Saturday, February 13, 2010
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.
Friday, February 12, 2010
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:
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)
Thursday, February 11, 2010
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)
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.
Wednesday, February 10, 2010
The papers are:
Foreword: Procedure as Palimpsest
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).
Tuesday, February 9, 2010
Monday, February 8, 2010
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.
Sunday, February 7, 2010
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