Saturday, January 30, 2010
Friday, January 29, 2010
With hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Brian T. Fitzpatrick, The End of Objector Blackmail? 62 Vand. L. Rev. 1623 (2009)
Jonathan Lahn, The Demise of the Law-finding Jury in America and the Birth of American Legal Science: History and its Challenge for Contemporary Society, 57 Clev. St. L. Rev. 553 (2009)
Chad M. Oldfather and student Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009)
Michael S. Pardo, Second-order Proof Rules, 61 Fla. L. Rev. 1083 (2009)
Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95 (2010)
Richard L. Steagall, The Recent Explosion in Summary Judgments Entered by the Federal Courts has Eliminated the Jury from the Judicial Power, 33 S. Ill. U. L.J. 469 (2009)
Robert L. Ashe, III, Austin M. Hall and Avery S. Jackson, Note, Getting Personal with our Neighbors--A Survey of Southern States' Exercise of General Jurisdiction and a Proposal for Extending Georgia's Long-arm Statute, 25 Ga. St. U. L. Rev. 1177 (2009)
Jordan Bailey, Comment, Giving State Courts the Ol' Slip: Should a Defendant be Allowed to Remove an Otherwise Irremovable Case to Federal Court Solely Because Removal Was Made Before any Defendant Is Served? 42 Tex. Tech. L. Rev. 181 (2009)
Heather Bromfield, Comment, The Denial of Relief: The Enforcement of Class Action Waivers in Arbitration Agreements, 43 UC Davis L. Rev. 315 (2009)
Ryan T. Holt, Note, A Uniform System for the Enforceability of Forum Selection Clauses in Federal Courts, 62 Vand. L. Rev. 1913 (2009).
Arthur Oder, Note, What's Fair is Fair? A Comparative Look at Judicial Discretion in Fairness Review of Holocaust Era Class Action Settlement in the United States and Canada, 17 Cardozo J. Int'l & Comp. L. 545 (2009).
Thursday, January 28, 2010
At issue is whether some of the factual findings of a 2006 state court verdict in favor of a plaintiff can be applied to around 4000 cases pending in federal court. The Fulton County Daily Report provides a good account of the issues and the oral argument, including the arguments of attorney and law professor Samuel Issacharoff.
Elizabeth R. Sheyn has posted "A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe" on SSRN. The article is forthcoming in the Vanderbilt Journal of Transnational Law.
Wednesday, January 27, 2010
NYU School of Law will host a conference on "The Roberts Court: A View from the Supreme Court Bar and the Academy." The program is sponsored by the Dwight D. Opperman Institute of Judicial Administration, and will be on Friday, February 19, 2010 from 10:00 a.m. until noon. For more information, including a list of participants and registration information (registration is free), click here.
Tuesday, January 26, 2010
The Florida Coastal School of Law is seeking applicants for permanent, full-time faculty positions. They have a particular need for those interested in teaching Civil Procedure (as well as Estates & Trusts and Environmental Law). Anyone interested in being considered should forward a cover letter, resume, and list of references to the Chair of the Faculty Appointments Committee, Professor Cynthia Irvin, at firstname.lastname@example.org.
(Hat Tip: Brad Shannon)
Monday, January 25, 2010
Richard E. Levy (University of Kansas - School of Law) and Robert L. Glicksman (George Washington University - Law School) have posted Access to Courts and Preemption of State Remedies in Collective Action Perspective to SSRN.
This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by “downstream” states, or solve a not-in-my-backyard problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever. In doing so we pay particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. We conclude by analyzing how the Supreme Court’s 2009 holding in Wyeth v. Levine that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis.
I've been guest-blogging over at Concurring Opinions, and I have a few posts discussing how courts ought to make sense of federal pleading standards after Ashcroft v. Iqbal, what lower courts are actually doing, and the bills now pending in Congress to legislatively override Iqbal. Here are the links to Part 1, Part 2, and Part 3.
These posts summarize and build on some of the arguments in my article, The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), the latest draft of which is up on SSRN. Here's the abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbalwith pre-Twombly authority.
A careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbaldid not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood 50-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbalis neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.