Friday, February 18, 2011
Professor Donald Earl Childress III (Pepperdine) has posted on SSRN a draft of his article When Erie Goes International, which will be published in the Northwestern University Law Review. Here's the abstract:
This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.
It's only marginally about civil procedure, but I am very amused by this whole lawsuit: R. Allen Stanford who is accused of running a "mini-Madoff" Ponzi scheme has filed a $7.2 billion lawsuit against a number of government officials for their behavior in investigating him.
Wondering what they did and why it's worth $7.2 billion? AmLaw Daily reports here.
Monday, February 14, 2011
Carolyn Shapiro (Chicago Kent) and Christopher Schmidt (Chicago Kent) have posted Oral Dissenting on the Supreme Court to SSRN.
In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have different reasons for deciding to announce their opinions, and the reception and potential influence of an oral dissent varies according to the situation. Recent scholarly efforts to identify a set of factors for predicting the likelihood of an oral dissent thus may miss the forest for the trees. The more interesting question, we suggest, is not necessarily why a Justice might decide to announce a dissent, but why certain oral dissents seem to reverberate while others (perhaps most) are ignored and forgotten. We therefore seek to recenter the discussion of oral dissents, moving to an empirical and analytical discussion of the role that oral dissents actually play in the dynamic relationship between the Court and the American people.
Benjamin Ewing and Professor Douglas Kysar (Yale) have posted on SSRN a draft of their article, Climate Change, Courts, and the Common Law. Here’s the abstract:
Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional separation of powers also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertain collective political action when necessary. Though an inversion of the assumed direction of checks and balances, such prods and pleas are not a radical reconfiguration of the basic structure and principles of American government. Rather, they are limited government’s failsafe: a latent capacity inherent to a system of divided authority that does and should activate when the external pressures of a changing world threaten the sustainability of disaggregated governance. By understanding and embracing their role in the shadow logic of prods and pleas, judges and other public officials can protect limited government by, when necessary, counteracting its potential to over-prefer passivity.
Through the case study of climate change nuisance litigation - particularly American Electric Power v. Connecticut, a case pending in the Supreme Court of the United States - we examine how three potential obstacles to merits adjudication - political question doctrine, standing, and preemption - should be evaluated in recognition of the significance of prods and pleas. We conclude that federal and state tort law provide an important defense mechanism that can help limited government sustain itself in the face of climate change and other dramatic twenty-first century threats, where the nature of the threat is, in large part, a function of limited government itself. As a residual locus for the airing of grievances when no other government actor is responsive to societal need, the common law of tort is a - and perhaps the - paradigmatic vehicle for the expression of prods and pleas. Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plea.