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.
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:
For those of you who may be considering coming to Penn State's Iqbal symposium on March 26, 2010, please be aware that you will need to register by March 23. The event is free. You can find the registration form and additional details regarding the symposium at http://law.psu.edu/academics/journals/law_review/iqbal_symposium. In addition, Penn State Law Review has created a special portal on its Web site at http://www.pennstatelawreview.org/.
I am very pleased to announce that the Honorable Lee H. Rosenthal, U.S. District Court Judge for the Southern District of Texas, Houston Division, and chair of the Judicial Conference Committee on the Rules of Practice and Procedure, will deliver the symposium's keynote address, joining in conversation with the Honorable D. Brooks Smith of the Third Circuit Court of Appeals. In addition, our panels of presenters have expanded.
The symposium will begin at 8:30 a.m. in Lewis Katz Hall, 333 West South Street, Carlisle, PA and will be simulcast to Lewis Katz Building, University Park, PA.
I hope you will consider attending and participating, either in person or through your contribution to the Penn State Law Review's Call for Papers.
Professor of Law
Penn State University
Dickinson School of Law
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 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)
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.
February 10, 2010
Penn Law Review Publishes Papers from 2009 AALS Panel
The papers are:
Foreword: Procedure as Palimpsest
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).
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:
Aggregate litigation lies at the core of American exceptionalism in litigation and is at the center of controversies surrounding the U.S. civil-justice system. Private civil litigation is a critical component in enforcing law in the United States. But aggregation is problematic in that it can skew outcomes, create pressures on defendants to settle meritless claims, disproportionately concentrate legal power, and harm American competitiveness in the global marketplace. Aggregation raises serious questions about the institutional competence of courts to resolve what are often intractable social or political controversies.
This conference will ask and seek to answer important questions about aggregate litigation and will analyze its costs and benefits. Questions and topics include:
What is the optimal level of aggregation?
When is class action litigation appropriate?
What did the American Law Institute’s “Aggregation Project” final report get right, and what did it get wrong?
This event is free, but space is limited. Contact Frances Arias at firstname.lastname@example.org or 202.994.0781 to reserve a ticket.
The conference is at GW law school in Washington DC on Friday, March 12, 2010. For more information, including a list of all panels and panelists, see here.
(Hat Tip: Jay Tidmarsh)
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.
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 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