Friday, April 22, 2011
The current issue of the Harvard Law Review (Vol. 124, No. 6) is dedicated to Harvard Professor Emeritus Benjamin Kaplan. In Memoriam: Benjamin Kaplan features tributes authored by Justice Stephen Breyer, Justice Raya Dreben, Justice Ruth Bader Ginsburg, Marjorie Heins, Arthur Miller, Martha Minow, and Lloyd Weinreb.
Thursday, April 21, 2011
Stand in the Place Where You Live?: DDC Opinion Raises Questions About Whether Prospective Intervenors in D.C. Circuit Must Establish Article III Standing
Should prospective intervenors have to establish standing before intervening? After the Supreme Court amended Federal Rule of Civil Procedure 24(a)(2) in 1966, federal courts largely agreed for the next 25 years or so that the answer was "no." See Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415 (1991). But thereafter, "[a]n increasing number of circuit and district courts...demanded or suggested that [prospective intervenors] have an 'interest' greater than, or equal to, that necessary for standing or comply with certain standing requirements." Id. In its 1986 opinion in Diamond v. Charles, 476 U.S. 54 (1986), the Supreme Court noted this circuit split, pointing out that "[t]he Courts of Appeals have reached varying conclusions as to whether a party seeking to intervene as of right must himself possess standing." Ultimately, however, the Court concluded, "We need not decide today whether a party seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III."
In the wake of Diamond v. Charles, the circuit split persists. And for years, the D.C. Circuit was on the side of the split requiring prospective intervenors to establish standing. But did that change with the D.C. Circuit's opinion in Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003)? According to Judge Roberts of the United States District Court for the District of Columbia in Akiachak Native Community v. U.S. Dept. of Interior, 584 F.Supp.2d 1 (D.D.C. 2008), the answer is "yes." But according to Judge Kennedy of the same court in his opinion last week in Center for Biological Diversity v. U.S. E.P.A., 2011 WL 1346965 (D.D.C. 2011), the answer is "no." So, who is right, and which position makes more sense? Let's go to the scorecards!
Andrew F. Popper (American University) has posted Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability to SSRN.
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Tuesday, April 19, 2011
Today the Supreme Court decided Virginia Office for Protection and Advocacy v. Stewart (No. 09-529). Per Justice Scalia’s majority opinion (joined by Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor), the case “consider[s] whether Ex parte Young, 209 U. S. 123 (1908), allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State.” The answer:
Although we have never encountered such a suit before, we are satisfied that entertaining VOPA's [the state agency’s] action is consistent with our precedents and does not offend the distinctive interests protected by sovereign immunity.
In conclusion, Justice Scalia writes:
[W]e are mindful of the central role autonomous States play in our federal system, and wary of approving new encroachments on their sovereignty. But we conclude no such encroachment is occasioned by straightforwardly applying Ex parte Young to allow this suit. It was Virginia law that created VOPA and gave it the power to sue state officials. In that circumstance, the Eleventh Amendment presents no obstacle to VOPA’s ability to invoke federal jurisdiction on the same terms as any other litigant.
Justice Kennedy writes a concurring opinion joined by Justice Thomas. Chief Justice Roberts writes a dissenting opinion joined by Justice Alito. Justice Kagan took no part.
So Say We All?: Northern District of Indiana Opinion Addresses Circuit Split Over Whether Each Defendant Must Submit Written Documentation Consenting to Removal
Earlier this month, I posted an entry about the circuit split over how 28 U.S.C. Section 1446(b)'s 30 day period for removal applies in actions with multiple defendants served on different days. In other words, the post dealt with when defendants can move to remove in multiple defendant litigation. In today's post, I will discuss the recent opinion of the United States District Court for the Northern District of Indiana in Boruff v. Transervice, Inc., 2011 WL 1296675 (N.D.Ind. 2011), which discussed the circuit split over whether each defendant in multiple defendant litigation must submit written documentation indicating that it consents to removal or whether one defendant's notice of removal can state that other defendant(s) consent to removal. In other words, this post will deal with how defendants can remove in multiple defendant litigation.
Monday, April 18, 2011
We covered earlier AT&T Mobility v. Concepcion, which was argued in November and is still pending in the Supreme Court. The case presents the issue:
Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures—here, class-wide arbitration—when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.
Professor Lawrence Cunningham (George Washington) has some commentary on the case over at Concurring Opinions, in a post titled Supreme Court Arbitration Rhetoric v. Reality and AT&T.