Friday, May 4, 2012

A Bond Sequel?

No, this post isn’t about Daniel Craig dusting off his tuxedo (although apparently another installment of that Bond series is scheduled for a November 2012 release). This is a follow up to last June’s Supreme Court decision in Bond v. United States, 131 S. Ct. 2355 (2011), covered earlier here, here, and here.

The facts of the case are intriguing. See, e.g., 131 S. Ct. at 2360 (“After discovering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge.”). The Supreme Court held that Bond had standing to challenge her conviction under 18 U.S.C. § 229, a statute implementing the 1993 Chemical Weapons Convention, as exceeding Congress’s power and violating the Tenth Amendment. So the case went back to the Third Circuit to consider the merits of her constitutional challenge, which is interesting in its own right. Yesterday, the Third Circuit issued its decision on remand. From the introduction to Judge Jordan's opinion of the court:

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond’s conviction.

Judge Jordan notes that “[t]he decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.” But he concludes: “In short, because the Convention pertains to the proliferation and use of chemical weapons, which are matters plainly relating to war and peace, we think it clear that the Convention falls within the Treaty Power’s core. Consequently, we cannot say that the Act disrupts the balance of power between the federal government and the states, regardless of how it has been applied here.”

The other two judges on the panel each write separate concurring opinions. Judge Rendell writes to “consider two questions raised by her argument: What is legally wrong with the Act, which reaches Ms. Bond’s conduct?; and, What is wrong with the Act’s application to Ms. Bond, given the structure of federal-state relations? The answer to both is: Nothing.”

And from Judge Ambro's concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” 252 U.S. 416, 432 (1920). . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.


(Hat Tip: Howard Bashman)

May 4, 2012 in Recent Decisions | Permalink | Comments (0)

Preliminary Approval Granted for Deepwater Horizon Settlement

The story is reported by the National Law Journal here.  The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.

Class members have until August 31 to object and until October 1 to opt out.  The final fairness hearing is set for November 8.


May 4, 2012 in Class Actions, Current Affairs, In the News, Mass Torts, MDLs | Permalink | Comments (0)

Thursday, May 3, 2012

5th Annual Junior Faculty Federal Courts Workshop

William and Mary Law School will host the Fifth Annual Junior Faculty Federal Courts Workshop on October 25-27, 2012.

The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this fall: Curtis Bradley (Duke), John Jeffries (Virginia), Trevor Morrison (Columbia), Linda Mullenix (Texas), and James Pfander (Northwestern). 

The conference will begin with a dinner on Thursday, October 25.  We will then have panels all day Friday, followed by a dinner Friday evening.  If we need more time, we will hold one or two additional panels on Saturday morning.  Each panel will consist of a few junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.

 The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Procedure, Civil Rights, and associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2013 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. 

William and Mary will cover all meals for those attending the workshop, including the welcome dinner on Thursday and the dinner on Friday. The law school has arranged for a discounted block of rooms at the Fairfield Inn in Williamsburg, as well as transportation to the law school.

Those wishing to present a paper must submit an abstract by Monday, June 18. Papers will be selected by a committee of past participants; presenters will be notified by Monday, July 9. Anyone wishing to submit may send an abstract to Tara Grove at



May 3, 2012 in Conferences/Symposia | Permalink | Comments (0)

Wednesday, May 2, 2012

Lynch on Discovery Stays

Prof. Kevin Lynch (Denver) has posted on SSRN his article, When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending, which appears in the Wake Forest Law Review. Here’s the abstract:

Discovery plays a central role in our judicial system, and while discovery provides many benefits to the parties and to the courts, it also imposes burdens and costs. Discovery reduces informational asymmetries, clarifies claims and defenses for trial, and encourages settlement. But it costs money to take depositions of witnesses, produce documentary evidence, and pay for the time of experts and lawyers. When a motion to dismiss is filed, the possibility that discovery will not be necessary presents a risk of wasted resources if discovery is not stayed while the motion to dismiss is resolved. However if discovery is stayed and the motion to dismiss is ultimately denied, even in part, then the entire case was delayed unnecessarily. Delay also presents a risk of deterioration of evidence as documents are lost, memories fade, or witnesses become unavailable. These are the considerations that judges must weigh against one another when deciding a motion to stay discovery due to a pending motion to dismiss.

Despite the importance of judicial decisions regarding discovery stays, this issue has received hardly any attention from legal scholars. This may be due to the relative scarcity of appellate decisions laying out standards for deciding motions to stay discovery, or it may be due to the difficulties in gathering reliable data on the discovery process. This Article fills this gap by examining what judges are doing currently on motions to stay discovery and recommending prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure. Relying on extensive research into federal court cases discussing discovery stays, the Article identifies eight primary considerations that affect discovery stays and provides guidance to judges regarding the appropriate standard to apply based on the characteristics of individual cases, focusing on the benefits of efficiency and transparency.

The Article proceeds in five parts. Part I lays out the issue of discovery stays when a motion to dismiss is pending. Part II provides background on the costs and burdens of discovery, the various interests at stake, and the judicial role overseeing discovery. Part III presents the current state of the law by looking at the various standards that courts have explicitly applied when deciding motions to stay discovery. Part IV develops a framework for understanding and reconciling existing precedent on discovery stays with reference to eight primary considerations. Part IV also lays out a prescription for judges to use in exercising their discretion in this context. Part V examines the broader issue of “discovery abuse” and specific cases where discovery is automatically stayed while also noting areas for further inquiry into this issue.


May 2, 2012 in Discovery, Recent Scholarship | Permalink | Comments (0)

Tuesday, May 1, 2012

Campos on Brown on Specious Claims & Global Settlements

Now available on the Courts Law section of JOTWELL is an essay by Prof. Sergio Campos (Miami) entitled Striking Out Specious Claims in Mass Tort Global Settlements. It reviews a forthcoming article by Prof. S. Todd Brown (SUNY Buffalo), Specious Claims and Global Settlements.

The review begins:

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.”  In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.”  The opposite is true in mass tort litigation.  In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims.  It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.  In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem.


May 1, 2012 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)