Saturday, June 4, 2011
Professor Steve Vladeck (American University) has posted the following call for papers on Prawfsblawg:
The AALS Section on Federal Courts is pleased to announce a call for papers in conjunction with the 2012 Annual Meeting of the Association of American Law Schools, to be held January 4–8, 2012, in Washington, D.C.
The topic of the section program at the 2012 Annual Meeting (Saturday, January 7, 1:30–3:15 p.m.) is “War, Terrorism, and the Federal Courts Ten Years After 9/11.” To that end, the panel will focus on the unique issues that federal courts have confronted during (and relating to) the conflict against al Qaeda and related terrorist groups, and how that body of jurisprudence has—and may yet—affect the role of the federal courts more generally going forward. Papers submitted in connection with the call should focus on this topic, or any specific aspect thereof, and should be between 15,000 and 30,000 words, including footnotes.
Friday, June 3, 2011
Professor William Dodge (University of California - Hastings) has posted on SSRN a draft of his article, Morrison’s Effects Test, which is forthcoming in the Southwestern University Law Review. Here’s the abstract:
In Morrison v. National Australia Bank, the Supreme Court held that the presumption against extraterritoriality applies "in all cases." But the Court also changed the presumption by shifting its focus from the location of the conduct to the location of the effects. This symposium contribution argues this shift is consistent with the presumption’s underlying rationale and with the Court’s prior case law. It also applies Morrison’s effects test to RICO.
Thursday, June 2, 2011
Last week’s Supreme Court decision in Camreta v. Greene (09-1454) involved a section 1983 action for damages based on alleged violations of the Fourth Amendment in the interview of a nine-year-old elementary-school student by state officials without a warrant or parental consent. The Ninth Circuit held that the officials violated the Fourth Amendment but were entitled to qualified immunity “because the constitutional right at issue was not clearly established under existing law.” [Slip Op. 2]
What makes the case particularly interesting from a Federal Courts standpoint is that the officials (who ultimately won in the Ninth Circuit on qualified immunity grounds) sought certiorari to challenge the Ninth Circuit’s conclusion that their conduct violated the Fourth Amendment. So the first question the Court had to address was: “may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution?” [Slip Op. 2] The answer: yes, according to the majority opinion authored by Justice Kagan and joined by Chief Justice Roberts and Justices Scalia, Ginsburg and Alito. (One commentator described it as an “interesting lineup.”)
Wednesday, June 1, 2011
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Charlotte S. Alexander, Would an Opt In Requirement Fix the Class Action Settlement? Evidence from the Fair Labor Standards Act, 80 Miss. L.J. 443 (2010).
Paul M. Collins, Jr. & Wendy L. Martinek, The Small Group Context: Designated District Court Judges in the U.S. Court of Appeals, 8 J. Empirical Legal Stud. 177 (2011).
Deborah N. Pearlstein, After Deference: Formalizing the Judicial Power for Foreign Relations Law, 159 U. Pa. L. Rev. 783 (2011).
Rojer J. Perlstadt, Interlocutory Review of Litigation-Avoidance Claims: Insights from Appeals Under the Federal Arbitration Act, 44 Akron L. Rev. 375 (2011).
Aaron R. Petty, The Hidden Harmony of Appellate Jurisdiction, 62 S.C. L. Rev. 353 (2010).
Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643 (2011).
Michael E. Rosman, Counting the Days Gone By: A Eulogy for Former Rule 6(a)(2), 159 U. Pa. L. Rev. 635 (2011).
Symposium, Aggregate Litigation: Critical Perspectives, 79 Geo. Wash. L. Rev. 293-772 (2011):
David Betson & Jay Tidmarsh, Optimal Class Size, Opt-Out Rights, and "Indivisible" Remedies, 79 Geo. Wash. L. Rev. 542 (2011).
Robert G. Bone, The Puzzling Idea of Adjudicative Representation: Lessons for Aggregate Litigation and Class Actions, 79 Geo. Wash. L. Rev. 577 (2011).
Lester Brickman, Anatomy of an Aggregate Settlement: The Triumph of Temptation Over Ethics, 79 Geo. Wash. L. Rev. 700 (2011).
Elizabeth Chamblee Burch, Group Consensus, Individual Consent, 79 Geo. Wash. L. Rev. 506 (2011).
Richard Marcus, Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification, 79 Geo. Wash. L. Rev. 324 (2011).
Nancy J. Moore, The Absence of Legal Ethics in the ALI's Principles of the Law of Aggregate Litigation: A Missed Opportunity--and More, 79 Geo. Wash. L. Rev. 717 (2011).
Thomas D. Morgan, Client Representation vs. Case Administration: The ALI Looks at Legal Ethics Issues in Aggregate Settlements, 79 Geo. Wash. L. Rev. 734 (2011).
Alan B. Morrison, Improving the Class Action Settlement Process: Little Things Mean a Lot, 79 Geo. Wash. L. Rev. 428 (2011).
Linda A. Mullenix, Federal Class Actions: A Near-Death experience in a Shady Grove, 79 Geo. Wash. L. Rev. 448 (2011).
Judith Resnik, Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers' Powers, 79 Geo. Wash. L. Rev. 628 (2011).
David Rosenberg & Luke McCloud, A Solution to the Choice of Law Problem of Differing State Laws in Class Actions: Average Law, 79 Geo. Wash. L. Rev. 374 (2011).
Edward F. Sherman, "Abandoned Claims" in Class Actions: Implications for Preclusion and Adequacy of Counsel, 79 Geo. Wash. L. Rev. 483 (2011).
Charles Silver, Ethics and Innovation, 79 Geo. Wash. L. Rev. 754 (2011).
Patrick Woolley, The Jurisdictional Nature of Adequate Representation in Class Litigation, 79 Geo. Wash. L. Rev. 410 (2011).
Note, From Consensus to Collegiality: The Origins of the "Respectful" Dissent, 124 Harv. L. Rev. 1305 (2011).
David Marcus (University of Arizona) has posted When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation to SSRN.
Like any legal text, the Federal Rules of Civil Procedure require interpretation. Given their day-to-day importance in the federal courts, the question of how to do so has received surprisingly little attention. Courts vacillate wildly in the methods they use when they interpret rules, and academic commentary on the question is scant. In this article, I propose a method for rule interpretation. I argue that courts should defer to rulemaker intent and purpose as they apply rules in particular cases. To do so, courts should draw upon a wide variety of sources, including rulemaking history, and reject the sort of interpretive strictures that a textualist method imposes for statutory interpretation. I illustrate how this method works with a critique of the Supreme Court’s recent decisions raising the pleading threshold a plaintiff’s complaint must meet. I show how the interpretation of Rule 8 that the Court rendered conflicts with the best reading of its text, and that the interpretation lacks any plausible basis in rulemaker intent or purpose.
I use an approach that focuses on the various governmental institutions involved in procedural rule promulgation and interpretation to assemble my methodology. In doing so, I argue that a method for the interpretation of a legal text must reflect the institutional setting from which that text emerges, and I show how an institutional approach can explain why interpretive methodologies differ from legal text to legal text. My article thus provides an example of how courts and commentators might craft interpretive methods for any number of legal texts that have thus far eluded the attention of interpretive theory.
Tuesday, May 31, 2011
The University of Florida (Levin College of Law) is seeking applicants for several tenure-track/tenured faculty positions, two of which explicitly target Civil Procedure. See announcements here and here.
Governor Rick Perry has signed a new tort reform law into effect in Texas. The Houston Chronicle reports that the law will shift court and attorney costs to losing plaintiffs and give judges "expanded powers" to dismiss "frivolous lawsuits." The accounts I have read all report that it is losing plaintiffs (not losing parties) who must pay costs. Anyone with more insight into this issue is welcome to contact me!
My bleg has worked! Our very own Texan, Beth Thornburg writes:
The law, Download HB00274Final, actually requires the Texas Supreme Court to make rules for a new motion to dismiss (apparently on the pleadings – “dismissal of causes of action that have no basis on law or fact on motion and without evidence”), and to provide for a cost shift to the “prevailing party” when the motion is granted or denied. So it looks to me like under the language of the bill, a defendant who unsuccessfully moved to dismiss could be ordered to pay the plaintiff’s attorney fees.
The bill also changes a bit (and somewhat inscrutably) the offer of judgment rule.
And it requires the Court to make rules for cheaper and faster disposition of cases where the amount in controversy is less than $100,000.
The full drafting history is available at http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=82R&Bill=HB274