Thursday, April 25, 2013

Happy 75th Birthday, Erie!

Seventy-five years ago today, the Supreme Court issued its decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).


April 25, 2013 in Federal Courts, Supreme Court Cases | Permalink | Comments (1)

Wednesday, April 24, 2013

Call For Papers: Conference for Empirical Legal Studies

The Eighth Annual Conference on Empirical Legal Studies has issued a call for papers.  Submissions are due July 3, 2013 and will be peer-reviewed.  The conference will be held at the University of Pennsylvania Law School on October 25-26, 2013.


April 24, 2013 in Conferences/Symposia | Permalink | Comments (0)

Tuesday, April 23, 2013

Compensating Boston Victims with a Fund

The ubiquitous Kennth Feinberg has arrived in Boston to help administer a compensation fund for the victims of the marathon bombing.  The fund, One Fund Boston, was established by Boston's mayor and is supported by private donations.  The NYTimes reports here.


April 23, 2013 | Permalink | Comments (0)

Monday, April 22, 2013

NYLS Law Review Special Issue on Iqbal and Employment Discrimination


The New York Law School Law Review is pleased to announce the forthcoming publication of


Trial by Jury or Trial by Motion?

Summary Judgment, Iqbal, and Employment Discrimination


An invaluable resource for employment lawyers


Pre-order your copy by Monday, April 15, 2013 here.


$19.95 (shipping included)

$16.95 for NELA Members

For multiple copy and international orders,

contact or (212) 431-2109.


The articles in this issue by federal judges, practitioners, and scholars examine in-depth the high failure rate of plaintiffs in employment discrimination cases and propose specific, practical strategies for lawyers and policymakers to address, and reverse, the trend.


  • Introduction by Arthur S. Leonard, Professor of Law, New York Law School.
  • Summary Judgment in Employment Discrimination Cases: A Judge's Perspective by Hon. Denny Chin, U.S. Circuit Court Judge, U.S. Court of Appeals for the Second Circuit.
  • Essay: From the "No Spittin', No Cussin' And No Summary Judgment" Days of Employment Discrimination Litigation to the "Defendant's Summary Judgment Affirmed Without Comment" Days: One Judge's Four-Decade Perspective by Hon. Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa.
  • The Jury (Or More Accurately the Judge) is Still Out for Civil Rights & Employment Cases Post-Iqbal by Suzette M. Malveaux, Associate Dean of Academic Affairs and Associate Professor of Law, The Catholic University of America, Columbus School of Law.
  • Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination and Summary Judgment by Hon. Bernice B. Donald, U.S. Circuit Court Judge, U.S. Court of Appeals for the Sixth Circuit; and J. Eric Pardue, Associate, Vinson & Elkins LLP.
  • "Only Procedural": Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases by Elizabeth M. Schneider, Rose L. Hoffner Professor of Law, Brooklyn Law School; and Nancy Gertner, Professor of Practice, Harvard Law School and U.S. District Court Judge, District of Massachusetts (Ret.).
  • Judges and Inferences in Employment Lawsuits: A Case Study by David L. Lee, Principal, Law Offices of David L. Lee; and Jennifer C. Weiss, Principal, Law Offices of Jennifer C. Weiss.
  • Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases by Deborah Thompson Eisenberg, Assistant Professor of Law, University of Maryland Francis King Carey School of Law and Director, Center for Dispute Resolution.
  • Documenting the Poor Quality of Plaintiffs' Briefings in Appellate and District Court Employment Discrimination Litigation by Scott A. Moss, Associate Professor of Law, University of Colorado Law School.
  • Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano by Ann C. McGinley, William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas.


Papers were presented at the Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination conference held at New York Law School in April 2012. View the conference videos on our website, on YouTube, and on iTunesU (search "New York Law School").


Questions? Contact the Law Review at or 212-431-2109.


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About the New York Law School Law Review 

The New York Law School Law Review is a journal of legal scholarship edited and published by students at New York Law School four times a year. The Law Review is the largest law review in the United States, with 2012-2013 membership of more than 140 students, led by an editorial board assisted by staff editors, online staff editors, and members, working together with a full-time faculty publisher, to make all editorial and publication decisions. The Law Review has both a scholarly and an educational mission. It serves as an academic forum for legal scholarship by sponsoring four symposia each year and publishing the scholarship produced through those events. The Law Review also offers its students an important learning and professional development experience, providing opportunities for members to develop their writing, research, and editing skills, as well as other skills that are important for the successful practice of law, including communication, organizational, and project management skills. The Law Review is printed by Joe Christensen, Inc., in Lincoln, Nebraska. The Law Review's editorial and general offices are located at New York Law School, 185 West Broadway, New York, NY 10013.


Find more information on the Law Review's website at 


April 22, 2013 in Conferences/Symposia | Permalink | Comments (0)

Is today's cert grant in Daimler v. Bauman a follow-up to Kiobel, or a follow-up to Goodyear?

Some early blog and twitter chatter casts the Supreme Court’s cert grant in DaimlerChrysler AG v. Bauman as a sequel to last week’s Kiobel decision on the Alien Tort Statute (ATS). Although Daimler is an ATS case, the Court does not seem poised to revisit its test (such as it is) for extraterritorial application of the ATS. The question presented in Daimler is about personal jurisdiction in general—actually, it’s about general personal jurisdiction in general. According to the defendant’s petition for certiorari, “[t]he question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

This question calls to mind an issue from the Court’s 2011 Goodyear decision—one that Justice Ginsburg’s unanimous opinion acknowledged but did not address. The petitioners in Goodyear were foreign subsidiaries of an American parent company, and they objected to personal jurisdiction in North Carolina state court. Here’s an excerpt from the end of the Court’s opinion [131 S. Ct. at 2857]:

Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners' ties to North Carolina with those of Goodyear USA and other Goodyear entities. See Brief for Respondents 44–50. In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. See Brilmayer & Paisley, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Cal. L. Rev. 1, 14, 29–30 (1986) (merging parent and subsidiary for jurisdictional purposes requires an inquiry “comparable to the corporate law question of piercing the corporate veil”). But see 199 N.C.App., at 64, 681 S.E.2d, at 392 (North Carolina Court of Appeals understood that petitioners are “separate corporate entities ... not directly responsible for the presence in North Carolina of tires that they had manufactured”). Neither below nor in their brief in opposition to the petition for certiorari did respondents urge disregard of petitioners' discrete status as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well. 

One caveat, of course, is that the Supreme Court’s ultimate decisions do not always hew closely to the precise questions for which it has granted certiorari. But if the Court’s concern in Daimler is the extraterritorial application of the ATS, I suspect it would have GVR’d the case for reconsideration in light of Kiobel—as it did today with another Ninth Circuit ATS case (Rio Tinto v. Sarei).


April 22, 2013 in Adam Steinman, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Grants Cert in Another Personal Jurisdiction Case: DaimlerChrysler v. Bauman

Today the Supreme Court granted certiorari in DaimlerChrysler AG v. Bauman (No. 11-965). Here is the question presented (from the defendant’s cert petition):

Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents—because it has a different, indirect subsidiary that distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements necessary to maintain their separate corporate identities.

The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.

You can find a link to the Ninth Circuit’s decision below and other information about the case at SCOTUSblog’s casefile.


April 22, 2013 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)