Saturday, February 13, 2010

Fix on Judicial Review and Agency Implementation

Professor Michael Fix (University of South Carolina) has posted "A Signaling Game of Judicial Review and Agency Implementation" on SSRN as part of the Working Paper Series.

The abstract states:

As the U.S. Supreme Court observed in Federal Maritime Commission v. South Carolina State Ports Authority, “[t]he founders . . . could not have anticipated the vast growth of the administrative state.” As this growth has occurred in both size and scope in the U.S and in countries around the world, agency action has begun to directly impact the lives of individual citizens in a myriad of ways. This begs the question, how can agency action be checked to ensure these institutions do not infringe upon individual rights? Existing models of court-agency interaction have analyzed one check on agencies – the mechanism of judicial review. Yet, these models ignore the iterative process of court-agency interaction by failing to account for what occurs after a court has ruled on the validity of an agency action. Of equal import is what occurs after a court has rendered its decision, as court decisions are generally not self-enforcing. Moreover, in the context of administrative law judicial rulings often must be implemented by the same agency whose initial action was at issue in the case. To bring additional leverage to bear on our understanding of court-agency interaction, I develop a simple signaling game to model the process of judicial review and agency implementation. To capture the second stage of the process, I draw from the literature on implementation of judicial decisions to model agency implementation of judicial decision and the decision of courts to ‘punish’ agencies that shirk faithful implementation of their rulings. Additionally, I use the signaling aspect of the game to formalize the idea that the importance of all cases – or their salience – is not given equal weight by the actors. From this model, I derive implications about the impact of the costs and salience, on the strategic choices of the actors. I then conduct a preliminary test of the models prediction using a sample of immigration cases in the U.S. Courts of Appeals.


February 13, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Upcoming Conference on Iqbal (Mar. 26)

As covered earlier here, the Penn State Law Review is sponsoring a symposium entitled: "Reflections on Iqbal: Discerning Its Rule, Grappling with Its Implications." It's on Friday, March 26, 2010 at Penn State's Carlisle campus (simulcast to the University Park campus). If you're interested in attending or participating, see the following announcement from Penn State Prof. Nancy Welsh:

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February 12, 2010 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

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:

Hannah L. Buxbaum, Personal Jurisdiction over Foreign Directors in Cross-border Securities Litigation, 35 J. Corp. L. 71 (2009)

Charles B. Campbell, No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico under the Hauge Service Convention, 19 Minn. J. Int'l L. 107 (2010)

Mary L. Clark, Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level? 114 Penn St. L. Rev. 49 (2009)

Theodore Eisenberg & Geoffrey P. Miller, Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source, 89 B.U. L. Rev. 1451 (2009)

Samuel Estreicher & Kristina Yost, Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment, 6 J. Empirical Legal Stud. 768 (2009)

Charles R. Flores, The Texas Supreme Court's Erroneous Doctrine of Implied Appellate Jurisdiction, 41 St. Mary's L.J. 1 (2009)

Steven G. Gey, The Procedural Annihilation of Structural Rights, 61 Hastings L.J. 1 (2009)

Joseph Landau, Muscular Procedure: Conditional Deference in the Executive Detention Cases, 84 Wash. L. Rev. 661 (2009)

Mark A. Hill, Note, Opening the Door for Bias: The Problem of Applying Transferee Forum Law in Multidistrict Litigation, 85 Notre Dame L. Rev. 341 (2009)

Daniel C. Lopez, Note, Collective Confusion: FLSA Collective Actions, Rule 23 Class Actions, and the Rules Enabling Act, 61 Hastings L.J. 275 (2009)

Nicholas Tymoczko, Note, Between the Possible and the Probable: Defining the Plausibility Standard after Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, 94 Minn. L. Rev. 505 (2009)


February 12, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 11, 2010

Decision of Interest on the Class Action Fairness Act (CAFA)

A recent Seventh Circuit decision holds that the denial of class certification in federal court does not eliminate federal subject-matter jurisdiction under the Class Action Fairness Act (CAFA). Therefore, when a case is removed to federal court under CAFA and class certification is denied, the case should remain in federal court and should not be remanded.

The case is Cunningham Charter Corp. v. Learjet Inc., No. 09-8042, ___ F.3d ___, 2010 WL 199627, 2010 U.S. App. LEXIS 1452 (7th Cir. Jan. 22, 2010). Writing for the panel, Judge Posner reasoned:

[I]f a state happened to have different criteria for certifying a class from those of Rule 23, the result of a remand because of the federal court's refusal to certify the class could be that the case would continue as a class action in state court. That result would be contrary to the Act's purpose of relaxing the requirement of complete diversity of citizenship so that class actions involving incomplete diversity can be litigated in federal court.

He added: "Our conclusion vindicates the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed."

(Hat Tip: BNA's US Law Week)


February 11, 2010 in Class Actions, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Tyler on United States v. Klein

This paper might be of special interest to federal courts teachers who teach United States v. Klein. Professor Amanda L. Tyler (George Washington University Law School) has posted "The Story of Klein: The Scope of Congress's Authority to Shape the Jurisdiction of the Federal Courts" on SSRN.  It will be published in Jackson & Resnik's Federal Courts Stories.

The abstract states:

Almost 140 years after the Supreme Court handed down the decision, the Civil War-era case of United States v. Klein continues to baffle students and scholars alike. Indeed, as one observer has written, “Klein is sufficiently impenetrable that calling it opaque is a compliment.” But making sense of the decision has taken on new importance. For much of its history, Klein has stood as the only occasion on which the Supreme Court has struck down a limitation on federal court jurisdiction drafted as such by Congress. During the 2007 Supreme Court Term, however, the Court once again resisted an encroachment on its jurisdiction framed in such terms, and thereby invited a new round of debate over what limits govern Congress’s authority to shape the jurisdiction and powers of the judicial branch.


February 11, 2010 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Penn Law Review Publishes Papers from 2009 AALS Panel

The latest edition of the Penn Law Review features the papers written for the 2009 AALS Panel, "The Changing Face of Federal Civil Pretrial Practice."

The papers are:

Foreword: Procedure as Palimpsest
Catherine T. Struve
Comparative Convergences in Pleading Standards
Scott Dodson
Taming Twombly, Even After Iqbal
Edward A. Hartnett
The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases
Elizabeth M. Schneider

February 10, 2010 in Federal Courts, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Black, Hyman, & Silver on the Effects of "Early Offers" in Medical Malpractice Cases

Professor Bernard S. Black (Northwestern University School of Law), Professor David Hyman (University of Illinois College of Law), and Professor Charles Silver (University of Texas School of Law) have posted "The Effects of 'Early Offers' in Medical Malpractice Cases: Evidence from Texas" on SSRN.  It is also published in the Journal of Empirical Legal Studies, Vol. 6, pp. 723-67 (2009).

The abstract states:

Medical malpractice litigation is costly and time-consuming. Professor Jeffrey O'Connell, with various coauthors, has long advocated 'early offer' rules that would encourage defendants to offer to settle for economic damages plus attorney fees, and punish plaintiffs who refuse such offers. Using detailed closed claims data from Texas for 1988-2005, we simulate the effects of these 'early offers.'

We find that defendants will normally not make early offers in cases with large economic damages (over $500,000 in 1988 dollars) because doing so will increase payouts. Early offers will normally reduce payouts, and hence will be made, in cases with small economic damages (under $100,000 in 1988 dollars). Defendants may also make offers in cases with moderate ($100,000-500,000) economic damages, depending on case characteristics and the plaintiff’s chances of prevailing. 

An early offer program will (i) sharply reduce payouts in cases with small economic damages; (ii) will not materially affect predicted payouts in other cases; (iii) will have very different effects on different types of plaintiffs, with large payout reductions for elderly and deceased plaintiffs and much smaller effects for newborns and employed adult plaintiffs; and (iv) will overlap substantially in its effects with statutory caps on non-economic damages, and hence have a smaller effect in states with these caps. 

Our mixed results contrast sharply with dramatic claims by O’Connell and co-authors, who predict 70% reductions in payouts and defense costs. Their estimates reflect the compound effects of a series of unreasonable assumptions.

This article, in part, responds to Hersh, O’Connell and Viscusi, An Empirical Assessment of Early Offer Reform for Medical Malpractice, 36 Journal of Legal Studies s231-s259 (2007).

Hersch, O’Connell and Viscusi reply to this article in Reply to the Effects of 'Early Offers' in Medical Malpractice Cases: Evidence from Texas, 7 Journal of Empirical Legal Studies (forthcoming 2010), working paper version available at

We extend our analysis and respond to Hersch, O’Connell and Viscusi in Black, Hyman, and Silver, O’Connell Early Settlement Offers: Toward Realistic Numbers and Two-Sided Offers, 7 Journal of Empirical Legal Studies (forthcoming 2010), available at


February 10, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Conference Announcement -- "Aggregate Litigation: Critical Perspectives" (Mar. 12)

The George Washington University Law School is hosting a conference, Aggregate Litigation: Critical Perspectives, that may be of interest to our readers. Description and details after the jump:

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February 9, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Caponi on Class Actions in Italy

Professor Dr. Remo Caponi (Dipartimento di diritto privato e processuale) has posted "Class Actions in the Italian Legal System" on SSRN. 

The abstract states:

This paper focuses on the key choices of the recent Italian legislation on collective redress actions (azioni collettive risarcitorie). The rules provided for by Article 140-bis codice del consumo (Consumer Code) can be considered only a starting point of a modern regulation in this field (see Sects. 1, 2, 4). Indeed, Art. 140-bis shows several regulatory flaws (see Sect. 3 for the lack of special rules on financial support for collective actions, Sect. 8 for issues relating to the opt-in approach, Sect. 9 for the prerequisites concerning the admissibility of the collective action, Sect. 10 for the publicity of collective actions, Sect. 11 for the contents of the judgment), although it sets out some noteworthy key issues (see Sect. 5 for standing, Sect. 6 for the opt-in approach, Sect. 12 for collective settlement). The Italian legislation on collective redress actions in the field of consumer protection certainly requires some improvements (see Sect. 7 on a de lege ferenda ‘dual system’). However, it can be considered a step forward in the right direction (see Sect. 13).


February 8, 2010 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Class actions against Toyota begin

The National Law Journal reports on the several class actions that have been brought against Toyota in the wake of the gas pedal problems and recalls.  The lawsuits are consumer class actions that seek damages for economic losses stemming from reduced value of cars subject to this problem.

It looks like the lawsuits are being filed state by state with the expectation that they will then be consolidated as an MDL.  The lead plaintiffs in the lawsuits appear to be persons whose cars actually experienced the gas pedal issues.  Although these plaintiffs have not alleged personal injury, there will be some serious typicality issues given the very broad class definition that the attorneys are seeking.

While the plaintiffs face some challenges in terms of class certification and causation, there is no question that multiple billion dollar lawsuits will pose a major litigation challenge to Toyota going forward. 


February 8, 2010 in Class Actions, In the News, Mass Torts, MDLs | Permalink | Comments (0) | TrackBack (0)

Sunday, February 7, 2010

Twombly/Iqbal Stats from the Federal Judicial Center

This is a report from the Federal Judicial Center of data concerning motions to dismiss in the months before and after both Twombly and Iqbal.  The data are subject to some important limitations, such as the fact that it does not distinguish between 12(b)(6) and other Rule 12 motions, and the fact that many cases settle before motions are decided -- settlements that themselves might reflect parties perception of the law.  It also does not include information on whether complaints were dismissed with or without prejudice.

H/T Kevin Clermont


February 7, 2010 in Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)