Friday, November 30, 2012
Professors Samuel Issacharoff & Geoffrey Miller (NYU) have posted on SSRN a draft of their article, An Information-Forcing Approach to the Motion to Dismiss. Here’s the abstract:
This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.
Tuesday, November 27, 2012
Yesterday the Supreme Court issued a five-page per curiam opinion in Nitro-Lift Technologies L.L.C. v. Howard, granting certiorari and reversing the Oklahoma Supreme Court based on the Federal Arbitration Act. It begins:
State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., including the Act’s national policy favoring arbitration. It is a matter of great importance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Oklahoma Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contracts null and void, rather than leaving that determination to the arbitrator in the first instance, the state court ignored a basic tenet of the Act’s substantive arbitration law. The decision must be vacated.
Monday, November 26, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Jim Pfander (Northwestern) entitled Why Judges Leave the Bench. It reviews Stephen Burbank, S. Jay Plager, and Greg Ablavsky's recent article, Leaving the Bench. Jim's essay begins:
Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes. A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea. In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary. In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges. In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.--A
Professor Luke Meier of Baylor University has posted on SSRN his new article, "Probability, Confidence, and the 'Reasonable Jury' Standard."
The modern summary judgment standard requires that a judge consider how a "reasonable jury" would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the "reasonable jury" standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's "blue bus" hypothetical. In addition, this article demonstrates how the "reasonable jury" standard makes it difficult to identify the confidence concept as a component of federal procedure.