Thursday, September 27, 2012
Now available from the ABA is a preview by Prof. Jonathan Hafetz (Seton Hall) of Monday’s Supreme Court oral argument in Kiobel v. Royal Dutch Petroleum:
As covered earlier, the Court ordered a new round of briefing and argument to address the following issue: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
Wednesday, September 26, 2012
From Third Branch News:
Congress has passed and the President is expected to sign into law, H.R. 5512, the Divisional Realignment Act of 2012. The legislation, introduced in May, realigns divisions in the U.S. District Courts in the Eastern District of Missouri and the Northern District of Mississippi to allow the courts to better manage cases for the benefit of litigants and jurors. The realignment was proposed by the Judicial Conference of the United States in March 2012.
In the Eastern District of Missouri, the legislation will transfer Iron and Saint Genevieve Counties from the Eastern Division to the Southeastern Division. Court for the Southeastern Division is held at Cape Girardeau. The shift will help equalize the workload of the two divisions, and also decrease travel distances for attorneys and jurors in the affected counties.
In the Northern District of Mississippi, the bill will eliminate the Delta Division by reallocating the eight counties in that division among the district’s three remaining divisions. The Delta Division does not contain a federal courthouse. The changes to both judicial districts will take effect 60 days after enactment of the bill.
The Divisional Realignment Act was introduced in the House by Representative Bennie G. Thompson (D-MS), with co-sponsors Representatives Russ Carnahan (D-MO), Jo Ann Emerson (R-MO), Gregg Harper (R-MS), and Alan Nunnelee (R-MS). A companion bill was introduced in the Senate as S. 3293 by Senator Claire McCaskill (D-MO), with Senators Roy Blunt (R-MO), Thad Cochran (R-MS), and Roger Wicker (R-MS) joining as co-sponsors.
Tuesday, September 25, 2012
When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.
This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as establishing new constitutional restraints on state court exercises of personal jurisdiction, or as resolving previously open questions in favor of a more restrictive approach. These opinions misread the Justices’ opinions in McIntyre. In particular, there has been confusion about Justice Breyer’s concurrence, which explicitly disagreed with Justice Kennedy’s reasoning and was premised on a narrow understanding of the factual record in McIntyre. Many lower court decisions, however, correctly recognize that the fractured McIntyre decision does not mandate new constitutional restrictions on personal jurisdiction.
Here are some of the things lower courts have been up to since McIntyre came down:
(1) addressing the extent to which McIntyre has any binding
holding at all, either via the Marks rule (under which “the holding of the
Court may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds”), or by attempting to aggregate the
views of enough Justices to reach a majority on certain issues;
(2) embracing controversial aspects of Justice Kennedy’s plurality opinion that are in significant tension with earlier Supreme Court majority decisions;
(3) reading McIntyre as calling into question the “reasonableness” prong of the prevailing two-step jurisdictional framework;
(4) assessing McIntyre’s impact on the role that foreseeability plays in determining jurisdiction over defendants whose products reach a state through the “stream of commerce”; and
(5) discussing whether McIntyre has declared a winner in the disagreement between Justice O'Connor and Justice Brennan in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).
Many thanks to everyone at Southwestern for doing such a great job with the symposium. I was glad to be a part of it.
Monday, September 24, 2012
Richard Freer (Emory) has posted The Continuing Gloom About Federal Judicial Rulemaking to SSRN.
In 2013, the Federal Rules of Civil Procedure will be 75 years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in "crisis" and its fans are experiencing "malaise." This paper addresses the reasons for that gloom and concludes that some level of "crisis" is inevitable. At the macro level, judicial rulemaking is a legislative function being performed by an unelected body which is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development.
These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. It has become less an Advisory Committee than a Strunk & White Committee. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee's fault. Like the wayward star, it should change its ways, a process that starts by understanding the burdens and costs imposed by every procedural change.
Herbert M. Kritzer and Robert E. Drechsel have posted on SSRN a paper entitled “Local News of Civil Litigation: All the Litigation News That's Fit to Print or Broadcast,” 96 Judicature, No. 1, pp. 16-22.
What is the nature of the coverage of civil litigation by local newspapers and local television? That is the question considered in this paper. Drawing upon news clips from 2004 (11 media markets around the U.S.), 2006 (9 media markets in the Midwest), and 2007 (9 media markets in the Midwest), we present a portrait of litigation as locally reported. We find (a) torts make up a minority of reports, (b) very few verdicts are reported, and (c) dollar figures are mentioned in a modest proportion of cases but when mentioned tend to be large. We also find significant differences in the reporting practices of local television and local newspapers, particularly with regard to the types of cases discussed (more torts on television and more cases against government in the newspapers). We conclude with some speculations about the implications of our analysis for debates over civil justice “reform.”