Friday, September 10, 2010
Now available on SSRN are several contributions to the Penn State Law Review's symposium on Ashcroft v. Iqbal. They include:
Kit Kinports, Iqbal and Supervisory Immunity
Victor C. Romero, Interrogating Iqbal: Intent, Inertia, and (a Lack of) Imagination
Shoba Sivaprasad Wadhia, Business as Usual: Immigration and the National Security Exception
Nancy Welsh, I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution
Thursday, September 9, 2010
Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted):
[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.
To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.
But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.
Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”
(Hat Tip: Jonathan Hafetz)
Tuesday, September 7, 2010
Monday, September 6, 2010
Andrew S. Pollis (Case Western Reserve University School of Law has posted The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation to SSRN.
Multidistrict litigation, or “MDL,” is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, more than a third of all pending civil cases in federal court are part of an MDL proceeding, and the resulting efficiency is indisputable.
But the efficiency comes at great—and largely overlooked—cost. Because a single judge renders all the important legal decisions in each MDL with virtually no scrutiny from other trial judges, one instance of pretrial legal error can have immediate and sweeping impact on thousands of cases and on the evolution of the law. And, because most types of interlocutory appeals go forward only if the trial and appellate courts permit them, the right of appeal is not an adequate protection against pretrial error in the MDL context. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty.
It is time to restore the balance of judicial power. This article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should be potentially dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances, as in any expansion of appellate jurisdiction, would not come without costs. But the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend.