October 2, 2010
SEALS Call for Papers on American Civil Procedure in the 21st Century
Here is a call for papers for the 2011 Southeastern Association of Law Schools 2011 Annual Meeting, which will be held in Hilton Head, South Carolina between July 24 and July 30, 2011. The discussion group topic for this call to papers is "Evolution or Revolution? American Civil Procedure in the 21st Century."
The past decade has seen a number of significant changes in the American approach to litigation. Concerns with expense and fairness have lead to important new initiatives to contract federal jurisdiction, limit pleadings, control discovery, redefine the class action device, and promote the use of litigation alternatives. This Discussion Group will examine the important trends in Civil Procedure and their causes and discuss what actions should be taken to respond to them.
This Discussion Group has been organized by Professors Tom Metzloff of Duke and Mike Allen of Stetson. Current discussants include Professors Rich Freer of Emory, Howard Wasserman of FIU, Scott Dodson of William & Mary and Lonny Hoffman of Houston. We are seeking additional discussants for this group. Discussants will prepare a short paper to be exchanged before the conference. There is a possibility that the papers will be published in a law review.
Anyone interested in being considered for one of the remaining discussant slots should send a two-page description of the general nature of his or her topic/paper to Mike Allen at firstname.lastname@example.org by January 15, 2011. You will be notified about your acceptance as a discussant no later than February 15, 2011. You may direct any questions to either Mike Allen or Tom Metzloff.
September 30, 2010
9/11 Health Care Bill and the Responders' Lawsuit Settlement
On Wednesday, the House passed a $7.4 billion dollar bill to provide medical treatment for those suffering from respiratory difficulties in the aftermath of 9/11. Because the first responders will be a large beneficiary of this legislation, it is thought that this will speed the settlement in the 9/11 cases pending before Judge Hellerstein because the current version of the legislation does not require the workers to choose between public funds and the settlement. The National Law Journal has further analysis here.
September 29, 2010
Big Week at SCOTUS: Cert Grants of Interest
As covered earlier here, the Supreme Court is finally ending its long hiatus from the topic of personal jurisdiction by granting certiorari in Goodyear v. Brown (No. 10-76) and J. McIntyre Machinery v. Nicastro (09-1343). Several other cert. grants may also be of interest (links are to SCOTUSblog’s case files):
Astra USA, Inc. v. Santa Clara County (09-1273):
Whether, in the absence of a private right of action to enforce a statute, federal courts have the federal common law authority to confer a private right of action simply because the statutory requirement sought to be enforced is embodied in a contract.
Smith v. Bayer Corp. (09-1205):
(1) Whether, under the re-litigation exception of the Anti-Injunction Act, a district court can enjoin parties from seeking class certification in state court under state procedural rules when the district court had previously denied certification of a similar class under federal procedural rules but neither the parties sought to be estopped nor the issues to be presented in state court are identical as those presented to the district court.
(2) Whether a district court that previously denied class certification nonetheless has personal jurisdiction over the absent putative class members such that it may enjoin them from seeking class certification in state court.
Stern v. Marshall (No. 10-179):
(1) Whether the Ninth Circuit’s interpretation of 28 U.S.C. § 157(b)(2)(C) contravenes congressional intent;
(2) Whether Congress may authorize core jurisdiction over debtors’ compulsory counterclaims to proofs of claim;
(3) Whether the Ninth Circuit contravened Supreme Court precedent and created a circuit split by holding that Congress cannot constitutionally authorize non-Article III bankruptcy judges to enter final judgment on all compulsory counterclaims to proofs of claim.
September 28, 2010
SCOTUS Grants Cert in Personal Jurisdiction Cases
Great news for all of us who are smack in the middle of teaching personal jurisdiction: The Supreme Court has granted cert in the cases of Goodyear v. Brown and J. McIntyre Machinery Ltd. v. Nicastro. SCOTUSblog has further links to the grant and opinions below.
Goodyear Issue: Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.
McIntyre Machinery Issue: Does a "new reality" of "a contemporary international economy" permit a state to exercise, consistent with due process, personal jurisdiction over a foreign manufacturer under the stream of commerce theory solely because the manufacturer targets the U.S. market for the sale of its product and the product is purchased by a forum state consumer?
RJE (h/t Edward Hartnett)
Thomas on Iqbal, Twombly & Employment Discrimination
Prof. Suja Thomas (Illinois) has posted on SSRN her forthcoming essay, Oddball Iqbal and Twombly and Employment Discrimination, to be published in the University of Illinois Law Review. Here’s the abstract:
This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars including Professor Richard Epstein have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal like Twombly was also an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.
September 27, 2010
Langer on The Political Branches Regulating Role in Prosecuting International Crimes
Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.
The abstract states:
SCOTUS Stays $250M+ Class Action Judgment
On Friday, Justice Scalia (Circuit Justice for the Fifth Circuit) issued an order staying a quarter-of-a-billion-dollar judgment entered in Louisiana state court against several tobacco companies. The case is Philip Morris USA Inc. v. Scott (No. 10A273, docket available here), and the lower court opinion is at 36 So. 3d 1046. The defendants sought the stay to give them time to file a cert. petition, which will challenge the judgment on federal due process grounds. In granting the stay, Justice Scalia concludes: “I think it reasonably probable that four Justices will vote to grant certiorari, and significantly possible that the judgment below will be reversed.”
More from Scalia’s Opinion in Chambers:
Applicants complain of many violations of due process, including (among others) denial of the opportunity to cross-examine the named representatives of the class, factually unsupported estimations of the number of class members entitled to relief, and constant revision of the legal basis for the plaintiffs’ claim during the course of litigation. Even though the judgment that is the alleged consequence of these claimed errors is massive—more than $250 million—I would not be inclined to believe that this Court would grant certiorari to consider these fact-bound contentions that may have no effect on other cases.
But one asserted error in particular (and perhaps some of the others as well) implicates constitutional constraints on the allowable alteration of normal process in class actions. This is a fraud case, and in Louisiana the tort of fraud normally requires proof that the plaintiff detrimentally relied on the defendant’s misrepresentations. 949 So. 2d, at 1277. Accordingly, the Court of Appeal indicated that members of the plaintiff class who wish to seek individual damages, rather than just access to smoking cessation measures, would have to establish their own reliance on the alleged distortions. Ibid. But the Court of Appeal held that this element need not be proved insofar as the class seeks payment into a fund that will benefit individual plaintiffs, since the defendants are guilty of a “distort[ion of] the entire body of public knowledge” on which the “class as a whole” has relied. Id., at 1277–1278. Thus, the court eliminated any need for plaintiffs to prove, and denied any opportunity for applicants to contest, that any particular plaintiff who benefits from the judgment (much less all of them) believed applicants’ distortions and continued to smoke as a result.
Applicants allege that this violates their due-process right to “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted) (quoting American Surety Co. v. Baldwin, 287 U. S. 156, 168 (1932)). . . . The apparent consequence of the Court of Appeal’s holding is that individual plaintiffs who could not recover had they sued separately can recover only because their claims were aggregated with others’ through the procedural device of the class action.
The extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question. National concern over abuse of the class-action device induced Congress to permit removal of most major class actions to federal court, see 28 U. S. C. §1332(d), where they will be subject to the significant limitations of the Federal Rules. Federal removal jurisdiction has not been accorded, however, over many class actions in which more than two-thirds of the plaintiff class are citizens of the forum State. See §1332(d)(4). Because the class here was drawn to include only residents of Louisiana, this suit typifies the sort of major class action that often will not be removable, and in which the constraints of the Due Process Clause will be the only federal protection. There is no conflict between federal courts of appeals or between state supreme courts on the principal issue I have described; but the former seems impossible, since by definition only state class actions are at issue; and the latter seems implausible, unless one posits the unlikely case where the novel approach to class-action liability is a legislative rather than judicial creation, or the creation of a lower state court disapproved by the state supreme court on federal constitutional grounds. This constitutional issue ought not to be permanently beyond our review.
For additional coverage, see Lyle Denniston’s post on SCOTUSblog.