement: Law and the Morality of Punishing Collective Entities
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.
January 19, 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:
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)
January 18, 2010
Ahdieh on Paulsen on International Law in U.S. Courts
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.
Scholarship round-up: comparative law and judging
Three articles recently posted to SSRN address issues of judging in a comparative or non-U.S. context.
Abstracts after the jump.
This chapter explores the experience of China’s East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China’s own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and because many of them developed their judicial systems during periods of authoritarian governance. Finally, the East Asian cases, like contemporary China, seem to challenge the conventional wisdom that a powerful legal system is necessary for sustained economic development. My argument is that these cases provide nuanced lessons for the Chinese case about the definition of and conditions for judicial independence.
Rosalind Dixon (University of Chicago Law School) Female Justices, Feminism and the Politics of Judicial Appointment: A Re-examination
In recent years, feminists in the United States have consistently advocated for the appointment of more female justices to the Supreme Court. Given the records of Justices O’Connor and Ginsburg on the Court and broader empirical findings below the Supreme Court level showing a relationship between a judge’s gender and her voting behavior, feminists have argued that, from a feminist perspective, the appointment of new female justices to the Court is likely to offer significant substantive, as well as symbolic, benefits. This Article challenges such feminist orthodoxy by showing that it is based on a mistaken view of existing empirical data on judicial behavior and its likely future predictive value. The article shows how, from both a quantitative and qualitative perspective, the current literature on judicial behavior in fact reveals little if any meaningful connection between a judge’s gender and her pro-feminist views, in a jurisprudential sense. By drawing on comparative experience in Canada, which between 2005 and 2008 had a female majority on its Supreme Court, the Article also shows how any female-feminist connection previously evident in the United States, particularly at a Supreme Court level, is unlikely to endure in the future, given changes in the kind and degree of discrimination experienced by female justices prior to appointment. Consequently, the Article also calls for a change in strategy on the part of feminists to focus more directly on the demonstrated jurisprudential commitments, rather than on the gender, of future judicial nominees.
Neeraj Tiwari (Indian Law Institute, New Delhi), Appointment of Judges in Higher Judiciary: An Interpretational Riddle
This paper deals with the Constitutional framework for the appointment of judges in high court and the Supreme Court in India. The framework consists of a 'consultative' process between the Executive and the Judiciary. For the first four decades, after the framing of the Constitution, this practice was followed in a decent manner with only two or three exceptions. But after the Second Judges Case in 1993, the Supreme Court do away with the existing consultative process and evolved a new system for appointment of judges in the higher Judiciary, namely "Collegium". In this system a pannel of Chief Justice of India along with two seniormost Judges of the Supreme Court (in Third Judges Case this requirement was inhanced from two to four seniormost judges) recommends the appointment of a judge. But the recent episodes revealing the incompetency and irregularity of the collegium system. the Law Commission of India, in its 214th Report has also shown deep concern on the working of the collegium and recommended for reconsideration. This paper will take up all these issues in detail.
Dodson on New Pleadings & Discovery
Professor Scott Dodson (William & Mary School of Law) has posted "New Pleadings, New Discovery" on SSRN.