Friday, April 1, 2011
Yes, according to a symposium going on today at Pepperdine University School of Law entitled Supreme Mistakes: Exploring the Most Maligned Decisions In Supreme Court History. From the symposium brochure:
This symposium will focus on notable United States Supreme Court decisions. However, rather than showcasing the Court’s best or most popularly acclaimed decisions, the symposium will spotlight the most widely criticized decisions the Court has handed down in its history.
Each symposium presenter will articulate exactly why he or she would nominate a particular case for the Supreme Court’s “Hall of Shame.” Another presenter will then have the opportunity to redeem the Court’s reasoning or at least put the case in its historical context.
The underlying goal of the symposium is not to criticize the failings of the Court over its history, but rather to take a serious and scholarly look at the limits of judicial power and discretion through a historical lens.
The symposium will address the following five decisions: Korematsu v. United States, Plessy v. Ferguson, Buck v. Bell, Dred Scott v. Sandford, and Erie Railroad v. Tompkins.
(Hat Tip: Paul Caron)
Serving Dick Tracy: Warren Beatty vs. Tribune Media Services Lawsuit Raises Interesting Personal Jurisdiction, First-Filed Rule Issues
I would like to thank Robin, Cynthia, and Adam for having me as a guest blogger this month. My goal in teaching Civil Procedure has been to try to liven up the class with cases involving interesting fact patterns and interesting issues. This month, I will be blogging about some of these cases.
You may have read recently that Warren Beatty won a lawsuit against Tribune Media Services (TMS) in the United States District Court for the Central District of California and retained the right to make movies and TV shows using the comic book crime fighter Dick Tracy. Specifically,
Beatty had sued Tribune Media, a unit of Tribune Co., back in 2008, claiming Tribune acted wrongly in trying to retrieve the character's rights, which it had assigned to Beatty.
Under the original 1985 agreement between Beatty and Tribune, the rights would revert to Tribune if "a certain period of time" lapsed without Beatty having produced another Dick Tracy movie, TV series or TV special.
Tribune sent Beatty a letter on November 17, 2006, that gave him two years to begin production on Dick Tracy programming. Beatty said he began a Dick Tracy TV special on November 8, 2008, and gave Tribune written notice.
But Tribune responded by asserting that it still had the right to terminate Beatty's rights, which sparked Beatty's lawsuit.
What you might not have heard is that after Beatty filed his lawsuit, TMS filed voluntary petitions for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Delaware, which stayed the California action pursuant to Bankruptcy Code Section 362(a). This then led to interesting rulings relating to personal jurisdiction and the "first-filed" rule after Beatty moved to dismiss and for relief from the automatic stay.
Section 340B of the Public Health Services Act imposes ceilings on prices drug manufacturers may charge for medications sold to specified health care facilities. Those facilities, here called “340B” or “covered” entities, include public hospitals and community health centers, many of them providers of safety-net services to the poor. . . . It is conceded that Congress authorized no private right of action under §340B for covered entities who claim they have been charged prices exceeding the statutory ceiling. This case presents the question whether 340B entities, though accorded no right to sue for overcharges under the statute itself, may nonetheless sue allegedly overcharging manufacturers as third-party beneficiaries of the PPAs to which the manufacturers subscribed. We hold that suits by 340B entities to enforce ceiling-price contracts running between drug manufacturers and the Secretary of HHS are incompatible with the statutory regime.
Thursday, March 31, 2011
We are pleased to welcome Professor Colin Miller as a guest blogger during the month of April. Colin is an Associate Professor at The John Marshall Law School in Chicago, where he teaches evidence, criminal procedure, criminal law, and civil procedure. He is a prolific scholar as well (check out his SSRN page).
Thanks for joining us, Colin!
The Supreme Court heard argument yesterday in three consolidated cases that raise the question of federal preemption of state-law tort liability in claims involving generic drugs. The oral argument transcript is available here.
The cases are PLIVA, Inc. v. Mensing (09-993), Actavis Elizabeth, L.L.C. v. Mensing (09-1039), and Actavis, Inc. v. Demahy (09-1501). (Links are to SCOTUSblog’s case files for each case, where you can find the docket, lower court opinions, and all the briefs.)
An amicus brief filed in the case by administrative law and civil procedure scholars is available here.
Wednesday, March 30, 2011
The transcript from yesterday's oral argument in Wal-Mart Stores, Inc. v. Dukes is available here.
The 11th Circuit recently decided Fitzpatrick v. General Mills, ordering a distrct court to broaden the class it certified. Fitzpatrick is a class action brought by plaintiffs who believe that General Mills overcharged them for "probiotic yogurts" such as Yo Plus and misled them as to any existing health benefits.
The 11th Circuit not only approved of the class action, but suggested that the class does not need to be limited to consumers who relied on statements concerning the yogurt's health benefits.
Tuesday, March 29, 2011
The Supreme Court hears argument today in Wal-Mart Stores, Inc. v. Dukes. The questions presented are:
Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.
Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).
SCOTUSblog’s case file is available here, which contains links to the Ninth Circuit opinion below and the briefing in the case.
There is a ton of coverage on the case and the upcoming argument, including:
- ABA Journal
- Associated Press
- The Atlantic
- Chicago Tribune
- How Appealing
- New York Times
- Washington Post
An amicus brief filed in the case by thirty-one civil procedure professors is available here.
Monday, March 28, 2011
The Federal Judicial Center has released a Report to the Advisory Committee on Civil Rules entitled Motions to Dismiss for Failure to State a Claim After Iqbal, authored by Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared J. Bataillon. Here’s the executive summary:
This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.
After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across types of cases and for the presence of an amended complaint, we found the following:
• There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A).
• In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1).
• Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then.
• There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).
(Hat Tip: Lonny Hoffman)
Michael Steven Green (William and Mary Law School) has posted Erie's Suppressed Premise to SSRN.
The Erie doctrine is usually understood as a limitation on federal courts’ power. This Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts.
According to Erie Railroad Co. v. Tompkins, a federal court must follow state supreme court decisions when interpreting state law. But at the time that Erie was decided, some state supreme courts were still committed to Swift v. Tyson. They considered the content of their common law to be a factual matter, concerning which federal (and sister state) courts could make an independent judgment. Indeed, the Georgia Supreme Court still views its common law this way. In order to explain Brandeis’s conclusion in Erie that state supreme court decisions bind federal courts, even when the state supreme court does not want them to be binding, a premise must be added to his argument - one that limits state supreme court power in this area.
The missing premise is a non-discrimination principle that is a hitherto unrecognized - but essential - part of the Erie doctrine. A state supreme court can free federal courts of the duty to follow its decisions only if it is willing to free domestic courts of the same duty. It cannot discriminate concerning the binding effect of its decisions on the basis of whether the effect is in domestic or federal court.
A similar puzzle arises when a federal court interprets unsettled state law. The Supreme Court has suggested that a federal court should predict how the relevant state supreme court would decide. But many state supreme courts - including the New York Court of Appeals - have indicated that they do not care if federal (or sister state) courts use the predictive method concerning their unsettled law. Here, too, the non-discrimination principle latent in Erie explains how the Supreme Court can demand that federal courts adopt the predictive method, whatever a state supreme court has said about the matter.
The Article ends by briefly discussing the transformative effect that Erie’s non-discrimination principle should have for choice of law, where Swift v. Tyson remains ubiquitous.