Friday, April 12, 2013
Professor Richard Epstein (NYU) has a post on PointofLaw.com entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:
The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.
James Grimmelman (New York Law School) has posted Future Conduct and the Limits of Class-Action Settlements to SSRN.
This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.
Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.
Thursday, April 11, 2013
Donald Cochan (Chapman University) has posted While Effusive, “Conclusory” is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance to SSRN.
This Article is a short story about the word “conclusory.” The word is effusive in legal discourse, yet it has been largely elusive to the editors and drafters of dictionaries. Few dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. This Article explores this definitional perplexity with original research and data on the historical usage of the word and its lexicographical coverage. As the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal, the demand for meaning attached to the word is increasingly prevailing on the legal profession.
Available dictionary definitions at best give us a general idea of what “conclusory” means but can hardly resolve the perplexity of how the word is used to filter the acceptable from the unacceptable pleadings. The “conclusory” standard in Iqbal might turn out to be nothing more than an “I know it when I see it” standard. There is a sense in Iqbal that conclusory statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards.
Part I documents the usage of the word “conclusory” and the upward trend in its use throughout the past century. Part II summarizes the use of the word “conclusory” in the pleadings standards established in Twombly and Iqbal. Part III then surveys the literature on Iqbal. Part IV concludes that the dictionary definitions are of little utility in understanding the meaning of “conclusory” in Iqbal and do not provide clear guidance to litigants or the courts in applying Iqbal’s pleadings standards in that regard. Such a conclusion should not be surprising, I contend, in light of the inherent limitations in dictionaries themselves. Part V presents two primary conclusions: (1) the Iqbal “conclusory” prong has a low degree of predictability in its application and is largely subject to judicial interpretation of pleadings on a highly individualized, judge-specific, and case-by-case basis; and (2) one of the only methods available to operate within this high degree of uncertainty is to base one’s understanding of the Iqbal test and other standards that require substance for the word “conclusory” on the historical usages of the word within past court decisions. Appendix E provides a reference list of U.S. Supreme Court cases that have used the term “conclusory” with minor annotation to indicate some context of the usage.
At the end, the reader will still not know what exactly that the word “conclusory” means. But therein lies the point of the exercise upon which this Article embarks. It is a seat on the observation deck to the evolutionary spread of a word into our lexicon, a revelation about the fallibility of dictionaries, a recognition of the sometimes indeterminate use of language, a caution that a word’s meaning is seldom revealed in isolation, a lesson on the importance of contextual analysis, a debate about the utility of flexibility in standards, and a charge in the face of unavoidable confusion to make the best use of skill and analogy to operate within the constraints of a new judicially-demanded ante for entering the game of civil litigation.
Damon Andrews and John Newman have posted Personal Jurisdiction and Choice of Law in the Cloud to SSRN.
Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.
Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.