Monday, October 7, 2013
The Supreme Court kicked off this Term’s oral arguments today, only to have appellate jurisdiction crash the party. The Court had granted certiorari in Madigan v. Levin (No. 12-872) to decide a question about the interplay between claims for age discrimination under the ADEA and age discrimination claims brought directly under the Equal Protection Clause and § 1983. However, an amicus brief filed by law professors who (in the words of Lyle Denniston’s excellent argument recap) “specialize in the arcane field of court procedure” argued that the Seventh Circuit lacked appellate jurisdiction to decide that issue and, therefore, the Supreme Court should vacate the Seventh Circuit’s decision and return the case to the district court.
To give credit where credit is due, Prof. Steve Vladeck (American University) authored the amicus brief and did a terrific job. The issue attracted a lot of attention at oral argument (full transcript available here), as did a number of other issues that prompted some Justices to raise the possibility of dismissing the writ of certiorari as improvidently granted. Lyle’s recap concludes: “It would be no surprise,… based on Monday’s developments, that the Court would act quickly to get rid of the case, and leave the next stages to lower courts.”
Sunday, October 6, 2013
The ABA Journal reports that summary judgment was granted Cooley Law School's defamation suit against a law firm and bloggers who published comments criticizing the law school's reported employment statistics.
The ABA Journal report is here.
U.S. District Judge Robert J. Jonker's ruling is here.
Cooley's statement is here.
Jesse Strauss's (founding partner in defendant law firm Kurzon Strauss) statement is here.
Thursday, October 3, 2013
Wednesday, October 2, 2013
Now in print is an essay by Prof. Benjamin Spencer (Washington & Lee) entitled Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710 (2013). Here’s the abstract:
Judge Posner Admonishes District Court for Dismissing Prisoner's Complaint After Telephonic "Hearing"
The Seventh Circuit, in an opinion by Judge Posner, has ended the "unlawful" practice apparently followed in the Central District of Illinois of the district judge conducting a telephonic "merit-review hearing" shortly after the filing of a civil complaint by a pro se prisoner. In this case, a prisoner filed a pro se §1983 complaint alleging a failure of jail officials to prevent other prisoners from assaulting him. On the basis of the telephonic "hearing" with the prisoner, which was not transcribed, the district court dismissed the prisoner's complaint for failure to state a claim, stating that the plaintiff had "no evidence that the guards . . . had any knowledge of any threat made by the inmate who assaulted him."
Remarking that the "the procedure employed by the judge was inquisitorial" and had "no basis in American law other than in proceedings before some administrative agencies," the court reversed. Williams v. Wahner, No. 12-1886 (7th Cir. Oct. 1, 2013).
Tuesday, October 1, 2013
Today the Supreme Court came back from its summer recess and granted certiorari in eight cases. More information is available from Lyle Denniston at SCOTUSblog. Three of the cases raise interesting procedural issues specific to intellectual property claims:
Monday, September 30, 2013
The BLT: The Blog of LegalTimes reports that the Justice Department has released a Contingency Plan for FY 2014 (which starts tomorrow) "in the event of a lapse in appropriations" (the phrase used in the Contingency Plan). Most Civil Division employees will be subject to furlough because their activities do not relate to "emergencies involving the safety of human life or the protection of property," or meet some other category of exemption. Although the Administrative Office of the U.S. Courts has indicated "that federal courts will continue to hear and decide cases without interruption," Justice is directing its civil litigators "to approach the courts and request that acvtive cases, except for those in which posponement would compromise . . . the safety of human life or the protection of property, be postponed until funding is available."
Thursday, September 26, 2013
The federal judiciary, which has been releasing dire warnings about its financial situation for months, has just released an announcement on Third Branch News that reads:
In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.
Sunday, September 22, 2013
On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:
1. A Century of International Justice and Prospects for the Future;
2. The International Court of Justice and the International Legal System;
3. The Role of the International Court of Justice for Enhancing the Rule of Law; and
4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.
A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.
And, information about how to view the conference either by live streaming or on-demand can be found here: http://www.icj-cij.org/presscom/files/4/17534.pdf.
Wednesday, September 18, 2013
Herbert M. Kritzer, Guangya Liu, and Neil Vidmar have posted on SSRN their article An Exploration of Non-Economic Damages In Civil Jury Awards. This article is forthcoming in William & Mary Law Review.
Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of economic damages increased. We found less consistency in our simple regression models where we predicted the log of noneconomic damages from the log of economic damages. In all of those models, the slopes of the fitted line were positive, but the slopes and the measures of fit (r2) varied from dataset to dataset, and among type of case within those datasets with multiple case types. Also, where we had the same type of case across datasets, we found variation in the fit and slope. With two of the datasets we were able to extend our regression models with regard to medical malpractice cases. Using the RAND jury study from 1995-99 we were able to separate out California’s medical malpractice cases which were governed by the MICRA cap on noneconomic damages from the cases coming from five other states included in the study. We found that MICRA dampened the relationship between economic and non-economic damages. Using the data we coded from on Cook County, Illinois jury verdicts, we were able to expand our regression model to include the NAIC severity index plus the gender and age of the plaintiff. We found no evidence that the two demographic variables systematically influenced the amount of non-economic damages, but the severity of injury did make a difference. Most importantly, we found that the severity of the injury conditioned the relationship between economic and non-economic damages.
On November 15 & 16, 2013, the University of Pennsylvania Law Review is hosting a symposium entitled “The Federal Rules at 75.” It’s taking place at Penn Law School, 3501 Sansom Street, Philadelphia, PA. Registration is free for all students and scholars.
Tuesday, September 17, 2013
Here is a Call For Papers for a symposium on Social Justice and Social Media to be held at Pace Law School on March 28, 2014:
Pace Law Review will host a one-day symposium entitled Social Justice and Social Media, on March 28, 2014 on the Pace Law School campus in White Plains, NY. The Symposium will address themes concerning the interplay between social media and the administration of justice, both civil and criminal. The Pace Law Review invites (10+) page papers for inclusion in its Summer 2014 Symposium Edition. The committee will consider a broad range of topics. Selected participants will be invited to present their papers at the symposium. Travel expenses to White Plains (30 minutes outside NYC), including hotel, transportation and meals will be provided.
Submission information and key dates:
Interested persons should submit an abstract of between 250 and 300 words suitable for a 15 minute presentation and to serve as the basis of a 10+ page paper (including footnotes). Longer papers are welcomed. Submissions should be made electronically to Prof. Leslie Y. Garfield, email@example.com. Please include name, affiliation and contact details in the body of the email. Submissions should be emailed no later than October 1, 2013. Final papers submission will be due June 1, 2014.
Monday, September 16, 2013
Thursday, September 12, 2013
The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.
Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”
Here are some excerpts from Judge Colloton's opinion:
Tuesday, September 10, 2013
Of interest to devotees of the AMC show "Breaking Bad":
Purchasers of Season 5 of the show on iTunes have filed a putative class action against Apple in federal court in the Northern District of California for attempting to charge them again for the last eight episodes. The complaint is available here. Plaintiff asserts federal jurisdiction under the Class Action Fairness Act.
Monday, September 9, 2013
Reginald Sheehan, Stacia Haynie, Kirk A. Randazzo, and Donald R. Songer have posted on SSRN their article, "Winners and Losers in Appellate Court Outcomes: A Comparative Perspective."
The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.
A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable. Read more . . .