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.
December 09, 2011
"He Signed You, Bill! Now You're A Law!"
With apologies to Schoolhouse Rock for the title of this post, President Obama has signed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, covered earlier here. The law contains many significant provisions regarding federal diversity jurisdiction, removal and remand, and venue. If you’re keeping score, it amends 28 U.S.C. §§ 1332, 1391, 1404, 1441, 1446, and 1453; repeals 28 U.S.C. § 1392; and enacts new code sections 28 U.S.C. §§ 1390 and 1455.
December 04, 2011
Federal Courts Jurisdiction and Venue Clarification of Act of 2011
This week Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (H.R. 394), although it is still awaiting the President's signature. It’s a very important piece of legislation that will be significant for academics and practitioners alike.
Prawfsblawg’s Howard Wasserman (Florida International) has posted a summary of the final bill that was circulated by Arthur Hellman (Pittsburgh). If you want to keep tabs on the bill, check out the Bill Summary & Status here.
October 08, 2011
Call me naïve: I’m just hearing of ALEC’s “model” state legislation
Tipped by a Justia article by John Dean (and who knew John Dean was an advocate for “the 99%”?), I visited a web site called ALEC Exposed, maintained by the Center for Media and Democracy. ALEC is the acronym for the innocuous-sounding American Legislative Exchange Council, a corporate-funded clearinghouse that for at least a decade has been “ghost writing” business-friendly legislation that is introduced into state legislatures.
Perusing the more than 800 such “model” bills, I was quickly drawn to the category Tort Reform, Corporate Liability, and the Rights of Injured Americans. Yep, there they were – some 68 bills with familiar double-speak “tort reform” titles like "Class Actions Improvements Act," "Private Enforcement of Consumer Protection Statutes," and "Noneconomic Damage Awards Act."
September 08, 2011
Healthcare Mandate Litigation: 4th Cir Holds That It Lacks Jx to Hear Challenges
The Fourth Circuit has held that it will not hear a challenge to the constitutionality of the individual mandate because it lacks jurisdiction under the Anti-Injunction Act. In a companion case, the court held that the state of Virginia lacks standing to sue to challenge the mandate. opinion is here courtesy of the BNA. More summaries of coverage to follow.
August 07, 2011
New environmental complaint just in time for fall classes
If you like to share recently-filed complaints of interest with your incoming Civil Procedure students, here is one filed July 27, 2011 in the District of Idaho. Environmental groups bring suit against the U.S. Forest Service for failing to prepare a full Environmental Impact Statement before approving a mining exploration project located in the Boise National Forest.
The introductory portion of the complaint reads as follows:
Case 1:11-cv-00341-EJL Document 1 Filed 07/27/11
1. This action challenges the United States Forest Service’s violations of the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”) in approving the CuMo Exploration Project, a mining exploration project located on Grimes Creek in the Boise River watershed, within the Boise National Forest. The Forest Service approved the CuMo Exploration Project through a Decision Notice and Finding of No Significant Impact (“DN/FONSI”) issued by the Boise National Forest Supervisor on February 11, 2011, based on an Environmental Assessment (“EA”) also issued in February 2011.
2. As approved in the DN/FONSI, the CuMo Exploration Project will include extensive road construction and around-the-clock drilling activities over much of the next five years within habitat for sensitive wildlife species, including wolverine, northern goshawk, and great grey owl, as the applicant Mosquito Gold drills hundreds of exploration holes to evaluate whether it can develop the CuMo site into the world’s largest open pit molybdenum mine. Despite the scale and disruptive impacts of the proposed exploration activities, the Forest Service approved the CuMo Project utilizing the EA and FONSI, rather than preparing a full Environmental Impact Statement (“EIS”) as required by NEPA.
3. The Forest Service has not evaluated how sensitive species in the area may be impacted by the road construction and drilling activities, and even approved the project before necessary wildlife surveys were completed. Yet the noise, disturbance, and human presence from the mining exploration may disturb these and other wildlife species, and impair their reproductive success – potential adverse impacts which the Forest Service failed to study, quantify, or fully disclose, in violation of NEPA.
4. The Forest Service also has no idea how groundwater may be impacted by the CuMo exploration drilling, even though the extensive drilling may alter groundwater hydrology and allow groundwater and/or surface water to become contaminated with arsenic and other hazardous substances, again violating NEPA.
5. The CuMo Exploration Project will also degrade riparian habitat along Grimes Creek and tributaries. Contrary to the requirements of the Boise Forest Plan, the Forest Service approved constructing roads, drill pads, settling ponds, and other structures within Riparian Conservation Areas, in violation of the “consistency” requirement of NFMA and implementing regulations.
6. Based on these and other violations of law, Plaintiffs request that the Court reverse and remand the CuMo EA and DN/FONSI, and enter other relief as prayed for below.
(Thanks to Courthouse News Service, Environmental Law Digest)
--Patricia Hatamyar Moore
July 13, 2011
Senator Grassley Asks the ABA to Answer 31 Detailed Questions By July 25
Chuck Grassley (R-Iowa), Ranking Member of the Judiciary Committee, sent a letter on July 11 to ABA President Stephen Zack “to express concern after reading a June 9, 2011 article in The Chronicle of Higher Education that reported that the American Bar Association (ABA) 'was found to be out of compliance with 17 regulations, including the need to consider student-loan default rates in assessing programs.'” He continued:
My concern is that the ABA, which has the power to accredit law schools, was barely granted renewed recognition by the U.S. Department of Education’s accreditation experts. Moreover, in the eyes of the National Advisory Committee on Institutional Quality and Integrity, the ABA appears to be doing little to assess student-loan default rates in its law school accreditation process.
The New York Times also addressed similar issues in an April 30, 2011 article regarding what many law students interviewed by the New York Times referred to as a “bait and switch” practice regarding merit-based scholarships. According to the New York Times, ABA accredited law schools “offer more scholarships than [they] plan to renew[.]” One result of this practice is that many law students lose their merit-based scholarships after their first year because they failed to maintain a certain grade-point average. The New York Times articles raised concerns that some schools appear to set their grading curves in a manner which results in a large number of students losing their merit-based scholarships.
Senator Grassley then requested that the ABA provide written answers to 31 questions by July 25, 2011. The questions relate mainly to student financial issues such as student scholarships, loan repayment education programs, and programs to prevent default on student loans.
Some of the questions, though, relate to the number of law schools that the ABA has accredited in the last 20 years, as well as the qualifications of the accreditation committee members.
Another article about Senator Grassley’s letter appears in the National Law Journal today.
June 29, 2011
The Colbert Report on Wal-Mart v. Dukes
May 03, 2011
Bin Laden's Demise: The Civil Procedure Angle
The Blog of the Legal Times has a good post on whether Bin Laden's death will have any effect on those seeking civil redress from the harms he caused on 9/11. The short answer? Not much. From the post:
Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.
If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.
April 21, 2011
Popper on the Gulf Oil Spill and Caps on Liability
Andrew F. Popper (American University) has posted Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability to SSRN.
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
April 05, 2011
Commentary on Pleading and the Duke Lacrosse Litigation
Over at Prawfsblawg, Howard Wasserman has been examining the recent decisions by U.S. District Judge James Beaty in civil lawsuits brought by former members of the Duke lacrosse team against the City of Durham, District Attorney Michael Nifong, and numerous other defendants.
His most recent post (Pleading in the Duke lacrosse opinions) looks at what Judge Beaty's decisions have to say about pleading, including his application of Iqbal.
March 11, 2011
Witness Statements from Congressional Hearing on the Lawsuit Abuse Reduction Act
Statements from the three witnesses at today’s congressional hearing on H.R. 966 (covered earlier here) are now available. Here are the links:
Elizabeth A. Milito
NFIB Small Business Legal Center
University of Houston Law Center
Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
March 10, 2011
Congressional Hearing On Legislation To Amend FRCP 11: The Lawsuit Abuse Reduction Act (H.R. 966)
The House Judiciary Committee’s Subcommittee on the Constitution is holding a hearing tomorrow (March 11th) at 10:00 a.m. on H.R. 966. The legislation is entitled the "Lawsuit Abuse Reduction Act of 2011," and its purposes include "[t]o amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability."
Elizabeth A. Milito
NFIB Small Business Legal Center
Professor Lonny Hoffman
University of Houston Law Center
Mr. Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
If you’re in D.C. and want to check it out, the location is 2141 Rayburn House Office Building.
February 18, 2011
$7.2 Billion Law Suit for "Abusive Law Enforcement"
It's only marginally about civil procedure, but I am very amused by this whole lawsuit: R. Allen Stanford who is accused of running a "mini-Madoff" Ponzi scheme has filed a $7.2 billion lawsuit against a number of government officials for their behavior in investigating him.
Wondering what they did and why it's worth $7.2 billion? AmLaw Daily reports here.
February 10, 2011
Coming Soon To A House Subcommittee Near You?
From David Ingram at Blog of the Legal Times comes the story New Group in Congress Pushes to Change Legal System. Initiated by six members of the House of Representatives, the newly-formed Congressional Civil Justice Caucus will be promoting “an array of changes to the civil justice system, including proposals related to medical malpractice reform, venue and federal pleading standards.”
February 09, 2011
SDNY Blocks Enforcement of Ecuadorian Judgment Against Chevron
In the ongoing litigation between Chevron and plaintiffs in Ecuador, Judge Kaplan of the SDNY has already blocked enforcement of the Ecuadorian judgment in the U.S. The New York Law Journal reports here on a host of interesting issues: restraining orders, enforcement of judgments, and the use of an internal law firm memo as the basis of the action.
January 20, 2011
9/11 Litigation: Cantor Fitzgerald Overclaims for Damages
Judge Hellerstein (SDNY) has issued an opinion stating that under New York law, Cantor Fitzgerald cannot recover economic losses from the loss of its employees.
Further coverage here at the New York Law Journal.
December 06, 2010
NYTimes article highlights litigation financing
The New York Times has a feature about the burgeoning business of litigation financing. This article focuses on a firm that finances divorce litigation.
November 15, 2010
NY Times Story on Litigation Financing
Sunday’s New York Times contains an article Investors Put Money on Lawsuits to Get Payouts, which begins:
Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.
The loans are propelling large and prominent cases. Lenders including Counsel Financial, a Buffalo company financed by Citigroup, provided $35 million for the lawsuits brought by ground zero workers that were settled tentatively in June for $712.5 million. The lenders earned about $11 million.
Most investments are in the smaller cases that fill court dockets. Ardec Funding, a New York lender backed by a hedge fund, lent $45,000 in June to a Manhattan lawyer hired by the parents of a baby brain-damaged at birth. The lawyer hired two doctors, a physical therapist and an economist to testify at a July trial. The jury ordered the delivering doctor and hospital to pay the baby $510,000. Ardec is collecting interest at an annual rate of 24 percent, or $900 a month, until the award is paid.