Saturday, April 9, 2011

Actuarial Litigation Symposium at UConn

On Friday, April 15, the University of Connecticut Law School is hosting a conference on actuarial litigation.  If you are interesting in attending, please contact

Schedule and list of speakers after the jump.

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April 9, 2011 in Class Actions, Conferences/Symposia, Mass Torts, MDLs | Permalink | Comments (0)

Friday, April 8, 2011

N.Y. Times Editorial on Wal-Mart v. Dukes

This editorial about the Wal-Mart v. Dukes case, now pending in the Supreme Court, appeared in yesterday’s New York Times. From the text:

[D]uring oral argument last week, conservative justices and liberals to some degree expressed skepticism: Is there enough “cohesion” among the women to justify treating them as a single class? If so, how could a solo trial judge manage such an enormous class action?

A brief by 31 professors of civil procedure explains why the women are a suitable class. Their claims meet the core test: They have in common the question of whether Wal-Mart discriminated against them. Meanwhile, the high cost of litigation compared to the low likely individual recoveries would make it hard for the women to proceed any other way. …

If the court has doubts about whether the class is cohesive or manageable enough, it should ask the trial judge to explore whether there is a single class or more than one — say, salaried female employees and hourly employees or female store managers and other kinds of employees. That would be much fairer than dismissing the case and insisting that 1.5 million women fend for themselves.


April 8, 2011 in Class Actions, In the News, Supreme Court Cases | Permalink | Comments (0)

A Bridge Too Far?: Court Finds Car Crash On "Wisconsin Side" of MN/WI Bridge Supported Personal Jurisdiction in Minnesota

From my childhood, I remember the classic brain teaser, "If a plane crashes on the border between Canada and the Unites States, where do they bury the survivors?" This brain teaser was the first thing that came to my mind when I read the opinion of the Court of Appeals of Minnesota in Christian v. Birch, 763 N.W.2d (Minn.App. 2009), which raised the following question: "If cars crash on the bridge between Minnesota and Wisconsin, where do they hold the trial?" And, according to the court, the answer can be Minnesota, even if the crash is on the "Wisconsin side" of the bridge.

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April 8, 2011 | Permalink | Comments (0)

Thursday, April 7, 2011

Erbsen on Constitutional Spaces

Professor Allan Erbsen (Minnesota) has posted on SSRN a draft of his article Constitutional Spaces, which is forthcoming in the Minnesota Law Review. Here’s the abstract:

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies.  Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises.  Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively.  This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location.  Among the spaces that the Article considers are “the Land” referenced in the Supremacy Clause, the “United States,” “States,” “Territory,” “Property,” the District of Columbia, federal enclaves, vicinage “districts,” the “high Seas,” “admiralty and maritime Jurisdiction,” Indian lands, national airspace, and underground resource deposits.  The Article shows that many discrete problems on which scholars have focused—such as the rights of U.S. military detainees abroad, the role of federal law on Indian reservations, and the extraterritorial reach of state law—are manifestations of a broader phenomenon that exists because of indeterminacy in how the Constitution allocates power over different kinds of spaces.  Considering the many distinct kinds of constitutionally defined and constitutionally overlooked spaces together highlights this indeterminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny.

The Article makes four basic points on which future scholarship can build.  First, although the Constitution creates a typology of spaces that relies on formal categories, the categories often have little utility in resolving specific questions.  The text’s description of the physical contours of spaces and the legal significance of their borders is too imprecise to permit a jurisprudence of labels that converts lines on a map into “bright line” rules of decision.  Determining where in physical space a problem arises is therefore a necessary but insufficient prerequisite to determining which government entities can address the problem and how they may respond.  Second, constitutionally defined places routinely overlap, such that a point in physical space can map onto several points in constitutional space.  Drawing conclusions about how the Constitution regulates particular spaces in particular contexts therefore requires developing rules for allocating concurrent authority and resolving competing claims.  Third, even when spaces do not physically overlap, events in one space routinely have consequences in others, residents of a space routinely act in others, and agents of an entity that controls a particular space often operate in other spaces.  These spillovers raise questions about when entities (such as states, the United States, and tribes) can regulate beyond borders that would normally cabin their jurisdiction.  The parameters of a constitutionally defined place are thus not necessarily coextensive with the reach of an entity governing that place.  Finally, the same questions tend to recur in multiple spatial contexts.  For example, who decides the boundary of a space and by what standards, when can federal courts create common law governing a space, and when does the text’s explicit enumeration of a space’s attributes imply by negative implication the absence of other attributes?  Exposing how these questions arise in multiple contexts reveals subtle dimensions of problems that can go unnoticed when viewed in isolation.  The pervasive and overlooked “where” question in constitutional law therefore merits systemic scrutiny.


April 7, 2011 in Recent Scholarship | Permalink | Comments (0)

Judge Sentences Juror to More Jury Duty

From my home turf of Brooklyn, we have this stunning account of a woman's racist comments on jury duty.  When the judge sensed that she made "wildly racist" and anti-law enforcement comments simply for the purpose of being excused, he informed her that she will have to show up for jury duty...indefinitely.  He eventually excused her, but not before giving her a stern lecture.


April 7, 2011 in In the News | Permalink | Comments (0)

Outside of My Jurisdiction: Sixth Circuit Reverses Prior Precedent, Finds 1 Year Deadline of Section 1446(b) to be Procedural

28 U.S.C. Section 1446(b) provides in relevant part that

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

Meanwhile, 28 U.S.C. Section 1447(c) provides in relevant part that

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). 

So, assume that (1) a defendant removes an action to federal court based upon diversity jurisdiction more 1 year after the commencement of an action; and (2) the plaintiff moves to remand more than 30 days after the filing of the notice of removal. Was the untimely removal by the defendant a procedural defect that was waived by the plaintiff when it failed to file a timely motion for remand? Or, was the untimely removal by the defendant a jurisdictional defect that could not be waived by the plaintiff, meaning that the court should grant the motion to remand? In other words, is the 1 year deadline in 28 U.S.C. Section 1446(b) jurisdictional or procedural? This was the question addressed by the Sixth Circuit in its recent opinion in Music v. Arrowood Indem. Co., 632 F.3d 284 (6th Cir. 2011), with the court reversing its prior (unpublished) opinion on the issue.

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April 7, 2011 | Permalink | Comments (0)

Tuesday, April 5, 2011

Commentary on Pleading and the Duke Lacrosse Litigation

Over at Prawfsblawg, Howard Wasserman has been examining the recent decisions by U.S. District Judge James Beaty in civil lawsuits brought by former members of the Duke lacrosse team against the City of Durham, District Attorney Michael Nifong, and numerous other defendants.

His most recent post (Pleading in the Duke lacrosse opinions) looks at what Judge Beaty's decisions have to say about pleading, including his application of Iqbal.


April 5, 2011 in Current Affairs, Recent Decisions, Twombly/Iqbal, Weblogs | Permalink | Comments (0)

But They Just Can't Kill The Beast: Seventh Circuit Makes Latest Attempt To Slay "Reasonable Probability" Test For Amount in Controversy Requirement

In the wake of Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993), several courts in the Seventh Circuit held that defendants seeking to remove diversity actions from state to federal courts bore the burden or proving by a preponderance of the evidence that there was a "reasonable probability" that the amount in controversy requirement had been satisfied. In fact, by the time that the Seventh Circuit decided Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536 (7th Cir. 2006), "[t]he 'reasonable probability' language...ha[d] been repeated in six other decisions of th[e Seventh] circuit plus more than 80 decisions of district judges within [the Seventh CIrcuit]-and, as far as we can ascertain, by no judge outside this circuit." The fact that courts in the Seventh Circuit were still using the "reasonable probability" test in connection with the amount in controversy requirement in 2006 was surprising to the court, which thought it had put it to rest in its 2005 opinion in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005). But like a movie monster, the test just wouldn't die. The Seventh Circuit thus sought to make its intentions clear in Sadowski by concluding

To recap: a proponent of federal jurisdiction must, if material factual allegations are contested, prove those jurisdictional facts by a preponderance of the evidence. Once the facts have been established, uncertainty about whether the plaintiff can prove its substantive claim, and whether damages (if the plaintiff prevails on the merits) will exceed the threshold, does not justify dismissal....Only if it is "legally certain" that the recovery (from plaintiff's perspective) or cost of complying with the judgment (from defendant's) will be less than the jurisdictional floor may the case be dismissed. 

But, despite this language, the "reasonable probability" test. just. wouldn't. die. The Seventh Circuit's latest attempt to drive a stake into the heart of the test was its opinion last Friday in Back Doctors Ltd. v. Metropolitan Property and Cas. Ins. Co., 2011 WL 1206184 (7th Cir. 2011). WIll this attempt be successful?

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April 5, 2011 | Permalink | Comments (0)

Monday, April 4, 2011

SCOTUS Decision on Standing: Arizona Christian School Tuition Organization v. Winn

Today the Supreme Court decided Arizona Christian School Tuition Organization v. Winn (09-987). Splitting 5-4, the Court holds that the plaintiffs lacked standing to bring an Establishment Clause challenge to an Arizona law providing “tax credits for contributions to school tuition organizations, or STOs,” which “use these contributions to provide scholarships to students attending private schools, many of which are religious.”

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April 4, 2011 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Habeas Decision

Today, the Supreme Court handed down yet another habeas decision.  

 Cullen v. Pinholster, No. 09-1088. A federal court conducting review of a state prisoner's habeas corpus petition under 28 U.S.C. §2254(d)(1), which authorizes relief if the decision of a state court that adjudicated the claim on the merits was "contrary to, or involved an unreasonable application of, clearly established Federal law," is limited to the record that was before the state court.

More details are available at the ever-reliable SCOTUSBlog.



April 4, 2011 in In the News, Supreme Court Cases | Permalink | Comments (0)

First is the Worst: Northern District of California Rejects First-Served Rule, Adopts Last-Served Rule For Removal Under § 1446(b)

In relevant part 28 U.S.C. Section 1446(b) provides that

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

Section 1446(b) is easy to apply in single defendant cases and multiple defendant cases in which all defendants are served on the same date. But how does it apply in multiple defendant cases in which defendants are served on different dates? That was the question addressed by the United States District Court for the Northern District of California in its recent opinion in Toyz, Inc. v. Wireless Toyz, Inc., 2010 WL 334475 (N.D.Cal. 2010).

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April 4, 2011 | Permalink | Comments (2)