April 28, 2012
New Journal: Stanford Journal of Complex Litigation
The editors of the newly minted Stanford Journal of Complex Litigation have asked us to post their launch announcment. We are looking forward to seeing the material that they publish!
We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.
We hope you will consider publishing with SJCL for a few reasons:
· Specialization: SJCL is the first student-edited journal devoted exclusively to topics relating to complex litigation. Publishing with SJCL will ensure your important contribution will be read within the broader field it is engaging. SJCL will serve as a forum for dialogue on complex litigation issues. We also expect that because SJCL is devoted exclusively to complex litigation, it will quickly become a source of guidance for courts and practitioners.
· Expedited publishing: Because we are currently accepting submissions for the first volume of SJCL, we will be able to publish many of the submissions we accept in our fall issue. That means you can expect your article with SJCL to be in print faster than almost any other journal. There will be no need to update through a lengthy editing process.
· Modified peer review: SJCL will follow a modified peer-review system. Meaning, after a first-level review by SJCL’s editorial staff, any submission that is a candidate for publication will be submitted to at least one scholar in the field of complex litigation or civil procedure who will review the piece. We will take any unanimous decision from our peer reviewers as a binding decision on publication. This will ensure that SJCL is publishing significant contributions to this field.
· “Light edit”: Our editorial policy is to afford substantial deference to authors, in both tone and substance. As a result, all articles must be well written, well cited, and completely argued at the time of submissions. SJCL will only edit to ensure readability and Bluebook compliance, which means that the editing process will be faster but also requires that authors vouch for the accuracy of their citations.
· Outreach: We are committed to generating interest in the articles published with SJCL. That is why we will actively promote all scholarship we publish at symposia and on the blogosphere. We are also committing to distributing hundreds of copies of our first issue to grow our readership base.
· Volume 1: There is something to be said for publishing in the very first volume of a journal. We hope you appreciate this significance and decide to submit your manuscript to SJCL.
We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to firstname.lastname@example.org. We do not accept submissions in hard copy.
SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact email@example.com.
A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/.
Please contact us with any questions. We look forward to working with you.
Nick Landsman-Roos & Matt Woleske
Editors-in-Chief, Stanford Journal of Complex Litigation
April 25, 2012
More Civ Pro Video
Now comes a video, courtesy of the 2012 Emory Law Follies, that features civil procedure prof Rich Freer expertly channeling Michael Bolton (and others):
(Hat Tip: Thom Main)
New Consumer Bureau Asks for Input on Arbitrarion Clauses in Consumer Contracts
The National Law Journal reports that the Consumer Financial Protection Bureau, as authorized by the Dodd-Frank Act, is studying pre-dispute arbitration clauses in consumer contracts. In connection with that, the Bureau has published a Request for Information Regarding Scope, Methods, and Data Sources for Confucting Study of Pre-dispute Arbitration Agreements. Comments are due June 23, 2012.
April 24, 2012
SCOTUS Decision in Wood v. Milyard
Today the Supreme Court decided Wood v. Milyard, a case involving the authority of a federal court of appeals to raise sua sponte a limitations defense to a habeas petition. The case builds on the Court’s previous decisions in Granberry v. Greer, 481 U. S. 129 (1987), and Day v. McDonough, 547 U. S. 198 (2006). Justice Ginsburg’s opinion of the Court (joined by Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan) holds: "Consistent with Granberry and Day, we decline to adopt an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense. . . . [C]ourts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative." [Slip Op. at 9].
As for how that authority should be exercised, Justice Ginsburg clarifies that "[a]lthough a court of appeals has discretion to address, sua sponte, the timeliness of a habeas petition, appellate courts should reserve that authority for use in exceptional cases." [Slip Op. at 9]. Applying that idea to the facts of Wood, she writes that "[a] court is not at liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a limitations defense. The Tenth Circuit, we accordingly hold, abused its discretion by resurrecting the limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims." [Slip Op. at 2].
Justice Thomas authors a concurring opinion, joined by Justice Scalia, that would give courts less ability to resurrect a state’s potential defenses to a habeas petition [Concurring Op. at 1, 3 (some citations omitted)]:
"Because I continue to think that Day was wrongly decided and that Granberry is inapposite, I cannot join the Court’s opinion. See Day, 547 U. S., at 212–219 (SCALIA, J., joined by THOMAS and BREYER, JJ., dissenting). As the dissent in Day explained, the Federal Rules of Civil Procedure apply in habeas corpus cases to the extent that they are consistent with the Habeas Corpus Rules, the habeas corpus statute, and the historical practice of habeas proceedings. As relevant here, the Rules of Civil Procedure provide that a defendant forfeits his statute of limitations defense if he fails to raise it in his answer or in an amendment thereto. 547 U. S., at 212 (citing Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully consistent with habeas corpus procedure. . . .
"In light of these considerations, I cannot join the Court’s holding that a court of appeals has discretion to consider sua sponte a forfeited limitations defense."
April 23, 2012
Dodson on Rule 60(b)
Prof. Scott Dodson (William & Mary) has posted on SSRN his essay Rethinking Extraordinary Circumstances, which will appear in the Northwestern University Law Review. Here’s the abstract:
This short Essay seeks to rationalize the “extraordinary circumstances” requirement of Rule 60(b)(6) of the Federal Rules of Civil Procedure. Under the Supreme Court’s Ackermann decision, any extraordinary circumstances justifying relief must not have been caused by the movant’s own litigation conduct. I argue that the Ackermann rule, at its broadest, would be unjust to those litigants most in need of Rule 60(b)(6) relief and would overserve finality interests. A case study of the recent Fourth Circuit case Aikens v. Ingram illustrates these points. I propose, contrary to Aikens, that the Ackermann rule should apply more narrowly: only to a movant who intentionally abandons the litigation.
Chiappinelli on Director Consent After Nicastro
Eric Chiappinelli (Creighton University) has posted The Myth of Director Consent: After Shaffer, Beyond Nicastro to SSRN.
Delaware, the most important state in corporate America, routinely invokes an unconstitutional statute, section 3114, to assert personal jurisdiction over virtually every non-resident director and officer. The Supreme Court’s June 2011 decision in J. McIntyre Machinery, Ltd. v. Nicastro underscores section 3114’s constitutional problems, which were plain in 1977 when Delaware adopted it in the wake of Shaffer v. Heitner.
My article is the first in a generation to challenge section 3114 and the first ever to consider it in light of Nicastro. I expose the Delaware Court of Chancery’s rationalizations upholding the statute and bring to light that court’s failure to conduct the required minimum contacts analysis. The reality is that the Court of Chancery routinely claims personal jurisdiction over virtually everyone sued for breach of duty as a director or officer of a Delaware corporation.
The current fiduciary duty litigation against Berkshire Hathaway head Warren Buffett and David Sokol, his former second-in-command turned antagonist, exemplifies the statute’s continuing harm. None of the defendants and none of the named plaintiffs lives in Delaware. Berkshire Hathaway has no business office, no assets, and no employees there. No relevant events took place in Delaware, nor has any harm been suffered in Delaware. This lack of any connection to Delaware is nearly universal in Delaware corporate litigation. Simply put, no defendant has minimum contacts with Delaware.
Yet Delaware claims that Buffett, Sokol, and every other Berkshire officer and director “impliedly consents” to in personam jurisdiction simply because Berkshire Hathaway is incorporated there. The Supreme Court has rejected jurisdiction by “implied consent” for over 50 years. Sokol vehemently contests that claim and is spending a significant amount of money to litigate jurisdiction.
I propose an amenability statute for officers and directors rooted in their actual consent. This statute is workable and is constitutional under Nicastro. It will help stem the migration of corporate litigation away from Delaware, and will provide a desirable measure of neutrality in Delaware between management and stockholders.