Thursday, May 12, 2011
Professor Dustin Benham (Texas Tech) has posted on SSRN a draft of his article, Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery, which is forthcoming in the SMU Law Review. Here’s the abstract:
The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.
Wednesday, May 11, 2011
Professor Scott Dodson (William & Mary) has posted on SSRN a draft of his article Hybridizing Jurisdiction, which is forthcoming in the California Law Review. Here’s the abstract:
Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.
This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad forms. The result is a far more complex world than what the simple – but fallacious – dichotomy of jurisdictionality and nonjurisdictionality suggests.
Hybridization enables parties and courts to regulate federal jurisdiction in normatively desirable ways. Court control may re-establish power to inject considerations of fairness into jurisdictional issues. Party control may alleviate some of the costs of jurisdictionality. Further, hybridization can achieve these regulatory rewards while simultaneously retaining a healthy, formal distinction between jurisdictionality and nonjurisdictionality. The result is a cleaner, truer, and more useful conceptualization of jurisdiction.
Chevron has been battling a massive environmental lawsuit brought by citizens of Ecuador for years. The case began with a procedural bang: Chevron successfully convinced the S.D.N.Y. to dismiss the case for forum non conveniens in favor of trying the case in Ecuador. The Ecuadorian court found for the plaintiffs, assessing one of the largest judgments in history on Chevron ($18 billion), and have filed lawsuits in the U.S. to attach Chevron's property and enforce the judgment.
Now Chevron is challenging enforcement, having secured a preliminary injunction from the S.D.N.Y. as to enforcement and attachment. The plaintiffs have now asked the Second Circuit to lift the injunction -- in part because it blocks access to funds that the plaintiffs' lawyers believe they need in order to fight a racketeering lawsuit that Chevron has brought against the plaintiffs and the Ecaudorian government.
This ongoing procedural battle is definitely one to keep watching.
Tuesday, May 10, 2011
Professor Jordan Singer (New England) has posted on SSRN a draft of his article, Proportionality's Cultural Foundation, which is forthcoming in the Santa Clara Law Review. Here’s the abstract:
Since the 1980s, a variety of provisions designed to prevent excessive pretrial discovery have been incorporated into the Federal Rules of Civil Procedure. By almost all accounts, however, these “proportionality” rules have not met their stated goals. The percentage of cases with high levels of discovery has not changed in decades, and concerns about disproportionate discovery are as pronounced as ever. I argue that the failure of the proportionality rules stems from a disconnect between the rules and the prevailing litigation culture. The rules incorrectly assume that excessive discovery is caused by attorneys abusing their discretion during the discovery process, and accordingly seek to limit that discretion. But attorney discretion is not the problem, and in fact attorneys and judges rely on the broad exercise of attorney discretion to create efficient, predictable, and fair resolutions to civil cases. Because the rules directly conflict with cultural norms, they are largely ignored in practice. I therefore propose a radically different approach to combating excessive discovery, by removing the existing restrictions on attorney discretion and implementing new procedures designed to emphasize the cultural values of civil litigation that naturally promote controlled discovery.
Monday, May 9, 2011
Professor Dustin Buehler (Arkansas-Fayetteville) has posted on SSRN a draft of his article Jurisdiction, Abstention, and Finality: Articulating a Unique Role for the Rooker-Feldman Doctrine, which is forthcoming in the Seton Hall Law Review. Here’s the abstract:
Federal courts frequently confuse the Rooker-Feldman doctrine with Younger abstention and preclusion law, often using these doctrines interchangeably to dismiss actions that would interfere with state court proceedings. For years, scholars argued that the Supreme Court should alleviate this confusion by abolishing the Rooker-Feldman doctrine altogether. The Court recently refused to so, however. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Lance v. Dennis, the Court reaffirmed Rooker-Feldman’s vitality, and held that the doctrine plays a unique role, completely separate from abstention and preclusion rules. And yet these decisions leave a key question unanswered: exactly how does Rooker-Feldman interact with Younger abstention and preclusion law? This Article explores the relationship between these three doctrines, and articulates two unique roles that Rooker-Feldman can play. First, Rooker-Feldman is the only doctrine that bars federal court claims complaining of injuries caused by final state court judgments. Second, in the context of civil actions and claims for monetary relief, Rooker-Feldman is the only doctrine that bars litigants from collaterally attacking non-final judgments.