August 8, 2012
Hoffman on “Rulemaking in the Age of Twombly and Iqbal”
Lonny Hoffman has just posted on SSRN the above-titled paper.
In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.
Second Circuit Holds Petition to Compel Arbitration Cannot Be Voluntarily Dismissed
From JDSupra, by Katten Muchin Rosenman LLP:
The U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s vacatur of a petitioner’s voluntary notice of dismissal of a petition to compel arbitration. Petitioner and respondent had entered into an arbitration agreement and petitioner had filed a petition to compel arbitration. After some litigation, petitioner filed a notice of voluntary dismissal under the Federal Rules of Civil Procedure. The Second Circuit found that the Federal Rule of Civil Procedure allowing for voluntary dismissal (Rule 41) did not apply to petitions to compel arbitration and that the petitioner lacked the right to voluntarily and unilaterally dismiss the petition for arbitration. Additionally, the Second Circuit found that allowing parties to voluntarily dismiss petitions to compel arbitration would inappropriately expand the voluntary dismissal right, as the Rule allows one party to curtail the other’s right of voluntary dismissal by filing an answer or a motion for summary judgment, but under the Federal Arbitration Act, a respondent’s option is limited: he can file a motion for summary judgment, but not an answer, in response to a motion to compel arbitration.
ISC Holding AG v. Nobel Biocare Finance AG, Nos. 10-4867-cv(L), 11-239-cv(CON) (2d Cir. July 25, 2012).
August 7, 2012
Schwartz Offers "A Dose of Reality for Medical Malpractice Reform" in New Article
Joanna Schwartz has just posted the above-titled article on SSRN.
Every year, medical error kills and injures hundreds of
thousands of people and costs billions of dollars in lost income, lost
household production, disability, and health care expenses. Conventional wisdom
is that malpractice litigation does little to improve patient safety and, in
fact, harms the cause. Lawsuits are believed to offer little useful information
about medical error. But the deeper problem, critics contend, is that the fear
of malpractice liability inhibits the kind of openness and transparency needed
to identify and address the root causes of medical error.
This Article tests the conventional wisdom by examining the
role that medical malpractice lawsuits actually play in hospital patient safety
efforts. I conducted a national survey of health care professionals and
thirty-five in-depth interviews of those responsible for managing risk and
improving patient safety in hospitals across the country. Drawing on this
research, I find reason to believe that malpractice litigation is not
significantly compromising the patient safety movement’s call for transparency.
In fact, the opposite appears to be occurring: the openness promoted by patient
safety advocates is transforming hospitals’ relationship to lawsuits and risk.
Hospitals, once afraid of disclosing and discussing error for fear of
liability, increasingly encourage transparency with patients and medical staff.
Moreover, lawsuits are playing a previously unconsidered role in hospital
patient safety efforts – as a source of valuable data about weaknesses in
hospital policy, practices, staff, and administration. These new and
counterintuitive observations should inform open and pressing questions about
medical malpractice reform and the best ways to improve patient safety.
Talesh on Dispute Resolution Design
Shauhin A. Talesh has posted a paper entitled "How Dispute Resolution Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws" on SSRN.
This study demonstrates how the structure of dispute
resolution shapes the extent to which managerial and business values influence
the meaning and implementation of consumer protection law, and consequently,
the extent to which repeat players are advantaged. My analysis draws from,
links, and contributes to two literatures that examine the relationship between
organizational governance structures and law: neo-institutional studies of law
and organizations and socio-legal studies of repeat players’ advantages in
disputing. Specifically, I compare an instance where powerful state consumer
protection laws are resolved in private dispute resolution forums funded by
automobile manufacturers but operated by independent third-party organizations
(California) with one where consumer disputes are resolved in public
alternative dispute resolution processes run and administered by the state
(Vermont). Through in-depth interviews and an ethnographic study of the
training programs that dispute resolution arbitrators undergo in each state, I
show how different dispute resolution structures operating in California and
Vermont give different meanings to substantially similar lemon laws. Although
my data do not allow me to establish a causal relationship, they strongly
suggest that the form of the dispute resolution structure, and how business and
state actors construct the meaning of lemon laws through these structures, have
critical implications for the effectiveness of consumer protection laws for
August 6, 2012
Judge Sanctions Greenberg Traurig and TD Bank for Discovery Abuses
The ABA Journal online reports:
Saying that a well-known law firm and its client bank had often handled a major case "in an Inspector Clouseau-like fashion,” a federal judge in Miami has sanctioned both for what she called a “pattern of discovery abuses before, during, and after trial.”
U.S. District Judge Marcia Cooke declined, however, to sanction individually any of the lawyers at Greenberg Traurig whose “handling of this case left much to be desired.” That's because she found they didn't act willfully or in bad faith as they helped client TD Bank defend against a civil damages suit brought by some of the investors fleeced by then-attorney Scott Rothstein, reports Bloomberg. Over 200 attorneys worked on the matter at Greenberg Traurig.
Cooke did find that TD Bank, against whom Texas-based Coquina Investors won a $67 million verdict in January for aiding and abetting Rothstein's fraud, "willfully concealed relevant evidence from its trial counsel.”
In addition to requiring both the bank and the law firm to pay the investors' legal fees for pursuing the sanctions motion, the judge also made a finding that TD Bank "had actual knowledge of Rothstein’s fraud.” While the finding was made after the verdict, it would benefit the investors in a potential appeal.
The case is Coquina Investments v. Rothstein, No. 10-60786-Civ-COOKE/BANDSTRA (S. D. Fla. Aug. 3, 2012).