Saturday, January 19, 2013
The Stanford Journal of Complex Litigation is having its inaugural symposium on Friday, February 8 at Stanford Law School. From the announcement:
The ongoing litigation between Chevron and the people of Lago Agrio, Ecuador regarding alleged environmental harms dating from Texaco’s oil exploration and extraction in Ecuador now spans three continents and nearly twenty years; and concerns the largest judgment ever awarded in an environmental lawsuit, eighteen billion dollars. The litigation has been called both “a shakedown,” and “a landmark victory,” yet it continues to be litigated around the world and divide both the bar and the academy. What are the consequences of this case? With complex litigation becoming increasingly transnational, what general lessons can be drawn from this case? These questions are at the heart of SJCL’s inaugural symposium.
Details and a full list of sessions and speakers at the link below:
Friday, January 18, 2013
Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).
Professors Neal Devins (William & Mary) and Saikrishna Prakash (Virginia) have posted on SSRN a draft of their Essay, Reverse Advisory Opinions, which will appear in the University of Chicago Law Review. Here’s the abstract:
Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to request legal opinions. The Supreme Court’s practice of calling for the views of the solicitor general is as unjustified as it has been long-lived. The lack of justification is crucial, for current practice suggests no limits. Courts might request the advice of law professors or the National Rifle Association; they might even poll former solicitors general of the United States about what the law is. We believe this power to request legal advice is alien to Article III’s adversarial system and is instead a feature of civil law systems and congressional committees, where the inquisitors have much more latitude. The only time the federal courts may request legal advice from nonparties is when a party refuses to address a legal question deemed relevant by the court and the court asks a nonparty to provide an adversarial argument.
Prof. Sandra Sperino (Cincinnati) has posted on SSRN a draft of her article, The Tort Label. Here is the abstract:
Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.
Thursday, January 17, 2013
Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).
Prof. Stewart Sterk (Cardozo) has posted on SSRN a draft of his article, Personal Jurisdiction and Choice of Law, which will appear in the Iowa Law Review. Here’s the abstract:
A New Jersey resident, injured while working in his home state, seeks relief from the United Kingdom manufacturer of a shearing machine marketed at trade shows held at various American locations. What reason is there to prevent New Jersey from providing a forum for its injured resident? In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the United States Supreme Court invoked both “individual liberty” and “sovereign authority” to justify its conclusion that New Jersey lacked personal jurisdiction over the British defendant. But the plurality’s failure to identify the liberty and sovereignty interests at stake have left personal-jurisdiction jurisprudence even more conceptually muddled and practically confused than it was before the Court’s most recent foray into the area.
Wednesday, January 16, 2013
The Supreme Court heard oral argument today in Gunn v. Minton—the latest in the Court’s long-running struggle to define when a federal law ingredient in a state law cause of action is sufficient for federal question jurisdiction (cases "arising under" federal law).
Here’s the oral argument transcript, which includes this comment from Justice Scalia [p.16 of the transcript]:
"Well, I like -- I like bright-line rules. In fact -- you know, I thought Holmes had it right. It doesn't arise under unless the cause of action is a Federal cause of action."
Justice Thomas is on record as being receptive to the so-called Holmes approach (in his Grable concurrence, 545 U.S. at 320-21). He is not alone, apparently.
Tuesday, January 15, 2013
UCLA Symposium In Honor Of Stephen Yeazell - Twenty-First Century Litigation: Pathologies and Possibilities
The 2013 UCLA Law Review Symposium, "Twenty-First Century Litigation: Pathologies and Possibilities, A Symposium in Honor of Professor Stephen Yeazell," will take place on Thursday, January 24 and Friday, January 25 at UCLA School of Law.
It is free and open to the public but advance RSVP is required. The announcement and full schedule is available here.
Jack Preis (University of Richmond) has posted In Defense of Implied Injunctive Relief in Constitutional Cases.When plaintiffs seek relief in constitutional cases, an important question of judicial power often arises: if Congress has neither authorized nor prohibited the courts from issuing a particular form of relief, may the courts issue the relief nonetheless? At present, the answer to this question mostly turns on the form of relief sought: if the plaintiff seeks damages, the court will refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the court will refuse relief only if Congress has specifically barred it.
These contradictory approaches have troubled scholars for some time. One way to resolve the asymmetry would be to extend the availability of monetary relief such that both remedies would be available in cases of congressional silence. Another option, however, would be to curtail injunctive relief such that neither remedy would be available in cases of congressional silence. This latter option might be particularly attractive given that the Supreme Court generally views implied causes of action as an usurpation of congressional power.
In this Article, I defend the federal courts’ power to issue injunctive relief in constitutional cases without explicit congressional authorization. The defense rests on two proofs — both largely historical. First, I show that the availability of equitable remedies has never been tightly tethered to the availability of damages, and that we should not therefore strive for symmetry between the two causes of action. Second, I show that both Congress and the federal courts have, since the Founding, viewed the existence of subject matter jurisdiction alone as implied authorization to issue injunctive relief.
Sunday, January 13, 2013
Prof. Omri Ben-Shahar (Chicago) has posted on SSRN a draft of his article, Arbitration and Access to Justice: Economic Analysis. Here’s the abstract:
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive effect. Paradoxically, rules that limit the use of pre-dispute arbitrations clauses hurt, rather than protect, weaker consumers, as they mandate a regressive reallocation. I also consider the role of class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.
(Hat Tip: Larry Solum)