Wednesday, March 6, 2013
Professor Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, Federal Question Jurisdiction: The Compass, the Maze and the Trap. Here’s the abstract:
On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.
The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result.
Perhaps I should have titled this post "Lifetime Employment for Civil Procedure Professors Announced."
The National Conference of Bar Examiners has announced that Civil Procedure will be included as the seventh topic tested on the Multistate Bar Examination effective with the February 2015 administration.
With the addition of Civil Procedure, the MBE will continue to have 200 questions, 190 of which are scored (10 are unscored pretest items). The difference will be that there will be 28 Contracts items, and 27 items each for the remaining six topics (Civ Pro, Con Law, Crim Law and Pro, Evidence, Real Property, and Torts), for a total of 190 tested questions.
As of July 2013, every state except Louisiana will administer the MBE.
The "test specifications" (I assume this means the subjects possibly tested by) MBE Civil Procedure items will be announced no later than June 30, 2013.
Tuesday, March 5, 2013
David Marcus (University of Arizona) has posted The History of the Modern Class Action, Part I: Sturm und Drang, 1953-1980 on SSRN.
The U.S. Supreme Court’s recent and intensive engagement with class action doctrine has changed the device for claim aggregation significantly. The first era in the history of the modern class action, which began with the revision of Rule 23 in the 1950s and 1960s, may be ending. If so, the class action’s remarkable story deserves telling. This Article provides the first chapter, explaining how class action doctrine coalesced just moments before the great social and political strife of the 1960s, provoked a heated political war within a couple of years of its emergence, and finally stabilized by the end of the 1970s.
After telling the story of the revised Rule 23’s origins, I describe the emergence of the fiery class action politics of the late 1960s and early 1970s. Combatants clashed over two competing conceptions of the new device. Advocates for plaintiffs’ interests championed a “regulatory conception” of Rule 23: Courts and lawmakers, they insisted, should treat the class action as a mechanism designed to boost the regulatory force of the substantive law. Decision-makers should apply Rule 23 flexibly, to recognize that the class action played a key role in new regulatory strategies pursued in the 1970s. Corporate interests and their allies countered with an “adjectival conception” of the class action, or an understanding of the device that conceived of it as a joinder rule like any other. They argued that courts should limit the class action strictly, lest a mere procedural rule significantly distort the role that civil litigation properly played in American government.
The clash between these conceptions of Rule 23 offers a way to understand doctrinal evolution during the first chapter of the device’s modern history. Congress and federal rulemakers were unable to resolve the conflict between the regulatory and adjectival conceptions. The federal courts, however, did so successfully. Using a pragmatic balancing strategy in each substantive area affected by class actions, the federal courts preserved Rule 23’s regulatory force while insisting that class litigation not deviate too far from more traditional models of civil adjudication. This strategy stabilized class action doctrine by the end of the 1970s, laying a foundation for far more adventurous uses of the device in the 1980s and 1990s.
Monday, March 4, 2013
1. Whether due process permits a court to exercise personal jurisdiction over a defendant whose sole “contact” with the forum State is his knowledge that the plaintiff has connections to that State.
2. Whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue under 28 U.S.C. § 1391(b)(2) even if the defendant’s alleged acts and omissions all occurred in another district.
You can find a link to the 9th Circuit’s opinion below and other information about the case at SCOTUSblog’s casefile.
Here’s a story on the case from the AP.
Here are links to some recent coverage of last week’s Supreme Court decision in Clapper v. Amnesty International, which rejected a challenge to federal wiretapping procedures for lack of Article III standing: