Friday, October 28, 2011
Lorne Sossin (York University - Osgoode Hall Law School) has posted Revisiting Class Actions Against the Crown: Balancing Public and Private Legal Accountability for Government Action to SSRN.
Five years ago, I began to notice a trend toward more numerous and wide ranging class actions against the Crown, seeking redress for state action against those claiming they were especially harmed by that action. Some of these class actions – for example, seeking remedies for the Crown’s role in the SARS or Mad Cow outbreaks – sought billions of dollars of damages. Many of these class actions, in my view, involved the review of ministerial decision-making and could have been framed as judicial reviews in the conventional administrative law sense. Was the incentive for mass recovery and soaring contingency fees driving more lawyers to frame unfair or unreasonable government decisions as violating tort and contract standards? Was I witnessing another dimension of access to justice and progressive behaviour modification through class actions, or alternatively, did this trend represent a distortion of public accountability through private claims?
Wednesday, October 26, 2011
People for the Ethical Treatment of Animals (PETA) is reportedly filing a lawsuit today in federal district court in San Diego against SeaWorld, seeking a declaration that the five killer whales that perform at SeaWorld's San Diego and Orlando parks are being held as slaves in violation of the Thirteenth Amendment to the United States Constitution.
The five plaintiffs are anticipated to be Corky, Kasatka, Ulises, Tilikum, and Katina.
For further details see the story at Signonsandiego.com here.
Conference at New York Law School on Summary Judgment, Iqbal, and Employment Discrimination on April 23, 2012
New York Law School Law Review has announced the following symposium:
The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) are pleased to present Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination, a symposium that will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases and explore potential strategies to reverse this growing trend.
The reality today is that motions for dismissal and for summary judgment are filed in nearly every case. Originally conceived as an efficient means to help plaintiffs in debt collection cases, Federal Rule of Civil Procedure 56 allowed judges to resolve quickly claims where material facts were not genuinely in dispute and the defendant could not mount a defense. Today, the drafters of Rule 56 would not recognize its expanded application, particularly in employment cases.
Encouraging this movement towards pre-trial adjudication of employment discrimination cases are the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, through which the Supreme Court appeared to raise the quantum of facts that a plaintiff must plead to avoid successfully a motion to dismiss. As summary judgment is the accepted mechanism for evaluating the factual sufficiency of complaints, these rulings raise interesting questions as to whether the Court has blurred the line between motions to dismiss and motions for summary judgment.
The increasing prevalence of pre- and post-trial dispositive motions has had a demonstrably unique effect in cases alleging violations of employment discrimination laws. A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable JNOV motions after trial.
Papers will be published in a forthcoming issue of the New York Law School Law Review.
For further information, click here.
Tuesday, October 25, 2011
Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation (University of Richmond, Nov. 11)
The announcement below is for the University of Richmond Law Review’s Fall 2011 Allen Chair Symposium:
Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation
November 11, 2011
Ukrop Auditorium, Robins School of Business (Queally Hall)
School of Law Moot Court Room
Each year, the Allen Chair Symposium explores a single topic of national interest. This year, working in collaboration with Professors Carl Tobias and Kevin Walsh, the University of Richmond Law Review presents the 2011 Allen Chair Symposium entitled “Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation.” This year’s symposium focuses on the procedural and litigation issues that have permeated numerous challenges to the 2010 Patient Protection and Affordable Care Act. While much of the attention has focused on the constitutionality of the legislation, lawyers litigating these cases had to address critical issues involving the role of states as litigants, the distinction between facial and applied challenges, severability, and other issues. The symposium will bring lawyers and scholars together in order to explore these all too important procedural issues; so join us and be part of this important discussion!
If you are unable to attend the symposium in person, please feel free to participate via the live webcast. Information for the live webcast will be available on November 11, 2011 at 7:30 A.M. E.S.T..
Conference brochure available here.