Wednesday, May 30, 2012

Symposium on the Supreme Court's 2011 Personal Jurisdiction Decisions: McIntyre and Goodyear

The South Carolina Law Review’s symposium issue, “Personal Jurisdiction for the Twenty-First Century: The Implications of McIntyre and Goodyear Dunlop Tires,” is now available online:

Keynote Address

Arthur R. Miller, McIntyre in Context: A Very Personal Perspective


Adam N. Steinman, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro

John Vail, Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro

Allan R. Stein, The Meaning of "Essentially at Home" in Goodyear Dunlop

Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan

Linda J. Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

Lea Brilmayer & Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and J. McIntyre Machinery v. Nicastro

Paul D. Carrington, Business Interests and the Long Arm in 2011

Rodger D. Citron, The Case of the Retired Justice: How Would Justice John Paul Stevens Have Voted in J. McIntyre Machinery, Ltd. v. Nicastro?

Meir Feder, Goodyear, "Home," and the Uncertain Future of Doing Business Jurisdiction

Collyn A. Peddie, Mi Casa Es Su Casa: Enterprise Theory and General Jurisdiction over Foreign Corporations After Goodyear Dunlop Tires Operations, S.A. v. Brown

Wendy Collins Perdue, What's "Sovereignty" Got to Do with It? Due Process, Personal Jurisdiction, and the Supreme Court

Howard B. Stravitz, Sayonara to Fair Play and Substantial Justice?


May 30, 2012 in Conferences/Symposia, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Court Grants Cert in Fair Debt Collection Case, Denies Cert on Remittitur Issue

From The Supreme Court Insider:

[On] Tuesday, the justices granted review in a case involving the Fair Debt Collections Practices Act — Marx v. General Revenue Corp. The Court will decide whether a prevailing defendant in a lawsuit under that law may be awarded costs when the lawsuit was not brought in bad faith or for the purpose of harassment.

From the ABA Journal online:

The U.S. Supreme Court won’t hear the case of Joel Tenenbaum, a doctoral graduate who was originally ordered to pay $675,000 for downloading copyrighted music.

The trial judge had found the verdict was constitutionally excessive and reduced the amount to $67,500. On appeal the Boston-based 1st U.S. Circuit Court of Appeals ruled the judge should have avoided the constitutional question through remittitur. The court reinstated the $675,000 award, but ordered the trial judge to consider remittitur.

A Supreme Court petition filed by Harvard University law professor Charles Nesson had objected to the remittitur procedure because it allows the plaintiffs to reject the reduced award and opt for a retrial. “The 1st Circuit’s misuse of remittitur threatens to push the defendant down an endless litigation rathole,” Nesson argues. The prospect of a “retrial merry-go-round” forces defendants to settle, avoiding the constitutional issues, he wrote.

SCOTUSblog and Wired’s Threat Level blog reported on the cert denial.


May 30, 2012 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 29, 2012

2013 AALS Section on Litigation - Call for Papers

From the Civil Procedure Profs listserv:

Dear AALS Litigation Section Members:

I am writing as Chair
of the AALS Section on Litigation to inform you of the Call for Papers
associated with the Section's Program at the 2013 Annual Meeting scheduled for
January 4-7, in New Orleans, Louisiana. The Program is titled "The Class Action
Fairness Act of 2005: Perspectives and Predictions". A pdf version of the Call
for Papers is attached and the text of the Call appears below for your

The author of the selected paper will be invited to join a
panel that includes: John Beisner (Skadden Arps), Elizabeth Cabraser (Lieff,
Cabraser, Heimann & Bernstein), Richard Marcus (UC Hastings), Linda Mullenix
(U. of Texas), Jay Tidmarsh (Notre Dame) and Georgene Vairo (Loyola of

My best,

Kenneth Kandaras
Professor of Law
Marshall Law School
315 South Plymouth Court
Chicago, IL.

Call for Papers

Section on Litigation
AALS Annual Meeting, January 4-7, 2013, New
“The Class Action Fairness Act of 2005: Perspectives and

In connection with the January 2013 Annual Meeting of
the Association of American Law Schools in New Orleans, Louisiana, the Section
on Litigation will be sponsoring a panel discussion entitled: “The Class Action
Fairness Act of 2005: Perspectives and Predictions”. The Sections on Civil
Procedure and Federal Courts are co-sponsoring the program.

Upon its
enactment, CAFA’s supporters hailed the statute as a needed remedy to combat
abusive state court class action proceedings as well as an important means to
achieve tort reform. With several years-on since CAFA’s enactment, the panel
will explore some of the significant issues that CAFA poses for litigants and
the legal community as a whole. The panelists include:John Beisner (Skadden
Arps), Elizabeth Cabraser (Lieff, Cabraser, Heimann & Bernstein), Richard
Marcus (UC Hastings), Linda Mullenix (U. of Texas), JayTidmarsh (Notre Dame),
and Georgene Vairo (Loyola of LA).

The Program will include a speaker
selected from this Call for Papers.

Eligible papers may address any topic
related to CAFA, including topics that consider its effectiveness in achieving
its stated aims, its influence on litigation strategies, and its impact on the
legal community and society as a whole. Both essay and article length papers are
welcome. The selected author will be invited to participate in the Program, at
the expense of the author’s institution. The Review of Litigation at the
University of Texas has agreed to publish the paper of the selected author and
other articles submitted by program panel members (subject to the Review’s final
approval of the articles) in its Symposium issue. The Review is well-known for
its publication of scholarship related to litigation, civil procedure and
dispute resolution.

The deadline to submit a draft paper is Thursday,
September 6, 2012. Please submit the draft paper to Professor Kenneth Kandaras,
Chair of the Section of Litigation, as an attachment to an e-mail sent to
Professor Kandaras at The attachment should be in Word or PDF
format. Late submissions will not be accepted. A subcommittee of the Section’s
Executive Committee will review the submissions. Decisions will be communicated
no later than October 1,

Section_Call for Papers 2013.pdf (42 k):

post online:


May 29, 2012 in Class Actions, Conferences/Symposia | Permalink | Comments (0)

D.C. Circuit Holds No Personal Jurisdiction Over the Port Authority of Liberia

Plaintiff, a construction company incorporated in the British Virgin Islands and headquartered in Israel, and defendant, the National Port Authority of Liberia, entered into a contract to build and operate a container park in Monrovia, Liberia's capital. Shortly thereafter, however, the government of Liberia changed, and the new government repudiated the contract for alleged failure to comply with competitive bidding procedures. Plaintiff initiated an arbitration proceeding in London, and the arbitrator awarded over $44,000,000 in damages to plaintiff. Plaintiff then filed an action to confirm the arbitration award against defendant in the D.C. district court. The district court dismissed the action for lack of personal jurisdiction.

On appeal, the D.C. Circuit held that the Foreign Sovereign Immunities Act provided statutory personal jurisdiction over the Port Authority, but that the Fifth Amendment Due Process Clause also required constitutional personal jurisdiction. The Port Authority, although state-owned, established its juridical separateness from the government of Liberia, which, as a foreign state, was not a "person" protected by the Fifth Amendment. Because the plaintiff failed to show minimum contacts of the Port Authority with the United States, the court affirmed the district court's dismissal for lack of personal jurisdiction. GSS Group Ltd. v. National Port Authority, No. 11-7093 (D.C. Cir. May 25, 2012).


May 29, 2012 in Federal Courts, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Malveaux on Sullivan on Iqbal and Employment Discrimination

Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.


May 29, 2012 in Recent Scholarship, Twombly/Iqbal, Weblogs | Permalink | Comments (0)