May 06, 2013
New blog tracks Federal Arbitration Act cases
Professor Imre Szalai has created a new blog, www.outsourcingjustice.com, posting about recent state and federal cases involving the Federal Arbitration Act.
March 24, 2013
Plaintiffs' Mass Tort Lawyer Disbarred in Kentucky
In an opinion released March 21, 2013, the Kentucky Supreme Court has "permanently disbarred" plaintiffs' mass tort lawyer Stan Chesley from practicing law in the Commonwealth of Kentucky. Chesley may face reciprocal disbarment from his home state of Ohio, where he is married to a federal judge.
The Kentucky Supreme Court held that Chesley was guilty of eight ethical violations relating to the collection of an "unreasonable" fee in connection with the fen-phen litigation.
Hat tip: ABA Weekly Journal.-PM
March 06, 2013
Civil Procedure Will Be on February 2015 Multistate Bar Examination
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.
February 26, 2013
Trial in BP Oil Spill Case
The trial in the BP Oil Spill case began yesterday in New Orleans federal court, before U.S. District Judge Carl Barbier. Coverage at…
- AP (Michael Kunzelman)
- NPR (Mark Memmott)
- NY Times (Clifford Krauss & Barry Meier)
- Times-Picayune (Mark Schleifstein)
November 08, 2012
AO Statistics Show Bankruptcy Filings Down in FY 2012
The Third Branch News reports, "Bankruptcy cases filed in federal courts for fiscal year 2012, the 12-month period ending September 30, 2012, totaled 1,261,140, down 14 percent from the 1,467,221 bankruptcy cases filed in FY 2011, according to statistics released today by the Administrative Office of the U.S. Courts." In addition, "[f]or the 12-month period ending September 30, 2012, business bankruptcy filings—those where the debtor is a corporation or partnership, or the debt is predominantly related to the operation of a business—totaled 42,008, down 16 percent from the 49,895 business filings reported in the 12-month period ending September 30, 2011." Filings decreased for every bankruptcy chapter (7, 11, 12, and 13).
The link above contains further links to detailed statistics.
October 09, 2012
Miller on Closing the Courthouse Doors
Concord Law School invites our readers to attend a talk by Professor Arthur Miller (NYU) on Saturday, October 20th at the University Club of Pasadena, entitled Don't Look Now, But They May Be Closing The Courthouse Doors.Download Invitation (Arthur Miller Lecture)
You can RSVP by phone (310.689.3216) or email.
September 24, 2012
Kritzer and Drechsel on Local News Coverage of Civil Litigation
Herbert M. Kritzer and Robert E. Drechsel have posted on SSRN a paper entitled “Local News of Civil Litigation: All the Litigation News That's Fit to Print or Broadcast,” 96 Judicature, No. 1, pp. 16-22.
What is the nature of the coverage of civil litigation by local newspapers and local television? That is the question considered in this paper. Drawing upon news clips from 2004 (11 media markets around the U.S.), 2006 (9 media markets in the Midwest), and 2007 (9 media markets in the Midwest), we present a portrait of litigation as locally reported. We find (a) torts make up a minority of reports, (b) very few verdicts are reported, and (c) dollar figures are mentioned in a modest proportion of cases but when mentioned tend to be large. We also find significant differences in the reporting practices of local television and local newspapers, particularly with regard to the types of cases discussed (more torts on television and more cases against government in the newspapers). We conclude with some speculations about the implications of our analysis for debates over civil justice “reform.”
September 20, 2012
Survey Finds 41% of Americans Doubt Fairness of Civil Justice System
In a survey last month of 1,020 randomly selected adults, DRI-The Voice of the Defense Bar, found that 41% of the respondents were not confident about the fairness of civil courts. A majority of respondents also believed that class actions improved corporate responsibility (but also that plaintiffs' attorneys were unfairly enriched as a result). Most would rather have a jury decide their civil case than a judge, while admitting that if called as a juror, they would probably have some bias.
The full survey is available here.
Hat tip: Blog of the Legal Times.
September 07, 2012
Amicus Files Brief Explaining Antitrust Law in Cartoons to Meet Five-Page Limit
The ABA Journal reports that "a lawyer who opposes the Justice Department’s proposed antitrust settlement with three publishers of e-books has filed an amicus brief (PDF) in the form of a comic strip."
After U.S. District Judge Denise Cote of Manhattan limited his brief to five pages, lawyer Bob Kohn conceived of the “graphic novelette” and says it complies with court rules requiring 12-point or larger type and one-inch margins. Although Publishers Weekly called the brief "brilliant," it apparently failed to persuade Judge Cote, who approved the settlement.
June 26, 2012
Report on New York State's Commercial Litigation Courts Released
The Chief Judge's Task Force on Commercial Litigation in the 21st Century: Report and Recommendations to the Chief Judge of the State of New York (June 2012) is available on the New York courts web site. The Commercial Division in New York state courts began as a pilot project in 1993 and now is established in eight counties. A Task Force was commissioned to study commercial litigation "to ensure that the New York Judiciary helps our State retain its role as the preeminent financial and commercial center of the world."
The Task Force's recommendations include:
• establishing a new class of Court of Claims judges
• increasing the monetary threshold for actions to be heard in the Commercial Division
• providing Commercial Division Justices with additional law clerks
• rehiring Judicial Hearing Officers
• recruiting seasoned commercial litigation practitioners as Special Masters
• convening an Institute on Complex Commercial Litigation
• earlier assignment of cases
• revised procedures on expert discovery
• limits on privilege logs
• adjustments to e-discovery
• creating a permanent statewide Advisory Council on the Commercial Division.
June 18, 2012
Tamanaha's Book "Failing Law Schools" Released
Professor Brian Tamanaha of Washington University in St. Louis has published "Failing Law Schools," a book criticizing American legal education. According to the National Law Journal, "its central argument is that going to law school is a raw deal for most students."
May 04, 2012
Preliminary Approval Granted for Deepwater Horizon Settlement
The story is reported by the National Law Journal here. The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.
Class members have until August 31 to object and until October 1 to opt out. The final fairness hearing is set for November 8.
March 16, 2012
House Republicans Link Bipartisan “IPAB Repeal” Bill with Partisan “Tort Reform” Bill
You can never be too rich or too thin, and apparently you can never get enough “tort reform,” either.
And if you keep repeating over and over that damages caps lower malpractice premiums, maybe it will someday be true despite all empirical evidence to the contrary.
A bill to repeal a portion of “Obamacare” dealing with the Independent Payment Advisory Board (H.R. 452) had bipartisan support until House Republicans linked it with the Orwellian “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011” (H.R. 5). The resulting bill, (http://docs.house.gov/billsthisweek/20120319/CPRT-112-HPRT-RU00-HR5Floor.xml) now called the “Protecting Access to Healthcare Act,” provides in its findings:
(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress finds
that our current civil justice system is adversely affecting patient access to
health care services, better patient care, and cost-efficient health care, in
that the health care liability system is a costly and ineffective mechanism for
resolving claims of health care liability and compensating injured patients,
and is a deterrent to the sharing of information among health care
professionals which impedes efforts to improve patient safety and quality of
(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that the
health care and insurance industries are industries affecting interstate
commerce and the health care liability litigation systems existing throughout
the United States are activities that affect interstate commerce by
contributing to the high costs of health care and premiums for health care
liability insurance purchased by health care system providers.
Same old rhetoric, same old provisions -- $250,000 cap on noneconomic damages, 3-year-statute of limitations, elimination of joint and several liability, court review and serious reduction of plaintiff’s attorneys’ contingent fees, and limitations on punitive damages (including the prohibition of pleading such damages initially).
Politico (http://www.politico.com/news/stories/0312/73957.html) reports that the IPAB bill was expected to go to the floor of the House for a vote later this month, but now “[i]It’s unclear exactly how Republicans plan to move the two bills, but both should clear the House relatively easily.”
February 28, 2012
No Cameras In the Courtroom? Try Puppets Instead!
The Wall Street Journal reports that a news station, WOIO 19 is covering one of Ohio's biggest corruption trials using puppets in a show called The Puppet's Court. Because cameras are not allowed in the courtroom, reporter Kirk Maynard reenacts bits of testimony and trial with scenes like this:
According to the WSJ,
The result is a cross between "The Sopranos" and "The Muppet Show" that has elicited some complaints from viewers and hand-wringing from journalism professors. But since the trial began in January, "The Puppet's Court" has led a ratings surge for the station's late news show and won praise from some politicians.
I, personally, think it is one of the funniest things I've ever seen, and a genuinely creative response to some of the absurdities of American courts. Perhaps next year I'll allow my students to perform a puppet show in lieu of the final exam.
February 26, 2012
BP Oil Spill Trial Delayed
The first phase of the trial was supposed to begin tomorrow before Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. It's been delayed until March 5. Story by Rebecca Mowbray of the Times-Picayune here.
February 13, 2012
Minnesota Governor Vetoes So-Called “Tort Reform” Measures
Thank you, Governor Mark Dayton, for the common sense approach shown in your veto messages for four “tort reform” bills. The full letters are available on the governor’s web site here.
“I am vetoing and returning Chapter 118, SF 149, which addresses the unrelated topics of conciliation court claim limits and class actions appeals. These provisions are not consistent with the court’s recommendations for effectively addressing small claims, represent legislative meddling with court procedures best handled by the judiciary, and do not address legitimate problems in Minnesota. A recent study by the National Center for State Courts revealed that 72% of the civil case load in Minnesota is consumed by small claims and contract matters, while civil tort claims represent less than 3% of the cases. The Legislature should be addressing the areas of the court that consume the bulk of its workload.”
“I have vetoed and am returning Chapter 119, SF 373, which drastically lowers the statute of limitations for many important civil claims. . . . I am perplexed by the charge that Minnesota is an excessively litigious state or has a negative civil justice system for business. According to the Minnesota Supreme Court, civil case filings for injury claims are down over 40% since 1997, despite our expanding population. . . .”
“I am vetoing and returning Chapter 120, SF 429, a measure that has been rejected several times by the legislature and the courts. . . . This legislation would require that attorneys' fee awards must be in proportion to the damages awarded in a civil case. This requirement would seriously undermine the legislative purpose for enacting statutes that allow Minnesota businesses, consumers, and employees to collect their damages - plus reasonable attorney fees - for certain wrongful conduct. A rule of proportionality would make it difficult, if not impossible, for individuals to bring important and meritorious claims of relatively small value. To ensure that those claims are brought forward, the legislature has shifted the costs of bringing the claim to the negligent party, and rightly so. This legislation removes that protection. Further, the courts already review fee awards to ascertain that they are in relation to the recovery. However, the court will also consider other relevant factors like the time involved in the case and the nature of the controversy. No evidence has been presented that the current system is unfair to those found in violation of Minnesota laws.”
“I am vetoing and returning Chapter 121, SF 530, which would lower the interest rate on judgments for negligent parties and their insurance companies. This bill is a step backwards for justice.”
February 09, 2012
In case you were wondering what ever happened to the complaint filed by five killer whales (represented by PETA) alleging that Sea World was subjecting them to slavery in violation of the 13th Amendment, it was just dismissed. The district court in San Diego held that "the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas."
So corporations are people, but killer whales are not.
Hat tip to Huff Post Green; the article is here.
February 01, 2012
Federal Civil Procedure Question from July 2011 Multistate Essay Examination
The National Conference of Bar Examiners probably posted the questions from the July 2011 bar exam some time ago. I was only reminded to look when Kevin Clermont let me know that the link I’d posted to the February 2011 question no longer worked. He’s right -- the NCBE has taken down the link to the February exam.
To avoid such vanishing links in the future, I’ve cut and pasted the Federal Civil Procedure question from the July 2011 bar below.
Having only read this quickly, I have to ask: am I missing something? Really, the whole thing leads up to two straightforward appealability issues?
Anyway, here it is:
Federal Civil Procedure Question (from July 2011 MEE)
OfficeEquip is a U.S. distributor of office machines. It is incorporated in State A, where it has its principal place of business. BritCo is a manufacturer of copiers. It is incorporated in Scotland and has its principal place of business in London, England. OfficeEquip sued BritCo, alleging that BritCo had breached a long-term contract to supply copiers to OfficeEquip.
The suit was filed in the United States District Court for State A, and OfficeEquip properly invoked the court’s diversity (alienage) jurisdiction.
BritCo made a timely motion to dismiss the complaint on the ground that it was filed in violation of a forum-selection clause in the supply contract that required all contract disputes to be adjudicated in London. While its motion to dismiss was pending, BritCo filed an answer to the complaint.
In its answer, BritCo denied breaching the supply contract. BritCo also made a counterclaim seeking damages for OfficeEquip’s alleged breach of a contractual covenant not to compete with BritCo.
OfficeEquip filed a motion for judgment on the pleadings on BritCo’s counterclaim, arguing that the covenant not to compete was unenforceable as a matter of law.
After a short period of discovery, the district judge issued the following two orders:
OfficeEquip’s motion for judgment on the pleadings is granted. The contractual covenant not to compete is void as a matter of public policy and is therefore unenforceable. Given that this is strictly a legal issue and entirely severable from OfficeEquip’s breach of contract claim, there is no just reason for delay, and I accordingly direct that judgment should be entered in favor of OfficeEquip on BritCo’s counterclaim.
BritCo’s motion to dismiss is denied. Enforcement of the forum-selection clause would be unreasonable in this case. OfficeEquip has never done business in London, and it would be extremely inconvenient for it to litigate there.
Trial on the breach of contract claim is scheduled in three months.
1. Can BritCo immediately appeal the district court’s order granting OfficeEquip’s motion for judgment on the pleadings with respect to BritCo’s counterclaim? Explain.
2. Can BritCo immediately appeal the district court’s order denying its motion to dismiss? Explain.
January 08, 2012
SCOTUSblog post on the Anti-Injunction Act
SCOTUSblog has a great post on the amicus brief by Robert Long on why the Anti-Injunction Act means that the Supreme Court should postpone hearing the ACA challenge cases until after the individual mandate goes into effect in 2014.
January 07, 2012
AALS Approves Four New Member Schools
The Association of American Law Schools has approved as new members Drexel University Earl Mack School of Law, North Carolina Central University School of Law, Texas Wesleyan University School of Law, and University of St. Thomas School of Law (Minneapolis).
The story is in the National Law Journal here.