Saturday, August 14, 2010
Friday, August 13, 2010
Last month we covered the hearing before the U.S. Judicial Panel on Multidistrict Litigation (JPML) on the BP Oil Spill litigation (In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179). This week the JPML ordered, pursuant to 28 U.S.C. § 1407, that actions relating to the BP Oil Spill be transferred to the U.S. District Court for the Eastern District of Louisiana and assigned to Judge Carl J. Barbier for consolidated pretrial proceedings.
From the panel’s opinion:
The actions before the Panel indisputably share factual issues concerning the cause (or causes) of the Deepwater Horizon explosion/fire and the role, if any, that each defendant played in it. Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund. In all these respects, centralization will serve the convenience of the parties and witnesses and promote the more just and efficient conduct of these cases, taken as a whole.
. . .
The parties have advanced sound reasons for a large number of possible transferee districts and judges. Upon careful consideration, however, we have settled upon the Eastern District of Louisiana as the most appropriate district for this litigation. Without discounting the spill’s effects on other states, if there is a geographic and psychological “center of gravity” in this docket, then the Eastern District of Louisiana is closest to it. Considering all of the applicable factors, we have asked Judge Carl J. Barbier to serve as transferee judge. He has had a distinguished career as an attorney and now as a jurist. Moreover, during his twelve years on the bench, Judge Barbier has gained considerable MDL experience, and has been already actively managing dozens of cases in this docket. We have every confidence that he is well prepared to handle a litigation of this magnitude.
The order includes “the relatively few personal injury/wrongful death actions” as well as the “putative class actions seeking recovery for property damage and other economic losses.”
Thursday, August 12, 2010
The Akron Law Review is seeking articles for its upcoming symposium issue tentatively titled "Erie Under Advisement: The Doctrine After Shady Grove." The Review "seeks articles that discuss Shady Grove, the future implications of Shady Grove, and the Court's treatment of the substantive rights prohibition of the Rules Enabling Act. More broadly, the symposium also aims to collect articles about other aspects of the future of the Erie doctrine."
According to the call for articles, the Review "will review articles on a rolling basis until October 15, 2010."
Please submit articles to Symposium Editor John Thuermer at firstname.lastname@example.org. Questions may be asked by contacting the Editor-in-Chief, Morena Carter (email@example.com or 216-513-8961) or the Law Review's faculty advisor, Professor Bernadette Bollas Genetin (firstname.lastname@example.org or 330-705-5770).
Wednesday, August 11, 2010
Professors Herbert M. Kritzer (University of Minnesota Law School) and Robert E. Drechsel (University of Wisconsin, Madison, School of Journalism & Mass Communication) have posted "A Portrait of Local News Reporting of Civil Litigation" on SSRN.
The abstract states:
Tuesday, August 10, 2010
The National Law Journal reports that William Lerach, who pleaded guilty to crimes involving kickback payments to class action plaintiffs, asked a federal judge to complete part of his community service by teaching a law course at UC Irvine.
The course would be called "Regulating Free Market Capitalism -- Are We Failing?" U.S. District Judge Walter was not convinced that Lerach would make an effective teacher, claiming that "the only message he could offer students was this: 'Don't get caught.'"
Monday, August 9, 2010
Louis Michael Seidman (Georgetown University Law Center) has posted Acontextual Judicial Review to SSRN.
Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that it is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political context.
Part I of this article lays out the groundwork for my discussion by separating out several questions that are too often conflated. It addresses the distinction between arguments for constitutionalism and for judicial review, between arguments for judicial review grounded in political and substantive justice, and among arguments for different types of judicial review. The Part concludes that the embrace of constitutionalism, the choice between substantive or political justice, and the choice among different types of judicial review all depend upon context.
Given the conclusions in Part I, the argument in Part II will come as no surprise. The wisdom of providing for judicial review turns on the type of judicial review we are talking about and on the relationship between judicial power on the one hand and constitutionalism, political, and substantive justice on the other. All of these factors are different in different times and places. It follows that judicial power to invalidate statutes and executive actions is a contingent good.
A brief coda discusses the implications of this argument for the discipline of comparative constitutional law.
Professors Andrew Dahdal (Macquarie University, Macquarie Law School) and Peter S. Gillies (Macquarie University, Macquarie Law School) have posted "Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration" on SSRN. It will be published in the Journal of Maritime Law and Commerce.
The abstract states:
Readers may be interested in these recent posts on PrawfsBlawg about teaching civil procedure:
Things You Oughta Know if You Teach Civil Procedure, by Scott Dodson (William & Mary)
More things to know if you teach civ pro, by Howard Wasserman (Florida International)