February 20, 2010
Menkel-Meadow & Garth on Empirical Studies of Civil Procedure
Professor Carrie Menkel-Meadow (Georgetown University Law Center; University of California, Irvine Law School) and Professor Bryant Garth (Southwestern Law School; American Bar Foundation) have posted "Process, People, Power and Policy: Empirical Studies of Civil Procedure" on SSRN. It will be published in the Oxford Handbook of Empirical Legal Studies (P. Cane & H. Kritzer, eds.).
February 19, 2010
UPDATED: Texas Supreme Court Justices Sued in Federal Court for Failing to Rule on Class Certification Appeal
Plaintiffs in a Texas state court class action against Southwestern Bell have been waiting years for the Texas Supreme Court to decide whether the trial court's order certifying the class was proper. Southwestern Bell appealed to the Texas Supreme Court in November 2005, and oral argument occurred in March 2007.
As reported here, the plaintiffs have now sued the nine Justices of the Texas Supreme Court in federal court, seeking declaratory relief. Plaintiffs are asking the court to declare that the Texas Supreme Court's delay is depriving them of their rights to due process and judicial access, and that "the Texas Supreme Court is constitutionally bound to make a decision at a meaningful time and in a meaningful manner." The case is Marketing On Hold, Inc. v. Jefferson, No. 10-cv-00104-SS (W.D. Tex.). Docket information is available via Justia and Pacer.
(Hat Tip: Roger Baron)
Update from the "be careful what you wish for" department: The Texas Supreme Court issued its 27-page decision today, reversing the lower court and decertifying the plaintiff class. It concluded that "the putative class representative failed to establish that it adequately represents the class."
(Hat Tip: Alexandra Albright)
February 18, 2010
Spencer on Iqbal and Restrictive Procedure
Prof. Benjamin Spencer (Washington & Lee) has posted on SSRN his forthcoming piece, Iqbal and the Slide Toward Restrictive Procedure, part of the Lewis & Clark Law Review's symposium on Ashcroft v. Iqbal. Here's the abstract:
Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscoresthe substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.
Posner and Sykes on the Economics of the Law of the Sea
Eric Posner (University of Chicago Law School) and Alan Sykes (Stanford Law School) have posted Economic Foundations of the Law of the Sea to SSRN.
The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.
February 17, 2010
Choi et al. on The Price of Pay to Play in Securities Class Actions
Stephen Choi (NYU School of Law), Drew Johnson-Skinner (NYU School of Law), and Adam Pritchard (University of Michigan Law School have posted The Price of Pay to Play in Securities Class Actions.
This paper studies the effect of campaign contributions to lead plaintiffs - pay to play - on the level of attorneys’ fees in securities class actions. We find that state pension funds generally pay lower attorneys’ fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to officials with influence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead plaintiff with a single plaintiffs’ attorney firm. Thus, pay to play appears to increase agency costs borne by shareholders in securities class actions, undermining one of Congress’s principal goals in adopting the Private Securities Litigation Reform Act.
February 16, 2010
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:
George A. Bermann, U.S. Class Actions and the "Global Class", 19 Kan. J.L. & Pub. Pol'y 91 (2009)
Bryan Druzin, Buying Commercial Law: Choice of Law, Choice of Forum, and Network Externalities, 18 Tul. J. Int'l & Comp. L. 131 (2009)
Mitchell Gordon, One Text, Two Tales: When Executive/Judicial Balances Diverged in Argentina and the United States, 19 Ind. Int'l & Comp. L. Rev. 323 (2009)
Carter G. Phillips, Lewis F. Powell Lecture, 66 Wash. & Lee L. Rev. 1467 (2009)
Christopher A. Whytock, Domestic Courts and Global Governance, 84 Tul. L. Rev. 67 (2009)
Erica B. Haggard, Note, Removal to Federal Courts from State Administrative Agencies: Reevaluating the Functional Test, 66 Wash. & Lee L. Rev. 1831 (2009)
Denise Mazzeo, Note, Securities Class Actions, CAFA, and a Countrywide Crisis: A Call for Clarity and Consistency, 78 Fordham L. Rev. 1433 (2009)
Daniel Northrop, Note, The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention that the Attorney Draft a Document to be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege, 78 Fordham L. Rev. 1481 (2009)
Robert Terenzi, Jr., Note, When Cows Fly: Expanding Cognizable Injury-in-Fact and Interest Group Litigation, 78 Fordham L. Rev. 1559 (2009)
February 15, 2010
Now In Print: Fordham Law Review Symposium On Owen Fiss's "Against Settlement"
The Fordham Law Review hosted a symposium in 2009 entitled "Against Settlement: Twenty-Five Years Later." The issue is now in print, and the contributions to the symposium are available here. Here's the line-up:
Howard M. Erichson, Foreword: Reflections on the Adjudication-Settlement Divide, 78 Fordham L. Rev. 1117 (2009)
John Bronsteen, Some Thoughts about the Economics of Settlement, 78 Fordham L. Rev. 1129 (2009)
Amy J. Cohen, Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 Fordham L. Rev. 1143 (2009)
Kenneth R. Feinberg, Reexamining the Arguments in Owen M. Fiss, Against Settlement, 78 Fordham L. Rev. 1171 (2009)
Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78 Fordham L. Rev. 1177 (2009)
Michael Moffitt, Three Things to Be Against ("Settlement" Not Included), 78 Fordham L. Rev. 1203 (2009)
Jacqueline Nolan-Haley, Mediation Exceptionality, 78 Fordham L. Rev. 1247 (2009)
Hon. Jack B. Weinstein, Comments on Owen M. Fiss, Against Settlement (1984), 78 Fordham L. Rev. 1265 (2009)
Owen M. Fiss, The History of an Idea, 78 Fordham L. Rev. 1273 (2009)
February 14, 2010
New Qui Tam suit draws broad intervenor efforts from state governments
Law.com reports here about a qui tam suit concerning the quality of PVC pipes. The plaintiffs allege that J-M Manufacturing deliberately mislead regulators and consumers with products that did not meet manufacturing standards. The recently unsealed complaint illustrates the interesting path of some qui tam suits: (1) a government fails or declines to exercise authority; (2) private litigants file a qui tam suit; (3) governments seek to intervene in the lawsuit.