Thursday, September 15, 2011
Professors Erin O'Hara O'Connor (Vanderbilt) and Larry Ribstein (Illinois) have posted on SSRN a draft of their article Preemption and Choice-of-Law Coordination. Here’s the abstract:
The scope of federal preemption of state law has been plagued by uncertainty and confusion. The courts have applied a set of presumptions on an ad hoc and conflicting basis. Part of the problem is that the courts purport to be interpreting legislative intent while actually making unarticulated substantive policy judgments about the outcome of specific cases. This approach frustrates development of coherent preemption doctrine. Courts should consider a conceptually obvious but as yet unexplored factor in their decisions. Specifically, where Congressional intent is unclear, preemption determinations should consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such "horizontal coordination," Congress often has little need to usurp the states' role as laboratories for experimenting with potentially diverse substantive laws. Our novel approach preserves both the benefits of local and state sovereignty and Congress's role of coordinating US laws where necessary. It also provides a coherent policy for guiding preemption decisions where Congressional intent is unclear.
(Hat Tip: Larry Solum)
Today's New York Times investigates the changes the Wal-Mart has said that they are making to create a better work environment for women. An interesting public relations response to the dialogue about women's role in large retail operations that has occured since the Supreme Court handed down Wal-Mart v. Dukes.
Wednesday, September 14, 2011
Tuesday, September 13, 2011
Florida International University College of Law is hosting the Fourth Annual Junior Faculty Federal Courts Workshop in Miami on February 2 - 4, 2012. From the announcement:
The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this year: Susan Bandes (University of Miami), Lee Epstein (USC), Theodore Eisenberg (Cornell University), Martin Redish (Northwestern University), and Suzanna Sherry (Vanderbilt University). . . .
The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, and associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2012 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee. . . .
Those wishing to present a paper must submit an Abstract by November 15. Papers will be selected by a committee of past participants; presenters will be notified by December 10. Those planning to attend must register by January 10, 2012. The program is also open to non-presenters who want to attend, read and comment on papers, and participate in the discussion.
More details available at PrawfsBlawg.
(Hat Tip: Howard Wasserman)
Some of you might have been following the orders of Judge Sam Sparks in Texas recently. His orders, chastising parties for their behavior, have made several national blogs, including an order in which he accused the lawyers of acting like a "kindergarten party."
Now Judge Sparks is under the microscope for his own behavior in these matters. Edith Jones, Chief Judge of the Fifth Circuit sent him an email with the following reprimand: "Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel."
More coverage (and the full text of the email) at The Texas Lawyer.
Monday, September 12, 2011
Personal jurisdiction (for defendants without the state, at least) requires minimum contacts and a judicial assessment that the assertion of personal jurisdiction be reasonable. The absence of the latter is the thing upon which Asahi was resolved; it was unreasonable to hale Asahi into California state court.
Yet, in the recent Nicastro case, as Howard Wasserman pointed out, neither Justice Kennedy (writing for the plurality) nor Justice Breyer (writing a concurrence with Justice Alito) mentioned the reasonableness prong of the modern PJ test. And that's a bit puzzling, because both cited hypos (if memory serves -- Florida farmers, Appalachian potters, Kenyan coffee makers) where the reasonableness part of the PJ test would have been very relevant in determining PJ. Speculations as to why reasonableness went unmentioned by Kennedy and Breyer?