Civil Procedure & Federal Courts Blog

Call For Papers: First Annual Workshop for Corporate & Securities Litigation

See below for details...

The University of Illinois College of Law and the University of Richmond School of Law invite submissions for the First Annual Workshop for Corporate & Securities Litigation.  This workshop will be held on Friday, November 8, 2013, in Chicago, Illinois.

OVERVIEW: This annual workshop will bring together scholars focused on corporate and securities litigation to present their works-in-progress.  Papers addressing any aspect of corporate and securities litigation or enforcement are eligible.  Appropriate topics include, but are not limited to, securities litigation, fiduciary duty litigation, or comparative approaches to business litigation.  We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis.

Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Illinois College of Law in Chicago, Illinois, on Friday November 8, 2013. Local costs (lodging and workshop meals) will be covered.  Participants are asked to pay for their own travel expenses. 

The workshop is designed to maximize discussion and feedback. All participants will have read the selected papers.  The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved. 

SUBMISSION PROCEDURE: If you are interested in participating, please send an abstract of the paper you would like to present to Jessica Erickson at jerickso@richmond.edu  not later than Friday, May 31, 2013.  Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 28.   

Questions: Any questions concerning the workshop should be directed to the organizers—Professor Verity Winship (vwinship@illinois.edu) and Professor Jessica Erickson (jerickso@richmond.edu).

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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.

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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 law_review@nyls.edu 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 law_review@nyls.edu or 212-431-2109.   Follow the New York Law School Law Review
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 nylslawreview.com

CALL FOR PAPERS: 6th Annual Junior Faculty Federal Courts Workshop

Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Court Workshop on October 4-5, 2013.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars will be announced shortly.

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, Civil Procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also  open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 3, then panels on Friday, October 4 and Saturday, October 5. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Brooklyn Law School will provide all meals for those attending the workshop, including a welcome dinner on Thursday and a reception on Friday.

Those wishing to present a paper must submit an Abstract by June 16, 2013. Papers will be selected by a committee of past participants; presenters will be notified by early July. Those planning to attend must register by August 26, 2013. 

We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at robin.effron@brooklaw.edu.

In the meantime, please save the dates of October 4-5.

Symposium on Judicial Review of Arbitral Awards and Mediated Settlement Agreements (Penn State, Feb. 22)

Announcement below. Additional details here.

It is now commonplace for parties to use private procedures, such as arbitration and mediation, to resolve legal disputes. When one of the parties refuses to comply with the results of these procedures, however, our public courts may be forced to decide whether to provide assistance with enforcement. Indeed, there is now substantial satellite litigation arising out of arbitral awards and mediated settlement agreements. Under these conditions, the grounds for, and standards of, judicial review are critical.  

On February 22, 2013, the Penn State Yearbook on Arbitration and Mediation will hold a symposium focusing on this relationship between the courts and private procedures. The symposium is entitled: “The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements.” 

The symposium will feature the following outstanding procedural law and dispute resolution experts:

• Arbitral awards and judicial review—Professors Jeff Stempel (UNLV),  Maureen Weston (Pepperdine) and Allen Blair (Hamline)
• Mediated settlement agreements and judicial review—Professors Jennifer Reynolds (Oregon), Jim Coben (Hamline) and Jacqueline Nolan-Haley (Fordham)
• Hybrids and judicial review—Professors Ellen Deason (Ohio State) and Andrea Schneider (Marquette), with commentary by Professors Jim Coben (Hamline) and Nancy Welsh (Penn State)

 Professor Tom Carbonneau (Penn State) will deliver the closing remarks.

 The symposium also will be webcast. 

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Stanford Law School Symposium (Feb. 8): Lessons from the Chevron Ecuador Litigation

Tomorrow is the Stanford Journal of Complex Litigation’s inaugural symposium. Details and a full list of speakers below:

Download Stanford Journal of Complex Litigation Symposium Program - Feb 8 2013 

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PS: As you may have seen, last week witnessed some new developments in the Chevron-Ecuador litigation.

Mississippi Law Journal Symposium: Poverty and Access to Justice (Friday, Feb. 8)

Details and a list of speakers available at The Faculty Lounge.

You can RSVP here, using the following information:  

• Event ID: 1881
• Event Password: Supra

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Class Action Conference at GW

All Civil Procedure teachers are invited to attend a Symposium on Class Actions to be held at the George Washington University Law School on March 7 and 8.  Many of the leading academics and class action practitioners in the nation will be participating on the five panels discussing the many controversial issues attending modern class action litigation.  The Symposium is jointly sponsored by the James F. Humphreys Complex Litigation Center at GW and by Public Justice.  Papers prepared for the Symposium by panelists will later be published in the GW Law Review.

 

There is no registration fee, but if you plan to attend please notify Frances Arias [farias@law.gwu.edu] at GW of your intentions so that the GW Law School can plan for your visit.  If you have questions about the event, please feel free to contact Professor Roger Trangsrud at GW [rtrang@law.gwu.edu and 202-994-6182].

 

A summary of the program is set out below.

 

 

                Schedule for Class Action Conference at GW on March 7-8

 

                Thursday

 

2:00 p.m. - Introductory Remarks [Burns Moot Court Room at GW Law]

 

2:15 - 3:45 p.m. - Panel One  

 

                The Proper Process to Follow before a Certification Decision is Made

 

                What evidentiary showing must the plaintiffs make before the trial court may certify a class action?  To what extent should the court assess the merits of the plaintiff’s case in making the certification decision?  Is this consistent with the Seventh Amendment?  To what extent should the trial court  evaluate the expert witness testimony of the parties before making the certification decision?  Does Daubertg apply and, if so, should Daubert hearings be held at this point?  Should pre-certification discovery be regulated or not?

 

                Moderator: Rick Marcus [Hastings]

 

                Panelists: Geoff Hazard [Hastings], Linda Mullenix [Texas], George Gordon [Dechert], Tom Sobol [Hagens Berman], Gerson Smoger [Smoger & Asso.]

 

4:00 - 5:30 p.m. - Panel Two

 

                Common Questions:  The Proper Relationship of 23(a)(2), 23(b)(3), and 23(c)(4) 

 

                Did the Supreme Court in Dukes properly interpret the 23(a)(2) common question requirement?  What must plaintiffs prove to show that common questions predominate over noncommon questions?  If class counsel has not asserted all claims available to class members, does that justify denying certification?  Should class actions be certified which will resolve some common issues, but which will later require individual adjudication of the remaining noncommon issues?  For common issues to predominate, must plaintiffs show that some proportion of the class suffered the relevant form of the injury?

 

                Moderator: Alan Morrison [GW]

 

                Panelists: Bob Bone [Texas], Josh Davis [San Francisco], Eric Cramer [Berger & Montague], Ted Boutros [Gibson Dunn]

 

 

                Friday

 

9:00 - 10:30 a.m. - Panel Three

 

                Class Actions and Remedies

 

                To what extent, if at all, can plaintiffs seek monetary remedies in b(1) or b(2) class actions?  Should class actions be certified if it is likely impracticable to distribute some or all of any resulting monetary settlement or judgment to the class?  Can the amount of the class recovery be determined by statistical sampling or other approximating methods or is individual proof of each class member’s loss necessary?  Should cy pres and fluid damage remedies by allowed in class actions and, if so, when and subject to what rules?

 

                Moderator: Bill Rubenstein [Harvard]

 

                Panelists: Ed Sherman [Tulane], Bob Klonoff [Lewis & Clark], Jay Tidmarsh [Notre Dame], Arthur Bryant [Public Justice]

 

 

10:45 a.m. - 12:15 p.m. - Panel Four

 

                Settlement Class Actions and Settlement Approval  

 

                Should the standard for class certification be different for purposes of settlement than for purposes of litigation?  If so, how?  Should the rules for approving class action settlements be altered?  If so, how?  Need every member of a settlement class have a viable claim?  How can the system ensure fairness, adequacy, and reasonableness of class action settlements without leaving legitimate settlements vulnerable to unjustified objections?

 

                Moderator: Sam Issacharoff [NYU]

 

                Panelists: Howard Erichson [Fordham], Roger Trangsrud [GW], Brian Fitzpatrick [Vanderbilt],  Elizabeth Cabraser [Lieff, Cabraser], David Sorensen [Berger & Montague]

 

 

2:00 - 3:30 p.m. - Panel Five

 

                Arbitration and Class Actions

 

                Should any form of class action be allowed in arbitration proceedings?  Are there any limits on the ability of employers or merchants to restrict the ability of employees or consumers to pursue class action litigation?  Should arbitration clauses be enforced even where doing so would prevent the effective vindication of substantive rights?  Does it matter that such substantive rights arise out of state or federal law?  Should legislation be passed or Rule 23 amended to define when negative value claims can be pursued within or without the arbitration process?

 

                Moderator: Rich Freer [Emory]

 

                Panelists: Myriam Gilles [Cardozo], Deborah Hensler [Stanford], Paul Bland [Public Justice], Jon Jacobson [Wilson, Sonsini], Jon Cuneo [Cuneo Gilbert]

RJE

Symposium at Stanford Law School: Lessons from the Chevron Ecuador Litigation

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:

Download SJCL Symposium

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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.

Panel participants include:

• Benjamin Spencer, Washington & Lee University School of Law
• Ronald J. Allen, Northwestern University Law School
• Clyde Spillenger, UCLA School of Law
• Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein LLP
• Laura Gómez, UCLA School of Law
• Jennifer Mnookin, UCLA School of Law
• Judge Andrew Wistrich, United States District Court for the Central District of California
• D. Michael Risinger, Seton Hall University School of Law
• A. Barry Cappello, Cappello & Noël LLP
• Pavel Wonsowicz, UCLA School of Law
• William Rubenstein, Harvard Law School
• Katherine V.W. Stone, UCLA School of Law
• Deborah Hensler, Stanford Law School
• Alexandra D. Lahav, University of Connecticut School of Law
• Kent D. Syverud, Washington University School of Law
• Nora Freeman Engstrom, Stanford Law School
• Tom Baker, University of Pennsylvania Law School
• Theodore Eisenberg, Cornell Law School
• Jocelyn Larkin, Executive Director, Impact Fund
• Joanna Schwartz, UCLA School of Law
• David Alan Sklansky, Berkeley Law
• Judge John Shepard Wiley Jr., Los Angeles Superior Court
• Judge Carolyn B. Kuhl, Los Angeles Superior Court

You can RSVP here.

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2013 AALS Annual Meeting (New Orleans, January 4-7, 2013)

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.

Saturday, January 5, 10:30 AM. The Class Action Fairness Act of 2005: Perspectives and Predictions

Section on Litigation, Co-Sponsored by Sections on Civil Procedure and Federal Courts; Magnolia, Third Floor, Hilton New Orleans Riverside

Moderator: Kenneth Kandaras, The John Marshall Law School

Speakers:

• John Beisner, Partner, Skadden, Arps, Slate, Meagher, & Flom LLP, Washington, DC
• Elizabeth J. Cabraser, Partner, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA
• Richard L. Marcus, University of California, Hastings College of the Law
• Linda S. Mullenix, The University of Texas School of Law
• Adam N. Steinman, Seton Hall University School of Law
• Jay Tidmarsh, Notre Dame Law School
• Georgene M. Vairo, Loyola Law School

Saturday, January 5, 12:00 noon: Section on Civil Procedure Luncheon

Napoleon Ballroom, Third Floor, Hilton New Orleans Riverside

Speaker: The Honorable Anthony J. Scirica, Judge, United States Court of Appeals for the Third Circuit, Philadelphia, PA

Saturday, January 5, 1:30 PM. 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead

Section on Civil Procedure; Versailles Ballroom, Third Floor, Hilton New Orleans Riverside

Moderator: Arthur R. Miller, New York University School of Law

Speakers:

• Jack Balagia, General Counsel, ExxonMobil Corporation, Irving, CA
• John Beisner, Partner, Skadden, Arps, Slate, Meagher, & Flom LLP, Washington, D.C .
• Stephen B. Burbank, University of Pennsylvania Law School
• Elizabeth J. Cabraser, Partner, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA
• The Honorable Patrick E. Higginbotham, Judge, U.S. Court of Appeals for the Fifth Circuit, Austin, TX
• Mary Kay Kane, University of California, Hastings College of the Law
• Emery G. Lee, III, Senior Researcher, Federal Judicial Center, Washington, D.C.
• Alan B. Morrison, The George Washington University Law School
• The Honorable Lee H. Rosenthal, Judge, Federal Judicial Center, Houston, TX
• The Honorable Antonin Scalia, Associate Justice, United States Supreme Court, Washington, D.C.
• Matthew Wiener, Special Counsel, Cueno Gilbert & LaDuca, LLP, Washington, D.C.

Sunday, January 6, 7:00 AM. Section on Federal Courts Breakfast

Grand Salon Section 7, First Floor, Hilton New Orleans Riverside

Sunday, January 6, 8:30 AM. Non-Article III Courts: Problems of Principle and Practice

Section on Federal Courts; Belle Chasse, Third Floor, Hilton New Orleans Riverside

Moderator: Johanna Kalb, Loyola University New Orleans College of Law

Speakers:

• Erwin Chemerinsky, University of California, Irvine, School of Law
• Thomas H. Lee, Fordham University School of Law
• Troy A. McKenzie, New York University School of Law
• Stephen I. Vladeck, American University, Washington College of Law

Sunday, January 6, 4:00 PM. In Memoriam: Choice of Law Methodology and the Work of Larry Ribstein

Section on Conflict of Laws; Jasperwood, Third Floor, Hilton New Orleans Riverside

Moderator: Erin A. O’Hara O’Connor, Vanderbilt University Law School

Speakers:

• Wulf Kaal, University of St. Thomas School of Law
• Michael E. Solimine, University of Cincinnati College of Law
• Tobias Barrington Wolff, University of Pennsylvania Law School

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Call for Papers - Conference in Honor of Richard Nagareda

“The Public Life of the Private Law: The Logic and Experience of Mass Litigation”
A Conference in Honor of Richard A. Nagareda

Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program.  “The Public Life of Private Law: The Logic and Experience of Mass Litigation” Conference will be held on September 27 and 28, 2013, at Vanderbilt and is jointly sponsored by the Branstetter Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media.  Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas).

Junior scholars are invited to submit paper proposals for the conference by February 15. More details in the full announcement, linked below:

Download Call for Papers - The Public Life of the Private Law

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Conference Announcement: Advocacy Under the Federal Rules of Civil Procedure After 75 Years

Conference:  Advocacy Under the Federal Rules of Civil Procedure at the University of Kansas, November 8-9, 2012

The Kansas Law Review in conduction with the Shook, Hardy & Bacon Center for Excellence in Advocacy will host "Advocacy Under the Federal Rule of Civil Procedure After 75 Years"

Speakers include:

 • Professor Richard Marcus – Horace O. Coil Chair in Litigation at University of California Hastings College of the Law; Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S.

• John Barkett – Partner, Shook Hardy & Bacon L.L.P, Miami office; ABA Section of Litigation’s liaison member to the Federal Civil Rules Advisory Committee.

• Professor Steven Gensler – Professor, Associate Dean of Research and Scholarship at University of Oklahoma College of Law; Member of the United States Judicial Conference Advisory Committee on Civil Rules; Former Supreme Court Fellow at the Administrative Office of the United States Courts

• Professor Robert Burns – Professor of Law at Northwestern University School of Law; Program Director and Section Leader for the National Institute for Trial Advocacy.

• Honorable Lee H. Rosenthal – U.S. District Court Judge for the Southern District of Texas, Houston Division; Chair of the Judicial Conference Committee on the Rules of Practice and Procedure; Former Chair of the Judicial Conference Advisory Committee on Civil Rules.

• Rebecca Kourlis – Founder and Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver; Former Justice of the Colorado Supreme Court.

• John H. Martin – Partner, Thompson & Knight LLP; Fellow, American College of Trial Lawyers; Fellow, International Academy of Trial Lawyers

• Kelley Sears – Senior Vice President and Deputy General Counsel, Wal-Mart

• Honorable David J. Waxse – Magistrate Judge for the United States District Court, District of Kansas; Former Chair of Kansas Commission on Judicial Qualifications; Past-President of the Kansas Bar Association.

 

All are invited to attend the conference.  Additionally, some funds are available to sponsor room and board faculty wishing to attend.  Please contact Prof. Lou Mulligan at lumen@ku.edu

RJE

The Meaning of McIntyre

Now on SSRN is my essay, The Meaning of McIntyre, which was part of a recent symposium at Southwestern Law School in Los Angeles. Here’s the abstract:

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as establishing new constitutional restraints on state court exercises of personal jurisdiction, or as resolving previously open questions in favor of a more restrictive approach. These opinions misread the Justices’ opinions in McIntyre. In particular, there has been confusion about Justice Breyer’s concurrence, which explicitly disagreed with Justice Kennedy’s reasoning and was premised on a narrow understanding of the factual record in McIntyre. Many lower court decisions, however, correctly recognize that the fractured McIntyre decision does not mandate new constitutional restrictions on personal jurisdiction.

Here are some of the things lower courts have been up to since McIntyre came down:

(1) addressing the extent to which McIntyre has any binding holding at all, either via the Marks rule (under which “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”), or by attempting to aggregate the views of enough Justices to reach a majority on certain issues;
(2) embracing controversial aspects of Justice Kennedy’s plurality opinion that are in significant tension with earlier Supreme Court majority decisions;
(3) reading McIntyre as calling into question the “reasonableness” prong of the prevailing two-step jurisdictional framework;
(4) assessing McIntyre’s impact on the role that foreseeability plays in determining jurisdiction over defendants whose products reach a state through the “stream of commerce”; and
(5) discussing whether McIntyre has declared a winner in the disagreement between Justice O'Connor and Justice Brennan in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

Many thanks to everyone at Southwestern for doing such a great job with the symposium. I was glad to be a part of it.

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AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

From Steve Vladeck:

The AALS Section on Federal Courts is pleased to announce the
creation of an annual award for the best article on the law of federal
jurisdiction by a full-time, untenured faculty members at an AALS member or
affiliate school—and to solicit nominations (including self-nominations) for the
prize to be awarded at the 2013 AALS Annual Meeting in New Orleans.

 

The purpose of the award program is to recognize outstanding
scholarship in the field of federal courts by untenured faculty members.  To
that end, eligible articles are those in the field of Federal Courts law that
were published by a recognized journal during the twelve-month period ending on
September 1, 2012 (date of actual publication determines
eligibility).  Eligible authors are those who, at the close of nominations
(i.e., as of September 15, 2012), are untenured, full-time
faculty members at AALS member or affiliate schools, and have not previously won
the award.

 

Nominations (or questions about the award) should be directed
to Steve Vladeck at American University Washington College of Law (svladeck@wcl.american.edu), Chair-Elect of the AALS Section on
Federal Courts. Without exception, all nominations must be received by 11:59
p.m. (EDT) on September 15, 2012. Nominations will be reviewed by
a prize committee comprised of Professors Richard H. Fallon, Jr. (Harvard),
Amanda Frost (American), and Carlos Vázquez (Georgetown), with the result
announced at the Federal Courts section program at the 2013 AALS Annual Meeting.

PM 

Burch on Governing Securities Class Actions

Elizabeth Chamblee Burch (University of Georgia) has posted Governing Securities Class Actions to SSRN.

This short essay, written for a symposium on The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond, decouples due process from a proceduralist’s intuition and explains why it matters in securities class actions. It begins by exploring several analytical models that shed light on the representative relationship in class actions, including a public law analogy to the administrative state, a private law analogy to corporate law, and another, more modern public law analogy to political governance. After finding that the political-governance model best addresses both sources of inadequate representation in securities class actions — rifts between class members and class counsel, and between class members and their lead plaintiff — this Essay argues that incorporating qualified class members into securities class action governance will improve due process and legitimacy in securities litigation just as it does in the political sphere.

 

RJE

Oregon Law Review Symposium Dedicated to Arthur Miller

Now in print is the Oregon Law Review’s symposium issue: Miller’s Courts: Media, Rules, Policy, and the Future of Access to Justice, covered earlier here. From Mary Kay Kane’s Foreword:

It is most appropriate that the Oregon Law Review is dedicating this Symposium, which is focused on questions relating to access to justice in our civil courts, to Professor Arthur R. Miller, because his entire career has been dedicated to trying to preserve and increase public access to justice. His voice on these questions can be heard in multiple venues. Through his work on rulemaking, legislative drafting, treatise writing, CLE seminars, public television, public speaking, litigation, and writing law review articles and popular books, Arthur Miller has contributed to collaborations among the academy, the bench, and the bar in ways that have enriched both the legal community and civil society in deep and profound ways.

Contents and links below:

• Mary Kay Kane, Foreword, 90 OR. L. REV. 913
• Hon. Jack B. Weinstein, Some Memories of Arthur Miller, 90 OR. L. REV. 919
• Hon. Ronald M. Gould, A Student’s Tribute to Arthur R. Miller, 90 OR. L. REV. 923
• Elizabeth J. Cabraser, The Procedural Vision of Arthur R. Miller: A Practitioner’s Tribute, 90 OR. L. REV. 929
• Alan B. Morrison, A Tribute to Arthur Miller, 90 OR. L. REV. 937
• David Hartman, A Journalist’s Tribute to Arthur R. Miller, 90 OR. L. REV. 941
• Michael Moffitt, Arthur Miller Scared the Hell out of Me, 90 OR. L. REV. 945
• Edward H. Cooper, King Arthur Confronts TwIqy Pleading, 90 OR. L. REV. 955
• Alan B. Morrison, The Necessity of Tradeoffs in a Properly Functioning Civil Procedure System, 90 OR. L. REV. 993
• Hon. Diarmuid F. O’Scannlain, Access to Justice Within the Federal Courts—A Ninth Circuit Perspective, 90 OR. L. REV. 1033
• Harvey I. Saferstein and Nathan R. Hamler, Location, Location, Location: A Proposal for Centralized Review of the Now Largely Unreviewable Choice of Venue in Federal Litigation, 90 OR. L. REV. 1065
• Danya Shocair Reda, The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions, 90 OR. L. REV. 1085
• Alex Kozinski and Stephanie Grace, The (Continued) Assault on Privacy: A Timely Book Review Forty Years in the Making, 90 OR. L. REV. 1135
• Brooke D. Coleman, What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime, 90 OR. L. REV. 1147
• Jennifer W. Reynolds, Epilogue: On Miller, Mini-Fujis, and the Meaning of Access, 90 OR. L. REV. 1181

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SCOTUSblog Online Symposium on Kiobel v. Royal Dutch Petroleum

SCOTUSblog has started an online symposium discussing Kiobel v. Royal Dutch Petroleum, which will be reargued in the Supreme Court this fall. Here’s a brief introduction by Kali Borkoski. To keep track of the new contributions as they get posted, head here. The guest contributors include:

• Donald Childress – Pepperdine School of Law
• Sarah Cleveland – Columbia Law School
• Anthony Colangelo – SMU Dedman School of Law
• Susan Farbstein – Harvard Law School
• Meir Feder – Jones Day
• Oona Hathaway – Yale Law School
• Eugene Kontorovich – Northwestern School of Law
• Julian Ku – Hofstra Law School
• Michael Ramsey – University of San Diego Law School
• Beth Stephens – Rutgers School of Law
• Ingrid Wuerth – Vanderbilt Law School

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Symposium on the Supreme Court's 2011 Personal Jurisdiction Decisions: McIntyre and Goodyear

The South Carolina Law Review’s symposium issue, “Personal Jurisdiction for the Twenty-First Century: The Implications of McIntyre and Goodyear Dunlop Tires,” is now available online:

Keynote Address

Arthur R. Miller, McIntyre in Context: A Very Personal Perspective

Articles

Adam N. Steinman, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro

John Vail, Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro

Allan R. Stein, The Meaning of "Essentially at Home" in Goodyear Dunlop

Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan

Linda J. Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

Lea Brilmayer & Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and J. McIntyre Machinery v. Nicastro

Paul D. Carrington, Business Interests and the Long Arm in 2011

Rodger D. Citron, The Case of the Retired Justice: How Would Justice John Paul Stevens Have Voted in J. McIntyre Machinery, Ltd. v. Nicastro?

Meir Feder, Goodyear, "Home," and the Uncertain Future of Doing Business Jurisdiction

Collyn A. Peddie, Mi Casa Es Su Casa: Enterprise Theory and General Jurisdiction over Foreign Corporations After Goodyear Dunlop Tires Operations, S.A. v. Brown

Wendy Collins Perdue, What's "Sovereignty" Got to Do with It? Due Process, Personal Jurisdiction, and the Supreme Court

Howard B. Stravitz, Sayonara to Fair Play and Substantial Justice?

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2013 AALS Section on Litigation - Call for Papers

From the Civil Procedure Profs listserv:

Dear AALS Litigation Section Members:

I am writing as Chair
of the AALS Section on Litigation to inform you of the Call for Papers
associated with the Section's Program at the 2013 Annual Meeting scheduled for
January 4-7, in New Orleans, Louisiana. The Program is titled "The Class Action
Fairness Act of 2005: Perspectives and Predictions". A pdf version of the Call
for Papers is attached and the text of the Call appears below for your
convenience.

The author of the selected paper will be invited to join a
panel that includes: John Beisner (Skadden Arps), Elizabeth Cabraser (Lieff,
Cabraser, Heimann & Bernstein), Richard Marcus (UC Hastings), Linda Mullenix
(U. of Texas), Jay Tidmarsh (Notre Dame) and Georgene Vairo (Loyola of
LA).

My best,

Kenneth Kandaras
Professor of Law
John
Marshall Law School
315 South Plymouth Court
Chicago, IL.
60604
312-987-1421
7kandara@jmls.edu

Call for Papers

AALS
Section on Litigation
AALS Annual Meeting, January 4-7, 2013, New
Orleans,Louisiana
“The Class Action Fairness Act of 2005: Perspectives and
Predictions”


In connection with the January 2013 Annual Meeting of
the Association of American Law Schools in New Orleans, Louisiana, the Section
on Litigation will be sponsoring a panel discussion entitled: “The Class Action
Fairness Act of 2005: Perspectives and Predictions”. The Sections on Civil
Procedure and Federal Courts are co-sponsoring the program.

Upon its
enactment, CAFA’s supporters hailed the statute as a needed remedy to combat
abusive state court class action proceedings as well as an important means to
achieve tort reform. With several years-on since CAFA’s enactment, the panel
will explore some of the significant issues that CAFA poses for litigants and
the legal community as a whole. The panelists include:John Beisner (Skadden
Arps), Elizabeth Cabraser (Lieff, Cabraser, Heimann & Bernstein), Richard
Marcus (UC Hastings), Linda Mullenix (U. of Texas), JayTidmarsh (Notre Dame),
and Georgene Vairo (Loyola of LA).

The Program will include a speaker
selected from this Call for Papers.

Eligible papers may address any topic
related to CAFA, including topics that consider its effectiveness in achieving
its stated aims, its influence on litigation strategies, and its impact on the
legal community and society as a whole. Both essay and article length papers are
welcome. The selected author will be invited to participate in the Program, at
the expense of the author’s institution. The Review of Litigation at the
University of Texas has agreed to publish the paper of the selected author and
other articles submitted by program panel members (subject to the Review’s final
approval of the articles) in its Symposium issue. The Review is well-known for
its publication of scholarship related to litigation, civil procedure and
dispute resolution.

The deadline to submit a draft paper is Thursday,
September 6, 2012. Please submit the draft paper to Professor Kenneth Kandaras,
Chair of the Section of Litigation, as an attachment to an e-mail sent to
Professor Kandaras at 7kandara@jmls.edu. The attachment should be in Word or PDF
format. Late submissions will not be accepted. A subcommittee of the Section’s
Executive Committee will review the submissions. Decisions will be communicated
no later than October 1,
2012.

________________________________
Attachments:
Litigation
Section_Call for Papers 2013.pdf (42 k): https://connect.aals.org/p/fo/do/download=1&fid=5151

View
post online: https://connect.aals.org/p/fo/st/post=21333&anc=p21333#p21333

PM