June 29, 2012
Call for Papers: Branstetter Litigation and Dispute Resolution at Vanderbilt
VANDERBILT LAW SCHOOL
BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM
2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP CALL FOR PAPERS
Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2013 New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School.
The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. Held annually, the Branstetter New Voices Workshop brings together junior scholar authors, invited senior scholars, and Vanderbilt faculty in the areas of civil justice.
This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. Past participants include Nora Freeman Engstrom (Stanford), Myriam Gilles (Cardozo), Alexandra Lahav (Connecticut), Margaret Lemos (Duke), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Penn).
The New Voices format maximizes collegial interaction and feedback. Paper authors thus do not deliver prepared “presentations” as such. Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.
1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined.
Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.
2. Author qualifications. To be eligible to submit a paper, scholars must currently hold a permanent faculty position. In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2005.
3. Format / Anonymity. Papers may be submitted in either Microsoft Word or Adobe Acrobat format. To maintain the anonymity of the process, please remove any self-identifying information from the submission.
4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2013. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. If you have any questions, please email the chair of the selection committee, Ed Cheng, at firstname.lastname@example.org.
June 28, 2012
No SCOTUS Opinion in Article III Standing Case: First American Financial v. Edwards
With millions tuning in to hear the Supreme Court’s final day of decisions, many were disappointed to hear today’s ruling in…
The writ of certiorari was dismissed as improvidently granted in a one-sentence order.
June 26, 2012
Report on New York State's Commercial Litigation Courts Released
The Chief Judge's Task Force on Commercial Litigation in the 21st Century: Report and Recommendations to the Chief Judge of the State of New York (June 2012) is available on the New York courts web site. The Commercial Division in New York state courts began as a pilot project in 1993 and now is established in eight counties. A Task Force was commissioned to study commercial litigation "to ensure that the New York Judiciary helps our State retain its role as the preeminent financial and commercial center of the world."
The Task Force's recommendations include:
• establishing a new class of Court of Claims judges
• increasing the monetary threshold for actions to be heard in the Commercial Division
• providing Commercial Division Justices with additional law clerks
• rehiring Judicial Hearing Officers
• recruiting seasoned commercial litigation practitioners as Special Masters
• convening an Institute on Complex Commercial Litigation
• earlier assignment of cases
• revised procedures on expert discovery
• limits on privilege logs
• adjustments to e-discovery
• creating a permanent statewide Advisory Council on the Commercial Division.
Effron on J. McIntyre Machinery v. Nicastro
I have posted my latest article, Letting the Perfect Become the Enemy of the Good: The Relatedness Problem in Personal Jurisdiction to SSRN.
The Supreme Court’s recent decision in J. McIntyre Machinery v. Nicastro had the potential to resolve nearly two decades of confusion in personal jurisdiction doctrine. Confronted with the earlier Asahi plurality opinions, which had established competing “stream of commerce” theories, the Court produced a fractured 4-2-3 opinion that resolved little beyond holding that the New Jersey courts could not exercise personal jurisdiction over the defendant in the instant case.
In this Article, I consider one dimension the doctrinal deadlock that the Supreme Court produced in Nicastro: the concept of specific jurisdiction itself. In recent cases, most notably in Nicastro, the Court has become obsessed with the general and abstract contours of the relationship between a defendant and the forum state. However, one of the most important aspects of the distinction between general and specific jurisdiction is the relatedness between the lawsuit and the forum state. In conceptualizing relatedness at the highest level of generality, the Supreme Court has characterized the relatedness problem in a way that is nearly impossible to answer in any concrete case that comes before it. In other words, the Supreme Court has let the perfect become the enemy of the good. Instead of producing a flexible, workable, if not entirely global or perfect rule, the Court has given the lower courts hardly any rule at all.
This Article suggests that in order to break the stream of commerce stalemate, the Supreme Court should refocus specific jurisdiction doctrine so that it produces concrete answers to the two dimensions of the relatedness problem. It further argues that Justice Brennan’s stream of commerce position from Asahi remains the most viable path for specific jurisdiction analysis. The expansive scope of the Brennan position fits well with modern understandings of commerce and the domestic and international sale and distribution of goods. Moreover, in tandem with a robust fairness analysis, the stream of commerce position will allow courts to examine the two dimensions of relatedness in a useful, concrete, and doctrinally consistent manner.
June 25, 2012
SCOTUS Cert. Grants of Interest
Today the Supreme Court granted certiorari in a number of cases. Some of these may be of particular interest:
Comcast Corp. v. Behrend (No. 11-864), with certiorari limited to the following question: Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
Genesis HealthCare Corp. v. Symczyk (No. 11-1059), which presents the question: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.
Another case looks on the surface like it’s about trademark law, but the question presented has a federal courts angle. Already, LLC v. Nike, Inc. (11-982) presents the question: Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.
Reda on the Cost-and-Delay Narrative in Civil Justice Reform
Danya Shocair Reda has posted The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions to SSRN.
For the past three decades, common wisdom in the legal profession has maintained that the cost of trials, and the trial process itself, are too time-consuming and too expensive to maintain. In May 2010, elite lawyers, federal judges, and prominent legal scholars gathered at Duke Law School to discuss these issues and the future of civil process in the federal courts. Most participants agreed that the focus of federal rules reform should be reigning in the high costs and delay of civil litigation. In a world of electronic discovery and electronically stored information, the costs of litigation were undoubtedly skyrocketing. If discovery had always been ripe for abuse, the ubiquity of electronically stored information made it all the more so. Yet empirical data presented at the conference told a different story. The Federal Judicial Center (FJC) reported that in its study of federal cases that had closed in the 2008 calendar year, the median cost of litigation for defendants was $20,000, including attorneys’ fees. For plaintiffs, the median cost was even less, at $15,000, with some reporting costs of less than $1600. Rather than out-of-control discovery costs emerging from the electronic discovery era, the FJC found median discovery costs represented 3.3% of the amount at stake in litigation.
The results were surprising to those in attendance, but they shouldn’t have been. The FJC’s 2009 data were consistent with a line of similar studies conducted every few years and dating back to the late 1960s. Empirical work has simply never provided support for the widespread belief that the system takes too long, costs too much, and is in desperate need of repair. There exists a significant discrepancy between the common sense understanding of the civil justice system, driven by what I call the “cost-and-delay narrative,” and the picture that develops from the empirical studies. This Article seeks to understand the resilience of the cost-and-delay narrative in the face of empirical data that would seem to undermine it. To do so, this Article carefully analyzes the latest data on federal civil process showing that, even with the substantial changes in practice over the last decade, there is remarkable continuity in the findings of empirical studies. Equally consistent, this Article explains, is the cost-and-delay narrative itself, which has thrived for decades. The longevity of the cost-and-delay narrative should raise alarm bells, because it provides support for efforts to foreclose access to civil courts. Building on the work of scholars, including Arthur Miller, who have long sought to bring this discrepancy to light, this Article contextualizes the cost-and-delay narrative, and the reforms for which it is used to advocate, as part of a political struggle over the nature of the regulatory state and the proper role of courts.