Saturday, August 13, 2011
Folks, you probably already have heard about this, and it's not Civil Procedure-specific, but I have to share it anyway. An anonymous tenured law professor at a "tier one" law school has started a blog called "Inside the Law School Scam." His first post, "Welcome to My Nightmare," asserts that law professors are scamming their students. Another post about law school teaching says, "This is how much preparation I’m doing this summer for the classes I’ll teach this coming academic year: None." And he asserts that each law review article costs the law school between $25,000 to $100,000, with no discernable benefit to the institution or society.
Love it or hate it, you've got to read it.
Hat tip to the ABA Journal.
--Patricia Hatamyar Moore
Friday, August 12, 2011
Professor Daniel Klerman (University of Southern California) has posted on SSRN a draft of his article, The Selection of Thirteenth-Century Disputes for Litigation. Here’s the abstract:
Priest and Klein's seminal 1984 article argued that litigated cases differ systematically and predictably from settled cases. This article tests the Priest-Klein selection model using a data set of thirteenth-century English cases. These cases are especially informative because juries rendered verdicts even in settled cases, so one can directly compare verdicts in settled and litigated cases. The results are consistent with the predictions of the Priest-Klein article, as well as with the asymmetric-information selection models developed by Hylton and Shavell.
Wednesday, August 10, 2011
Over at TaxProf Blog, Paul Caron (Cincinnati) reports on two class action lawsuits that were filed today against New York Law School and Thomas M. Cooley Law School. Here are links to the complaints in Gomez-Jiminez v. New York Law School and MacDonald v. Thomas M. Cooley Law School.
If you’re wondering about subject-matter jurisdiction and the Class Action Fairness Act (CAFA), you’re not alone. The Cooley class action was filed in U.S. District Court for the Western District of Michigan and invokes CAFA diversity jurisdiction [28 U.S.C. § 1332(d)(2)]. The NYLS class action was filed in New York state court (in Manhattan), and the first paragraph of the complaint preemptively addresses the possibility of CAFA removal with an allegation that seems geared toward CAFA’s local-controversy and/or home-state exceptions [See 28 U.S.C. § 1332(d)(4)]. The complaint states: “Upon information and belief, more than two-thirds of all members of the putative class, at all material times relevant to the allegations of this Complaint, were residents of the State of New York and are current or former students of Defendant New York Law School.”
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Hiro N. Aragaki, Arbitration's Suspect Status, 159 U. Pa. L. Rev. 1233 (2011).
Richard A. Bales & Diana M. Link, Waiving Rights Goodbye: Class Action Waivers in Arbitration Agreements AfterStolt-Nielsen v. AnimalFeeds International, 11 Pepp. Disp. Resol. L.J. 275 (2011).
Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal, Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah L. Rev. 1101.
Jim Gash, The End of an Era: The Supreme Court (Finally) Butts out of Punitive Damages for Good, 63 Fla. L. Rev. 525 (2011).
David Horton, Arbitration as Delegation. 86 N.Y.U. L. Rev. 437 (2011).
Aman L. McLeod, Changing the Rule of the Game: Deriving New Rules and Practices fromCaperton v. A.T. Massey Coal Co., 45 New Eng. L. Rev. 569 (2011).
David Marcus, Flawed but Noble: Desegregation Litigation and its Implications for the Modern Class Action, 63 Fla. L. Rev. 657 (2011).
James E. Pfander & Daniel D. Birk, Article III and the Scottish Judiciary, 124 Harv. L. Rev. 1613 (2011).
Martin H. Redish & Colleen McNamara, Back to the Future: Discovery Cost Allocation and Modern Procedural Theory, 79 Geo. Wash. L. Rev. 773 (2011).
J. Douglas Richards & Benjamin D. Brown, Predominance of Common Questions--Common Mistakes in Applying the Class Action Standard, 41 Rutgers L.J. 163 (2009).
Rhonda Wasserman, Transnational Class Actions and Interjurisdictional Preclusion, 86 Notre Dame L. Rev. 313 (2011).
Adam S. Zimmerman & David M. Jaros, The Criminal Class Action, 159 U. Pa. L. Rev. 1385 (2011).
Tuesday, August 9, 2011
Exclusion of evidence containing belated damages estimates upheld as sanction for violation of automatic disclosure obligations
In Dynegy Marketing & Trade v. Multiut Corp., 2011 WL 3347848 (7th Cir. Aug. 4, 2011), plaintiff supplier sued defendants, a distributor and its owner, for unpaid invoices for natural gas. Defendants counterclaimed for breach of an agreement to supply gas at fixed prices, among other claims. After discovery, plaintiff moved for summary judgment. In opposition to the summary judgment motion, defendants submitted the declaration of the owner, which “contained [defendants’] first and only estimates of Multuit’s lost profits and some of its other alleged damages.”
The district court excluded the declaration as a sanction under Rule 37(c) for defendants’ violation of Rule 26(a)(1)(A)(iii) and Rule 26(e), which require parties to disclose and supplement “a computation of each category of damages.” The district court then granted plaintiff’s summary judgment motion.
The Seventh Circuit affirmed:
Multiut and Draiman started off discovery on the right foot by providing Dynegy with rough estimates of the damages associated with their counterclaims in their original disclosures. At that time, they averred, “As a result of Dynegy's breach of an agreement to supply gas at a fixed price, Multiut has sustained damages in an amount that Multiut believes exceeds $6 million. Multiut will supplement with a computation of these damages when they are ascertained through the course of continuing discovery.” They made a similar statement with respect to their breach of confidentiality agreement counterclaim, for which they estimated at least $1 million in damages. But even after Dynegy filed several motions to compel and repeatedly sought (and occasionally obtained) sanctions, Multiut and Draiman failed to disclose how they arrived at those numbers. Even if we fully credit the defendants' contention that the numerical information in Draiman's declaration was duplicative of that already disclosed in spreadsheet form, nothing in the record—not even Draiman's declaration—shines light into the black box of their damages calculation process. A reasonable district court could and did conclude that exclusion of the declaration, which contained the only ballpark estimates of Multiut's lost profits and alleged credits due, was an appropriate sanction for the defendants' continued dilatory and opaque behavior. Without an idea of where the defendants' numbers were coming from, Dynegy was unable to investigate and raise arguments against the claimed damages; the district court did not err in concluding the omissions were not harmless.
--Patricia Hatamyar Moore
The announcement below is a call for papers for a symposium hosted by the Oregon Law Review entitled “Miller’s Courts: Media, Rules, Policy, and the Future of Access to Justice,” to be held on April 13, 2012 at the University of Oregon White Stag Building in Portland, Oregon:
Arthur R. Miller is the archetypal law professor. Whether in the classroom or in the courtroom, Professor Miller is famous for his theatrical style, his quick wit, and his seemingly inexhaustible knowledge of civil procedure and copyright. Professor Miller co-authored Federal Practice and Procedure, the nation’s leading treatise in the field, and he has done extensive work in the areas of class actions, frivolous lawsuits, rulemaking, copyright, and privacy. An early “celebrity” jurist, Professor Miller was the first on-air legal reporter for Good Morning America and also hosted Miller’s Court, the first American television show dedicated to the exploration of legal issues and aimed at the nonlawyer American public. These diverse professional efforts share a common objective: increasing access to justice by empowering individuals in the civil system. Oregon Law Review is currently accepting submissions for the forthcoming Miller Symposium and special issue of our 90th volume. The Miller Symposium will provide a forum for a comprehensive inquiry into questions of access to justice in civil law with special emphasis on the areas within which Professor Miller has worked throughout his career: rulemaking, class actions, media and the law, technology and privacy, legal pedagogy, and procedural policy.
More details available here, and after the jump:
Currently running on the Courts Law section of JOTWELL is my review of a recent article by James E. Pfander (Northwestern), Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court, 159 U. Pa. L. Rev. 493 (2011). The review is entitled A New Solution to an Old Problem: Section 1447(d) and Appellate Review of Remand Orders. It begins:
It may not be the most headline-grabbing issue on the Supreme Court’s docket. But it has occupied more of the Court’s attention during the past half-decade than abortion, affirmative action, the Commerce Clause, or the Second Amendment. It is 28 U.S.C § 1447(d)’s command that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This apparent ban on appellate review has generated an awkward line of cases, beginning with Thermtron Products v. Hermansdorfer in the 1970s, which struggle to determine when § 1447(d) “means what it says.” In the Court’s most recent decisions on the issue, several Justices have penned separate opinions voicing their frustration with current doctrine. Enter Jim Pfander and his recent article Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court. Pfander expertly diagnoses what is wrong with the jurisprudence surrounding § 1447(d) and, more importantly, offers a new solution to this long-standing puzzle.
Monday, August 8, 2011
Professor Marin Levy (Duke University) has posted on SSRN a draft of her article, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, which is forthcoming in the Duke Law Journal. Here’s the abstract:
Case management practices of appellate courts have a significant effect on the outcome of appeals. Decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case management practices of the different circuit courts in the academic literature.
This Article begins to fill that void. It first documents and analyzes the practices of five circuit courts, based on qualitative research in the form of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. A thorough account of case management reveals the great extent to which these practices vary across circuits. The Article considers reasons for the variation, and asks whether such a lack of uniformity is problematic in a federal system. The Article concludes that disuniformity in case management practice is more defensible than in substantive and procedural law, but that current practice can and should be improved through increased transparency and information sharing between the circuits.
Sunday, August 7, 2011
If you like to share recently-filed complaints of interest with your incoming Civil Procedure students, here is one filed July 27, 2011 in the District of Idaho. Environmental groups bring suit against the U.S. Forest Service for failing to prepare a full Environmental Impact Statement before approving a mining exploration project located in the Boise National Forest.
The introductory portion of the complaint reads as follows:
Case 1:11-cv-00341-EJL Document 1 Filed 07/27/11
1. This action challenges the United States Forest Service’s violations of the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”) in approving the CuMo Exploration Project, a mining exploration project located on Grimes Creek in the Boise River watershed, within the Boise National Forest. The Forest Service approved the CuMo Exploration Project through a Decision Notice and Finding of No Significant Impact (“DN/FONSI”) issued by the Boise National Forest Supervisor on February 11, 2011, based on an Environmental Assessment (“EA”) also issued in February 2011.
2. As approved in the DN/FONSI, the CuMo Exploration Project will include extensive road construction and around-the-clock drilling activities over much of the next five years within habitat for sensitive wildlife species, including wolverine, northern goshawk, and great grey owl, as the applicant Mosquito Gold drills hundreds of exploration holes to evaluate whether it can develop the CuMo site into the world’s largest open pit molybdenum mine. Despite the scale and disruptive impacts of the proposed exploration activities, the Forest Service approved the CuMo Project utilizing the EA and FONSI, rather than preparing a full Environmental Impact Statement (“EIS”) as required by NEPA.
3. The Forest Service has not evaluated how sensitive species in the area may be impacted by the road construction and drilling activities, and even approved the project before necessary wildlife surveys were completed. Yet the noise, disturbance, and human presence from the mining exploration may disturb these and other wildlife species, and impair their reproductive success – potential adverse impacts which the Forest Service failed to study, quantify, or fully disclose, in violation of NEPA.
4. The Forest Service also has no idea how groundwater may be impacted by the CuMo exploration drilling, even though the extensive drilling may alter groundwater hydrology and allow groundwater and/or surface water to become contaminated with arsenic and other hazardous substances, again violating NEPA.
5. The CuMo Exploration Project will also degrade riparian habitat along Grimes Creek and tributaries. Contrary to the requirements of the Boise Forest Plan, the Forest Service approved constructing roads, drill pads, settling ponds, and other structures within Riparian Conservation Areas, in violation of the “consistency” requirement of NFMA and implementing regulations.
6. Based on these and other violations of law, Plaintiffs request that the Court reverse and remand the CuMo EA and DN/FONSI, and enter other relief as prayed for below.
(Thanks to Courthouse News Service, Environmental Law Digest)
--Patricia Hatamyar Moore