Saturday, March 6, 2010

Chamblee Burch on Procedural Adequacy

Professor Elizabeth Chamblee Burch (Florida State University College of Law) has posted "Procedural Adequacy" on SSRN.  It will be published in the Texas Law Review.

The abstract states:

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” principle as our yardstick for adequate representation is alluring - it removes motivations and morality from the equation and avoids the stickiness that those calculations entail. Plus, Professor Tidmarsh’s careful treatment of the philosophical and economic arguments underlying the joinder rules make a compelling argument for the change. My concern, however, is two-fold: (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class action legitimacy.


March 6, 2010 in Class Actions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 4, 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:

Hon. Armand Arabian, The Sexual Assault Counselor-Victim Privilege: Jurisdictional Delay into an Unclaimed Sanctuary, 37 Pepp. L. Rev. 89 (2009)

Frank Deale, Jurisdiction, Transfer, and Pretrial: Using Fed. R. Civ. P. 16 to Resolve Forum Convenience Disputes, 53 How. L.J. 1 (2009)

Michael Devine, The Effect of the Taiwan Relations Act of 1979 on Res Judicata and Collateral Estoppel with Respect to Taiwanese and Third-Country Parties in United States Courts, 8 Rich. J. Global L. & Bus. 553 (2009)

Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933 (2009)

Michael Lii, An Empirical Examination of the Adequate Alternative Forum in the Doctrine of Forum Non Conveniens, 8 Rich. J. Global L. & Bus. 513 (2009)

Jay Tidmarsh, Exiting Litigation, 41 Loy. U. Chi. L.J. 263 (2010)

Jeffrey A. Van Detta, The Decline and Fall of the American Judicial Opinion, Part I: Back to the Future from the Roberts Court to Learned Hand—Context and Congruence, 12 Barry L. Rev. 53 (2009)

Jason Wojciechowski, Federalism Limits on Article III Jurisdiction, 88 Neb. L. Rev. 288 (2009)

Continue reading

March 4, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tamanaha on Quantitative Studies of Judging

Brian Z. Tamanaha (Washington University School of Law) has posted Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging to SSRN.

Political scientists and law professors have lately taken to asserting that quantitative studies of judging reveal worrisome findings about the rule of law in the U.S. judicial system. The authors of Are Judges Political?, for example, declare: “We show that variations in panel composition lead to dramatically different outcomes, in a way that creates serious problems for the rule of law.”

To evaluate such assertions, one must first know what the rule of law requires of judges; then one must identify or measure how much, or in what ways, judges are falling short of these requirements: there must be rule of law baselines or standards. None exist, however - a gap which allows researchers to draw misleading conclusions from the results of their studies.

This essay demonstrates the need for rule of law baselines and offers several proposals for how they might be constructed (with due warnings about their limitations). Furthermore, it argues that the incorporation of such baselines into quantitative research on judging will enhance the value of the information produced in these studies.

This brief essay was presented at a two-day colloquium at Duke Law School involving federal judges, legal theorists, and political scientists, which was convened to facilitate a productive exchange of ideas on the design and orientation of quantitative research on judging.


March 4, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kundis Craig on Standing and Environmental Law

Professor Robin Kundis Craig (Florida State University College of Law) has posted "Standing and Environmental Law: An Overview" on SSRN. 

The abstract states:

Standing has long been one of the most common constitutional challenges in federal environmental cases. While standing is technically a requirement in all federal ]cases in order to satisfy those courts’ constitutional restriction to hearing “Cases” and “Controversies,” standing rarely becomes a contested issue in “normal” litigation involving that plaintiff’s assertion that a defendant injured the plaintiff personally, as in most tort, property, and contract litigation. Instead, it is the “public interest” nature of many environmental lawsuits that has made environmental law a significant flashpoint for the U.S. Supreme Court’s standing jurisprudence. Specifically, because environmental plaintiffs often bring public interest claims, their connections to the legal problems challenged can appear attenuated, prompting defendants to assert that the plaintiffs lack standing to bring the legal challenge.

Environmental standing law has a long history in the Supreme Court, but new standing issues, such as the possibility of special standing rules for states, still arise. This chapter begins in Part I by tracing the early history of standing doctrine in the Court. Part II shifts focus to the Court’s specifically environmental standing decisions in the 20th century, emphasizing the importance of its 1992 decision in Lujan v. Defenders of Wildlife. Part III provides an overview of continuing and emerging issues in environmental standing, including, for example, the problem of increased risk (probabilistic) standing and the Supreme Court’s suggestion in Massachusetts v. EPA that states are entitled to “special solicitude” in the standing analysis.


March 4, 2010 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

Van Boom on the Role of the European Insurance Industry in Funding Civil Litigation

Professor Willem H. Van Boom (Erasmus University Rotterdam School of Law) posted "Juxtaposing BTE and ATE--on the Rule of the European Insurance Industry in Funding Civil Litigation" on SSRN.  

The abstract states:

One of the ways in which legal services are financed and indeed shaped, is through private insurance arrangement. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and businesses. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands of competition. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved and this causes behavioural dynamics that are not easily predicted or influenced.

Against this background, this paper looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions and by painting a picture of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, there is the problematic long-term sustainability of some ATE products. Secondly, there are challenges that policy-makers who would like to nudge consumers into voluntarily taking out BTE LEI need to face.


March 3, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Further Commentary on Reed Elsevier v. Muchnick

Readers who are following yesterday's SCOTUS decision in Reed Elsevier v. Muchnick may be interested in today's commentary by Professor Howard Wasserman (Florida International) over at PrawfsBlawg: Copyright and the (hopefully) end of drive-by jurisdictional rulings.

See also additional coverage of the decision by the National Law Journal.


March 3, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Commentary on Reed Elsevier v. Muchnick: A Win for Jurisdictional Clarity

Below, Professor Scott Dodson (William & Mary) comments on today's SCOTUS decision in Reed Elsevier v. Muchnick:


Today, the Supreme Court decided Reed Elsevier v. Muchnick and held that § 411(a) of the Copyright Act is not jurisdictional.  At issue were the rights of freelance authors in their unregistered works.  The authors had granted licenses to publish their works in print copies.  Without the authors’ specific permission, the publishers also published the works electronically.  In a previous case, New York Times Co. v. Tasini, the Supreme Court had held that the Copyright Act requires specific permission from authors to print works electronically.  Because the authors never gave such permission, they sued the publishers in a class action for violations of the Copyright Act.


The parties reached a settlement.  The settlement allowed payment to all authors, including those whose works were never registered with the Copyright Office, though authors with registered works received priority in payment and a relatively higher amount.  In return, the authors granted permission to publish the works electronically.


Ten individual authors objected on the ground that the settlement’s priority was unfair to authors with unregistered works.  The parties responded that authors of unregistered works had nearly worthless claims under § 411(a) of the Copyright Act, which states: “[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”


The district court certified the class and approved the settlement.  The objectors appealed, and the Second Circuit, on its own, vacated the certification and settlement approval on the ground that § 411(a) deprived the district court of subject-matter jurisdiction over claims based on the unregistered works and therefore could not enter a settlement of those claims in a class action context.  More on the background, opinions, and arguments of the parties is available in the ABA’s Preview, accessible with subscription here.


The Supreme Court reversed.  It held, properly in my view, that § 411(a) makes registration a “precondition” to instituting a Copyright Act infringement claim but that § 411(a) does not restrict a federal court’s subject-matter jurisdiction over infringement claims involving unregistered works.


The way the Court got there was more interesting.  From about 1998 until 2006, the Court decided a series of cases that tended to scale back the use of the term “jurisdictional” and clarify that many limits were nonjurisdictional “claim processing rules.”  One of those was a case called Arbaugh v. Y&H Corp., which held that the employer-numerosity requirement of Title VII was a nonjurisdictional element of the claim.  Arbaugh imposed a clear statement rule as a starting point for analyzing the jurisdictional character of statutory limits: if a statutory limit “clearly states” its jurisdictional character, then it is jurisdictional; if not, then it is (maybe) not.


Despite this relatively bright-line rule, the Court decided two cases in 2007 and 2008 that backtracked from this principle.  In Bowles v. Russell, the Court held the deadline to file a notice of appeal in a civil case to be jurisdictional, and in John R. Sand & Gravel Co. v. United States, the Court held the statute of limitations for cases filed in the Court of Federal Claims to be “more absolute,” even though no clear statement appeared in either statute.  Instead, the Court in each case reasoned that longstanding precedent on the question controlled.


Today, the Court reaffirmed its primary commitment to the Arbaugh line of cases and conformed the Bowles line to a more secondary role.  The Court explained that a statutory limit lacking a clear statement of jurisdictionality can still be jurisdictional if the type of limit is one that historically has been treated as such; in other words, context still matters (and Bowles lives on).  But, the kind of requirement in § 411(a) had never had the same kind of historical treatment as the limit in Bowles, and thus the lack of a clear statement of jurisdictionality controlled.  The Court thus reversed the Second Circuit’s holding to the contrary and remanded.  Interestingly, the Court declined to address whether § 411(a)’s registration requirement, though nonjurisdictional, might nevertheless be “mandatory” and thus subject to sua sponte policing by district courts.  Presumably, the lower courts will consider that on remand.


Couple of quick observations about this opinion.  First, the result is right, and in more ways than one.  Section 411(a) is best characterized as a nonjurisdictional rule under the Arbaugh line of cases, though I would argue that even more nuance is appropriate in certain instances.  And, the Court was right to leave open the possibility that, though nonjurisdictional, the registration requirement might still be “mandatory” and thus have certain jurisdictional effects.  Those interested in what that might look like might find my article “Mandatory Rules” informative.  Finally, the Court was right to limit Bowles, which, as I have written previously, was wrong on many grounds.


But, second, the Court’s reinterpretation and reconciliation of Bowles is not persuasive.  Justice Ginsburg, in her concurrence today, more accurately recounts the divergence of Bowles and a more persuasive way to reconcile them—by limiting Bowles and its progeny to those rare circumstances in which the Supreme Court itself had long typed the limit in question as jurisdictional.


It is not entirely clear why those in the majority could not agree with Justice Ginsburg’s approach.  Perhaps that is in part because those in the majority were the same who signed on to Bowles itself.  Or, perhaps the majority wishes not to commit itself to such a narrow interpretation of Bowles for other reasons.


Whatever the reason, the disagreement between the majority and concurrence is small; the broader agreement—that Arbaugh’s clear statement rule generally controls—is an important one, one that will help clarify jurisdictional characterization issues in a wide range of cases.  And, in this case in particular, it means that the parties are one big step closer to settlement.


March 2, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (3) | TrackBack (0)

SCOTUS Decision in Reed Elsevier v. Muchnick

Today the Supreme Court issued its decision in Reed Elsevier, Inc. v. Muchnick, covered earlier here, here, and here. Justice Thomas delivered the Court's opinion. Justice Ginsburg (joined by Stevens and Breyer) concurred in part and concurred in the judgment. Justice Sotomayor took no part in the decision.

More detailed coverage to come.


March 2, 2010 | Permalink | Comments (0)

Monday, March 1, 2010

Civil Procedure and Federal Courts At the Movies

With the Oscars coming up, it's a great time to check out the Bora Laskin Law Library's fantastic list of movies related to our favorite topics:  civil procedure and federal courts. You might also find some good law flicks in the book "Reel Justice: The Courtroom Goes to the Movies" by Paul Bergman and Michael Asimow.

[Hat Tip: Julie Cromer Young and Scott Dodson]

March 1, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, February 28, 2010

Sadurski on Judicial Review in Central and Eastern Europe

Wojceich Sadurski (University of Sydney - Faculty of Law) has posted Judicial Review in Central and Eastern Europe: Rationales or Rationalizations? to SSRN.

Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe - especially, from Germany - and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts’ legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.


February 28, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)