June 10, 2011
SCOTUS Decision in Fox v. Vice
Federal law authorizes a court to award a reasonable attorney’s fee to the prevailing party in certain civil rights cases. See 42 U. S. C. §1988. We have held that a defendant may receive such an award if the plaintiff’s suit is frivolous. In this case, the plaintiff asserted both frivolous and non-frivolous claims. We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims. A trial court has wide discretion in applying this standard. But here we must vacate the judgment below because the court used a different and incorrect standard in awarding fees.
For further coverage and analysis, check out Amy Howe’s post at SCOTUSblog.
June 9, 2011
Cameras in the Federal District Courts
The experimental program for cameras in federal district courts is set to go forward. The experiment will last for three years and take place in 14 district courts around the country. As the Blog of the Legal Times reports, the rules are quite restrictive and include a ban on live broadcasts.
Hot Off The Presses: Recent Articles Of Interest
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Shon R. Hopwood, A Sunny Deposition: How the In Forma Pauperis Statute Provides an Avenue for Indigent Prisoners to Seek Depositions Without Accompanying Fees, 46 Harv. C.R.-C.L. L. Rev. 195 (2011).
Douglas C. Rennie, The End of Interrogatories: Why Twombly and Iqbal Should Finally Stop Rule 33 Abuse, 15 Lewis & Clark L. Rev. 191 (2011).
Francis X. Shen, The Overlooked Utility of the Defendant Class Action, 88 Denv. U. L. Rev. 73 (2010).
Mary Elizabeth Keaney, Note, Don’t Steal My Sunshine: Deconstructing the Flawed Presumption of Privacy for Unfiled Documents Exchanged During Discovery, 62 Hastings L.J. 795 (2011).
Alex B. Rothenberg, Recent Development, Comer v. Murphy Oil USA, 607 F.3d 1049, (2010), 85 Tul. L. Rev. 1131 (2011).
Monestier on Transnational Class Actions
Professor Tanya Monestier (Roger Williams University) has posted on SSRN a draft of her article, Transnational Class Actions and the Illusory Search for Res Judicata, which is forthcoming in the Tulane Law Review. Here’s the abstract:
The transnational class action – a class action in which a portion of the class consists of non-U.S. claimants – is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely that an American court will include those foreigners in the U.S. class action.
Current scholarship accepts propriety of the res judicata analysis, but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics” – specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action – complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments; the newness of class action law in most foreign countries; and the distinction between general and fact-specific grounds for non-enforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata. Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.
June 8, 2011
Faculty Hiring Announcement
The Legal Scholarship Network recently circulated this hiring announcement from Adelaide Law School, whose needs include civil procedure:
Adelaide Law School
Associate Professor/Senior Lecturer/Lecturer/Associate Lecturer
Job Reference Numbers: LD, LC, LB or LA
The University of Adelaide is seeking to make a number of appointments in its Law School. Adelaide Law School is the second oldest in Australia to teach law, and has an international reputation for, and a commitment to, excellence in scholarship, learning and teaching. The results of the recent ERA (Excellence in Research for Australia) initiative acknowledged the research strengths of the Adelaide Law School with a 4 ranking. As well as undergraduate programs in law, Adelaide Law School also offers research and coursework postgraduate programs, including Master of Laws, Master of Business Law, and Master of Comparative Law. These positions offer an opportunity to become part of a stimulating legal academic environment, and to make a significant contribution to the legal academy and to the future of the legal profession.
JOB QUALIFICATIONS: You should have:
- a capacity for, and achievements demonstrating, excellence in research and scholarship;
- a commitment to, enthusiasm for, and capacity to deliver excellence in teaching and learning outcomes;
- a capacity and willingness to contribute to the administration of the Law School and the University in a collegial way and by adhering to equal opportunity principles;
- a capacity and willingness to contribute to other activities that enable the Law School to take a vibrant role in engaging with the legal profession and the community.
Applicants should examine the specific selection criteria for the different levels of appointment (A, B, C, or D). Applications from scholars with interests and expertise in all fields of law are invited. Appointees will be expected to teach within the core undergraduate law program and preference may be given to applicants with expertise in the following areas: Criminal Law and Procedure; Administrative Law; Torts; Equity; Civil Procedure; Evidence; and International Law.
(Level D) $111,249 - $122,562 per annum
(Level C) $92,391 - $106,539 per annum
(Level B) $75,425 - $89,569 per annum
(Level A) $52,798 -$71,650 per annum
Plus an employer superannuation contribution of 17% applies.
These positions are tenurable. Commencement date is negotiable, with some positions available from July 2011 and others available from January 2012.
FURTHER INFORMATION: Please refer to selection criteria available online at: http://www.adelaide.edu.au/jobs or alternatively contact the Dean of Law, Professor John Williams, tel: +618 8303 5172 or email: firstname.lastname@example.org or email@example.com
Potential applicants can also view the website of the Law School at: http://www.law.adelaide.edu.au
Deadline: 24 June 2011
APPLICATION PROCEDURE: Your application must include your:
- resume/Curriculum Vitae
- address the selection criteria
- quote the relevant reference number
- include residency status
- include the names, addresses and/or email details of three referees
Email applications to: firstname.lastname@example.org or forward in duplicate to:
Professor John Williams
Adelaide Law School
University of Adelaide
South Australia 5005
Out of Stok: SCOTUS Dismisses Pending Case on the Federal Arbitration Act
We covered earlier the Supreme Court’s grant of certiorari in Stok & Associates v. Citibank (No. 10-514). The case was scheduled to be argued next Term and presented the question:
Under the Federal Arbitration Act (“FAA”), should a party be required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable?
June 7, 2011
SCOTUS Cert Grant of Interest on Preemption: Kurns v. Railroad Friction Products
Yesterday the Supreme Court granted certiorari in Kurns v. Railroad Friction Products Corp. (No. 10-879), which presents the question: Did Congress intend the Federal Railroad Safety Acts to preempt state law-based tort lawsuits?
The Supreme Court docket is here, and the decision below is at 620 F.3d 392 (3d Cir. 2010).
Burns on the Vanishing Trial
Robert P. Burns (Northwestern University) has posted What Will We Lose if the Trial Vanishes to SSRN.
The number of trials continues to decline and federal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.
June 6, 2011
SCOTUS Decision in Erica P. John Fund v. Halliburton
Today the Supreme Court issued its decision in Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403 (see our earlier coverage here and here). The unanimous opinion by Chief Justice Roberts begins:
To prevail on the merits in a private securities fraud action, investors must demonstrate that the defendant’s deceptive conduct caused their claimed economic loss. This requirement is commonly referred to as “loss causation.” The question presented in this case is whether securities fraud plaintiffs must also prove loss causation in order to obtain class certification. We hold that they need not.
The questions presented in Halliburton potentially invited the Supreme Court to address more generally the extent to which a court must consider at the class-certification stage whether the class's claims are (or are likely to be) meritorious. Such guidance might have impacted certain aspects of the now-pending Wal-Mart v. Dukes case. But that does not appear to have happened.
Rather, the Supreme Court’s Halliburton decision simply corrects the Fifth Circuit’s erroneous view that “an inability to prove loss causation would prevent a plaintiff from invoking the rebuttable presumption of reliance” [Op. 7] -- a presumption that stems from the “fraud-on-the-market” theory the Supreme Court endorsed in Basic Inc. v. Levinson. [Op. 5]. According to Chief Justice Roberts, the Fifth Circuit’s approach “contravenes Basic’s fundamental premise—that an investor presumptively relies on a misrepresentation so long as it was reflected in the market price at the time of his transaction. . . . Loss causation has no logical connection to the facts necessary to establish the efficient market predicate to the fraud-on-the-market theory. The Court of Appeals erred by requiring EPJ Fund to show loss causation as a condition of obtaining class certification.” [Op. 7-8] The opinion concludes: "To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand." [Op. 9]