Thursday, April 12, 2012
Well, that was quick. Days after we reported that some objectors to the settlement (earlier approved en banc by the Third Circuit) had petitioned for certiorari, the Supreme Court denied the petition. Murphy v. Sullivan, 2012 WL 779996 (U.S. Apr 02, 2012) (NO. 11-1111).
Over at Prawfsblawg, Howard Wasserman has a call for information about content for an advanced civil procedure course. From the post:
When Civ Pro profs get together to talk shop, conversation inevitably turns to the pedagogical horror of the four-hour basic course (as opposed to the old six or seven hours). A related question is whether to offer a three-hour upper-level elective (whether called "Civ Pro II" or "Advanced Civ Pro" or "Complex Lit" or whatever) to fill-in the gaps and what to include in that class.
So a question for the Civ Pro types: What do/should/would you put in that course? And how would that affect what you include in the basic course. Does it still cover the basics (Pleading, basic joinder, discovery, summary judgment, PJ, SMJ, Venue, Erie)? Or do you move some stuff around? Does it depend on what sort of enrollment you expect to get?
Anyone with good ideas or information should leave comments on the Prawfs post or email Howard directly (firstname.lastname@example.org).
Wednesday, April 11, 2012
Ed Cheng (Vanderbilt University) has posted When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling to SSRN.
In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.
Tuesday, April 10, 2012
On April 26 to 27, 2012, DePaul University College of Law in Chicago will hold its annual Clifford Symposium on Tort Law and Social Policy. Further information is available here.
Sessions include The Impact of Institutional Arrangements on the Delivery of Justice, Access to Justice, The Changing Organization and Structure of the Bar, Vanishing Trials, and The Impact of Rhetoric and Perception on the Civil Justice System. Presenters include honoree Marc Galanter, Tom Baker, Michelle Goodwin, Shauhin Talesh, Robert Gordon, Herbert Kritzer, Gowri Ramachandran, Eric Feldman, Brian Tamanaha, Paul Carrington, Sida Liu, Ann Southworth, Richard Abel, John Miexner, Shari Diamond, Ted Eisenberg, Anne Bloom, David Engel, Lawrence Friedman, and Valerie Hans.
Monday, April 9, 2012
Michael Helfand (Pepperdine University) has posted Purpose, Precedent, and Politics: Why Concepcion Covers Less Than You Think to SSRN.
This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to render them invalid. Second, Justice Thomas’s concurrence may limit the precedential value of Concepcion by narrowing the Court’s holding to cases where the defense speaks to the revocation of an otherwise valid agreement as opposed to where the defense speaks to a failure of the agreement’s formation. Third, state courts may demonstrate increasing willingness to chip away at Concepcion by narrowly construing its holding. Such a willingness may flow from a recognition that Concepcion’s five-justice majority is deeply divided on the applicability of the Federal Arbitration Act to state courts, making it unlikely that the Court would ever reverse state court decisions that employed aggressive use of state laws to invalidate an arbitration agreement.