Civil Procedure & Federal Courts Blog

2013 AALS Annual Meeting (New Orleans, January 4-7, 2013)

The 2013 meeting for the Association of American Law Schools is a couple of weeks away. A link to the complete program is here. For those of you who are venturing to New Orleans, below are some events that may be of interest. The panel on the 75th Anniversary of the Federal Rules of Civil Procedure - which includes Justice Scalia - is a particular must-see.

Saturday, January 5, 10:30 AM. The Class Action Fairness Act of 2005: Perspectives and Predictions

Section on Litigation, Co-Sponsored by Sections on Civil Procedure and Federal Courts; Magnolia, Third Floor, Hilton New Orleans Riverside

Moderator: Kenneth Kandaras, The John Marshall Law School

Speakers:

• John Beisner, Partner, Skadden, Arps, Slate, Meagher, & Flom LLP, Washington, DC
• Elizabeth J. Cabraser, Partner, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA
• Richard L. Marcus, University of California, Hastings College of the Law
• Linda S. Mullenix, The University of Texas School of Law
• Adam N. Steinman, Seton Hall University School of Law
• Jay Tidmarsh, Notre Dame Law School
• Georgene M. Vairo, Loyola Law School

Saturday, January 5, 12:00 noon: Section on Civil Procedure Luncheon

Napoleon Ballroom, Third Floor, Hilton New Orleans Riverside

Speaker: The Honorable Anthony J. Scirica, Judge, United States Court of Appeals for the Third Circuit, Philadelphia, PA

Saturday, January 5, 1:30 PM. 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead

Section on Civil Procedure; Versailles Ballroom, Third Floor, Hilton New Orleans Riverside

Moderator: Arthur R. Miller, New York University School of Law

Speakers:

• Jack Balagia, General Counsel, ExxonMobil Corporation, Irving, CA
• John Beisner, Partner, Skadden, Arps, Slate, Meagher, & Flom LLP, Washington, D.C .
• Stephen B. Burbank, University of Pennsylvania Law School
• Elizabeth J. Cabraser, Partner, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA
• The Honorable Patrick E. Higginbotham, Judge, U.S. Court of Appeals for the Fifth Circuit, Austin, TX
• Mary Kay Kane, University of California, Hastings College of the Law
• Emery G. Lee, III, Senior Researcher, Federal Judicial Center, Washington, D.C.
• Alan B. Morrison, The George Washington University Law School
• The Honorable Lee H. Rosenthal, Judge, Federal Judicial Center, Houston, TX
• The Honorable Antonin Scalia, Associate Justice, United States Supreme Court, Washington, D.C.
• Matthew Wiener, Special Counsel, Cueno Gilbert & LaDuca, LLP, Washington, D.C.

Sunday, January 6, 7:00 AM. Section on Federal Courts Breakfast

Grand Salon Section 7, First Floor, Hilton New Orleans Riverside

Sunday, January 6, 8:30 AM. Non-Article III Courts: Problems of Principle and Practice

Section on Federal Courts; Belle Chasse, Third Floor, Hilton New Orleans Riverside

Moderator: Johanna Kalb, Loyola University New Orleans College of Law

Speakers:

• Erwin Chemerinsky, University of California, Irvine, School of Law
• Thomas H. Lee, Fordham University School of Law
• Troy A. McKenzie, New York University School of Law
• Stephen I. Vladeck, American University, Washington College of Law

Sunday, January 6, 4:00 PM. In Memoriam: Choice of Law Methodology and the Work of Larry Ribstein

Section on Conflict of Laws; Jasperwood, Third Floor, Hilton New Orleans Riverside

Moderator: Erin A. O’Hara O’Connor, Vanderbilt University Law School

Speakers:

• Wulf Kaal, University of St. Thomas School of Law
• Michael E. Solimine, University of Cincinnati College of Law
• Tobias Barrington Wolff, University of Pennsylvania Law School

--A

Freer on Class Actions at the Supreme Court

Professor Richard Freer (Emory) has posted on SSRN a draft of his article, The Supreme Court and the Class Action: Where We Are and Where We Might Be Going. Here's the abstract:

In 2010 and 2011, the Supreme Court decided five class action cases. In 2012, it has agreed to hear four more. This piece summarizes what the Court has done and where it appears to be going concerning aggregate litigation. The goal of this piece is more practical than theoretical: to place all nine cases in context and draw preliminary conclusions about the impact these cases have had and will have -- not only on class action practice, but in other areas, including the Erie Doctrine, waivers of class arbitration, anti-suit injunctions, the binding effect of judgments on class members, enforcement of Rule 10b-5, and the apparent efforts of defendants to front-load litigation by demanding greater consideration of merits-based facts (and qualification of experts) at the class certification stage.

The cases dealing with waivers of class arbitration implicate the role of the civil suit in law enforcement. If small (usually consumer) claims cannot be pursued on an aggregate basis, they may never be vindicated; individuals and lawyers will not find it economically feasible to do so. Yet the Court appears unwilling to recognize a public-policy exception to the primacy of contract. Thus, if the underlying contract waives aggregate litigation or arbitration, apparently this will not be trumped by the concern that the relevant law (often consumer protection laws) will not be enforced through civil litigation.

--A

Meier on Summary Judgment

Luke Meier has posted Probability, Confidence, and the Constitutionality of Summary Judgment to SSRN.

Abstract:     
Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the issue was resolved by the Supreme Court in Fidelity & Deposit Co. v. United States. This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court caselaw. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise; contrary to popular believe, the Supreme Court has not addressed these Seventh Amendment concerns.

RJE