May 6, 2011
SCOTUS Approves Latest Amendments to the Federal Rules
Last week the Supreme Court approved and transmitted to Congress the latest round of Federal Rules amendments. This announcement appears on the U.S. Courts website:
On April 26, 2011, the Supreme Court approved the amendments to the following rules and new rules, which were approved by the Judicial Conference at its September 2010 session:
Appellate Rules 4 and 40;
Bankruptcy Rules 2003, 2019, 3001, 4004, 6003; new Rules 1004.2 and 3002.1;
Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49, and new Rule 4.1; and
Restyled Evidence Rules 101-1103.
(The Supreme Court suggested minor style revisions to Evidence Rules 408(a)(1) and 804(b)(4), as approved by the Judicial Conference in September 2010. The Rules Committees and the Executive Committee acting on behalf of the Judicial Conference approved the suggested revisions to Evidence Rules 408 and 804 on March 31, 2011.)
The rules amendments and new rules were transmitted Congress in accordance with the Rules Enabling Act, and will take effect on December 1, 2011, unless Congress enacts legislation to the contrary.
For links to all of the proposed amendments, head here.
May 5, 2011
Mulligan on Dodson's "The Complexity of Jurisdictional Clarity"
Professor Lumen Mulligan (Kansas) has posted on SSRN an essay entitled Clear Rules – Not Necessarily Simple or Accessible Ones, 97 Virginia L. Rev. In Brief 13 (2011). Here’s the abstract:
In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.
We covered Prof. Dodson’s article here.
May 4, 2011
Call for Papers and Proposals: "Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration"
From Professor S.I. Strong (Missouri) comes the following announcement:
Gary Born will give the keynote address at a symposium entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration,” to be convened at the University of Missouri School of Law on October 21, 2011. A works-in-progress conference and a student writing competition is being organized in association with this event, and the University of Missouri School of Law is issuing a call for papers and proposals.
- Proposals for the works-in-progress conference are due by May 20, 2011, with responses anticipated in mid-June. The works-in-progress conference will be held at the University of Missouri on October 20, 2011, the day before the symposium itself.
- Papers for the student writing competition are due August 15, 2011, with the winning paper announced at the symposium. The winner will receive a $300 prize sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch and may have his or her paper published in the Journal of Dispute Resolution as part of the symposium edition.
The symposium brings speakers from Canada, Austria, Switzerland, the United Kingdom and the United States together to discuss complex issues relating to international dispute resolution. Submissions for the works-in-progress conference and student writing competition should therefore bear some relationship to international commercial arbitration, transnational litigation or the connection between the two.
More information about the works-in-progress conference, the student writing competition and the submission process is available at the symposium website, located at: http://www.law.missouri.edu/csdr/symposium/2011/. Submissions and questions should be directed to Professor S.I. Strong at firstname.lastname@example.org. Registration for the symposium itself will open shortly.
The University of Missouri’s award-winning program in dispute resolution consistently ranks as one of the best in the nation. The University of Missouri is the only law school in the United States to have received Recognized Course Provider status from CIArb for courses offered during the regular academic year. London-based CIArb was founded in 1915 and offers training courses and competency assessment courses in international commercial arbitration all over the world.
Keynote speaker Gary Born was awarded Global Arbitration Review’s inaugural “Advocate of the Year” prize on 3 March 2011 at the annual GAR awards dinner in Seoul, Korea. Mr. Born is the author of a number of leading publications on international arbitration and litigation, including International Commercial Arbitration (Kluwer 2009), International Forum Selection and Arbitration Agreements: Drafting and Enforcing (Kluwer 2010), International Arbitration: Cases and Materials (Aspen 2011), and International Civil Litigation in US Courts (Aspen 2007).
May 3, 2011
SCOTUS Cert Grant of Interest: CompuCredit v. Greenwood
As the dust settles from the Supreme Court’s decision in AT&T Mobility v. Concepcion, the Court has granted certiorari in another arbitration case. CompuCredit Corp. v. Greenwood (No. 10-948) presents the question: "Whether claims arising under the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seq., are subject to arbitration pursuant to a valid arbitration agreement."
This somewhat innocuous-sounding question masks an interesting issue of statutory interpretation. As the Ninth Circuit’s decision below puts it:
This appeal presents the question, inter alia, as to whether the word “sue,” as used in the Credit Repair Organization Act, means “arbitrate.” Or, perhaps the question is, as Alice put it: “whether you can make words mean so many different things?” We conclude that Congress meant what it said in using the term “sue,” and that it did not mean “arbitrate.”
Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1205 (footnote omitted) (quoting Lewis Carroll, Through the Looking Glass and What Alice Found There, in The Annotated Alice: The Definitive Edition 213 (Martin Gardner ed., Norton Publishers) (2000)).
Maher on Opt-In Federalism and the Affordable Care Act
Professor Brendan Maher (Oklahoma City University) has posted on SSRN a draft of his article The Benefits of Opt-In Federalism, which is forthcoming in the Boston College Law Review. Here’s the abstract:
The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.
Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.
Bin Laden's Demise: The Civil Procedure Angle
The Blog of the Legal Times has a good post on whether Bin Laden's death will have any effect on those seeking civil redress from the harms he caused on 9/11. The short answer? Not much. From the post:
Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.
If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.
National Debt: Split Over Fair Debt Collection Practices Act Counterclaims Nicely Illustrates Application of 28 U.S.C. Section 1367(c)(4)
28 U.S.C. Section 1367(a) indicates that
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
Meanwhile, 28 U.S.C. Section 1367(c)(4) indicates that
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if...in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
For a while, I have been looking for a good example of a situation in which courts have invoked 28 U.S.C. Section 1367(c)(4) to decline to exercise supplemental jurisdiction over a state law claim. Then, I came across the dispute over whether courts should exercise supplemental jurisdiction over state law breach of contract counterclaims brought by defendant-creditors against plaintiffs suing them for violations of the Fair Debt Collection Practices Act.
The opinion that brought this issue to my attention was Mufwene v. American Credit Exchange, 2010 WL 4539451 (N.D.Ill. 2010). In Mufwene, Patricia Mufwene brought an action against American Credit Exchange in the United States District Court for the Northern District of Illinois, alleging that it violated the Fair Debt Collection Practices Act by
-engaging in conduct the natural consequence of which is to harass, oppress, or abuse her; and
-causing a telephone to ring repeatedly and continuously with the intent to annoy, abuse, and harass her.
In response, American Credit Exchange asserted a counterclaim against Mufwene for breach of contract based on the debt underlying Mufwene's FDCPA claim. In response, Mufwene claimed, inter alia, that the court should decline to exercise supplemental jurisdiction over the counterclaim under 28 U.S.C. Section 1367(c)(4) because
"allowing [American Credit's] counterclaim to go forward would have a chilling effect on the very consumers for whom the FDCPA was designed to protect."
In support of her position, Mufwene cited several cases, including Mostin v. GL Recovery, LLC, 2010 WL 668808 (C.D. Cal. 2010), in which the court agreed with prior precedent which had held that accepting supplemental jurisdiction over state law counterclaims filed in response to FDCPA claims
will increase both the complexity and length of time to resolve Plaintiff's narrow and straightforward FDCPA claim....A California court is better suited to resolve California's state law claims and disputes regarding state law. Declining supplemental jurisdiction also reduces the risk of incorrect application of California law and furthers the principles of comity. Accepting supplemental jurisdiction would also involve this District Court and its limited resources in legal questions of no federal significance.... Finally, considering the purpose of the FDCPA is to give those harmed by an alleged FDCPA violation a remedy against a debt collector regardless of whether the underlying debt is valid, the Court is persuaded to follow the majority of the district courts in the Ninth Circuit [in finding] that strong public policy reasons exist for declining to exercise jurisdiction over [the defendant's] Counterclaim.
The Northern District of Illinois disagreed, concluding that
Mufwene has not identified any relevant Seventh Circuit case law nor has this court's research uncovered any precedential authority supporting Mufwene's position. This court respectfully disagrees with the decisions cited by Mufwene and instead finds that exercising its supplemental jurisdiction over American Credit's counterclaim will support judicial efficiency and economy by not requiring American Credit to burden the state court system with parallel litigation over overlapping issues. Nor does the court find that allowing this counterclaim to proceed before this court will "have a chilling effect" on consumers seeking protection under the FDCPA. Indeed, as the court in Betsey v. Nissan Motor Acceptance Corp., 699 S.E.2d 642, 2010 WL 2925367 (D.Conn. Sept. 10, 2009), "any chilling effect is substantially weakened where as here the debt collector can pursue the deficiency claim against the plaintiff in a separate state court action."
So, which courts are acting correctly? I don't know, but I think that the issue lends itself to a good class discussion and does a nice job of illustrating at least on situation in which courts could decline to exercise jurisdiction under 28 U.S.C. Section 1367(c)(4).