Wednesday, December 19, 2012
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.
Tuesday, December 18, 2012
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.
Luke Meier has posted Probability, Confidence, and the Constitutionality of Summary Judgment to SSRN.
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.