Civil Procedure & Federal Courts Blog

Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal

Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.

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Strong on Commercial Arbitration

S.I. Strong (Missouri/Supreme Court Fellow) has posted two articles about international commercial arbitration to SSRN.

Beyond the Self-Execution Analysis:  Rationalizing Constitutional, Treaty and Statutory Interpretation in International Commercial Arbitration.  

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States.

Efforts have been made to place the debate about the New York Convention within the context of post-Medellin jurisprudence concerning self-executing treaties. However, that framework does not adequately address the difficult constitutional question as to what course should be adopted when a particular issue is governed by both a treaty and a statute that is meant to incorporate that treaty into domestic law.

This Article addresses that question by considering the role of and relationship between the New York Convention and the Federal Arbitration Act, and by providing a robust analysis of the constitutional, statutory and public international issues that arise in cases involving international treaties and incorporative statues. Although the discussion is rooted in the context of international commercial arbitration, the Article provides important theoretical and practical insights that are equally applicable in other types of public international law.

Discovery Under 28 U.S.C. §1782:  Distinguishing International Commercial Arbitration and International Investment Arbitration.

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to distinguish between requests made in the context of international commercial arbitration and requests made in the context of international investment arbitration. In so doing, the Article considers issues relating to grants of jurisdiction, state interests and standard interpretive canons.

RJE

 

 

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.

PM

Tidmarsh on Lemos & Hensler on Adequate Representation in Parens Patriae Suits by State A-Gs

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).

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Boyd et al. on Clusters of Causes of Action in Federal Complaints

            The Journal of Empirical Legal Studies has published online an article by Christina L. Boyd, David A. Hoffman, Zoran Obradovic, and Kosta Ristovsk entitled "Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints."

            Abstract:

This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court data set of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to lay the foundation for a more precise and useful taxonomy of federal litigation than has been previously available, one that, after the Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), has also arguably never been more relevant than it is today.

PM

Dodge on Disaggregative Mechanisms

Jaime Dodge (University of Georgia) has posted Disaggregative Mechanisms: The New Frontier of Mass-Claims Resolution Without Class Actions to SSRN.

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of common questions that has been the hallmark of traditional mass claims litigation. Disaggregation returns to a focus on the individual akin to that of the single-plaintiff system, but uses either procedural or substantive streamlining, or a shift of costs to the defendant, to correct the asymmetries that prompted the creation of class actions. Many of our most innovative claims structures — from the BP GCCF and the fund created in the wake of the Costa Concordia disaster, to the common single-plaintiff arbitration clauses in consumer and employment agreements — use this new, bottom-up model of disaggregative mass claims resolution instead of the familiar top-down aggregative model.

These next-generation systems have been heralded as a significant advancement in mass claims resolution, capable of awarding more compensation to claimants more quickly and at lower cost than aggregate litigation. But like the single-plaintiff and aggregate litigation systems that preceded it, disaggregation has its flaws. Because the defendant typically designs these systems, they often give rise to questions about legitimacy and the accuracy of compensation. More shockingly, situating disaggregation within the existing doctrinal trends reveals that the rise of disaggregation allows corporations to avoid class actions in a far broader swath of cases than has previously been identified — such that class actions will, as a practical matter, proceed only at the defendant’s election, raising substantial questions about the viability of private actions as a mechanism for the enforcement of law. Yet, because these systems are the product of contract, attempts to restrict these systems have largely failed. The answer to these problems lies in an unlikely and potentially controversial approach: expanding rather than restricting the availability of disaggregation, by creating a public mechanism for disaggregation — comparable to the existing public aggregation mechanisms.

RJE

Miller on the Deformation of Federal Civil Procedure

Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:

When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.

The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.

All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.

Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

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Mullenix on Sachs on Personal Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix (Texas) entitled Fixing Personal Jurisdiction. It reviews a recent article by Stephen Sachs (Duke), How Congress Should Fix Personal Jurisdiction.

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Grimmelman on Future Conduct and Class Actions

James Grimmelman (New York Law School) has posted Future Conduct and the Limits of Class-Action Settlements to SSRN.

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.

RJE

Andrews and Newman on Personal Jurisdiction in the Cloud

Damon Andrews and John Newman have posted Personal Jurisdiction and Choice of Law in the Cloud to SSRN.

Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.

Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.

RJE

Erichson on Settlement Class Actions

Professor Howard Erichson (Fordham) has posted on SSRN a draft of his article, The Problem of Settlement Class Actions. Here’s the abstract:

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this article contends that if a dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication regardless of settlement.

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Seiner on Wal-Mart v. Dukes

Professor Joe Seiner (South Carolina) has posted on SSRN a draft of his article, Weathering Wal-Mart, which will be published in the Notre Dame Law Review. Here’s the abstract:

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date, and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.

Instead, this Article attempts — for the first time — to find a solution to the problem created by Wal-Mart. The academic literature has yet to explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class-action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This paper offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This paper also situates these proposals in the context of the existing literature.

The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this paper asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass-employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. For the first time in the academic literature, this Article takes on that challenge.

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Moore on Confronting the Myth of "State Court Class Action Abuses"

In the shameless self-promotion category . . .

I have posted on SSRN a draft of my article "Confronting the Myth of 'State Court Class Action Abuses' Through an Understanding of Heuristics and a Plea for More Statistics."  The paper has been accepted for publication in the UMKC Law Review, Volume 82, No. 1 (2013).

Abstract:

      The Supreme Court heard five cases involving class actions this term.  One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time.  Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" should justify removal of the case (which was based on state law and filed in state court) to federal court. 

      The charge of "state court class action abuses" echoes the same rhetoric that CAFA's supporters used in their ultimately successful efforts to pass the legislation.  Hyperbolic assertions of a "flood of state court class actions" in which plaintiffs' lawyers were "abusing" the limits of diversity jurisdiction to keep cases in state court, and state courts were "abusing" the class action device by granting "drive-by" class certifications, fill the pages of CAFA's legislative history.

        Unfortunately for the quality of the debate, then and now, no current data and very little past data about class actions are readily and publicly available, for federal or state courts.  In other words, courts in the United States offer no data on such basic questions as the number of cases filed as class actions, the percentage of cases designated as class actions that are eventually certified as such, or the ultimate disposition of such cases.  

        To be sure, the herculean efforts of the Federal Judicial Center, the California Office of Court Research, and private academic researchers have resulted in the compilation of databases that provided partial answers to some of these questions.  But these limited efforts are well beyond the resources and skill available to the public, the press, and even to most policy-makers and the Court. 

      What does the lack of baseline data on class actions mean?  A wealth of psychological research has shown that human cognition and judgment are subject to a variety of heuristics and biases.  For example, the mantra of "state court class action abuses" has a "priming effect" making it easier to see or imagine such "abuses."  Further, the mind automatically attempts to create a coherent story out of the information it has, even if that information is incomplete or invalid.  This manifests itself in many ways, including the "anchoring effect," the "availability heuristic," and the "representativeness heuristic," which are exploited by those spreading the myth of "state court class action abuses."  Even if a person knew the base rate of class action filings or dispositions, for example, the "representativeness heuristic" would make it difficult to avoid making judgments about class actions based on negative stereotypical anecdotes.  Without such base rates available at all, it will be almost impossible.  One can only hope that the Court will resist the lure of class action mythology as it considers the five class action cases pending this term.

PM

Goldberg on Article III standing in the SCOTUS same-sex marriage cases (Perry and Windsor)

The University of Pennsylvania Law Review Online has a featured essay by Suzanne B. Goldberg (Columbia) entitled Article III Double-Dipping: Proposition 8's Sponsors, BLAG, and the Government's Interest. It begins:

A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act in the name of the Bipartisan Legal Advisory Group. Not only are these parties not clearly authorized by the appropriate legislative bodies to pursue such actions, but there are two more fundamental difficulties with the Perry petitioners’ and BLAG’s claims to standing. First, each presents the Article III double-dipping problem to which this Essay’s title refers. The problem arises because there are parties asserting the government’s interest and, therefore, the government’s standing, on both sides of each case. The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government’s standing derives from its interest in enforcing its laws, which is not an interest shared by either group. In this essay, I argue that both the double-dipping problem and the limits on a government’s ability to transfer its standing to private actors in this context leave Proposition 8’s sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the “concrete and particularized” stake it would need to have standing in its own right rather than on the government’s behalf. In short, neither party can answer the Supreme Court’s question in the affirmative.

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Erbsen on Cheng on Aggregate Litigation and Sampling

Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen (Minnesota) entitled Seeking Accuracy in Aggregate in Litigation. It reviews a recent article by Edward Cheng (Vanderbilt), When 10 Trials Are Better Than 1000: An Evidentiary Perspective on Trial Sampling, 160 U. Pa. L. Rev. 955 (2012).

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Stanford Journal of Complex Litigation: Call for Articles and Peer Reviewers

See announcement below:

The Stanford Journal of Complex Litigation is seeking articles for Volume 2 of the Journal. The Journal publishes articles and essays that are timely and make a significant, original contribution to the field of complex litigation. The Journal publishes scholarship on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, and transnational litigation. Published articles not only address issues pertinent to complex litigation practice, but also comment on theoretical aspects of the law.

The Stanford Journal of Complex Litigation prefers to accept submissions through ExpressO. However, submissions may also be sent directly to sjcl_editors@lists.stanford.edu. All submissions should be in Microsoft Word format. PDF and other text formats are not accepted. The text and citations of submissions should generally conform to The Bluebook: A Uniform System of Citation (19th ed. 2010). Submissions should also include a brief abstract and a resume or CV. Cover letters are not required but are permitted. The Stanford Journal of Complex Litigation has a word limit of 30,000 words (including footnotes), and a preference for 25,000 words or fewer.

The Stanford Journal of Complex Litigation is a peer-reviewed journal, meaning all final decisions regarding publication offers are made by a panel of anonymous faculty reviewers. To that end, the Journal is continually looking for more peer reviewers. If you are interested in serving as a reviewer, please contact: sjcl_editors@lists.stanford.edu.

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Grossi on Gunn v. Minton

Professor Simona Grossi (Loyola Los Angeles) has posted on SSRN a draft of her article, Federal Question Jurisdiction: The Compass, the Maze and the Trap. Here’s the abstract:

On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.

The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. 

The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.

In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the Court’s most recent decisions. Here I examine the fundamental-principles compass that was developed by the Court in foundational arising-under cases, and synthesized succinctly by Justice Cardozo in Gully v. First Nat. Bank in Meridian. There the Court endorsed a unified jurisdictional theory that focused on the role of the federal issue in the case, asking whether the case was truly about federal law, for if the case was truly about federal law, the exercise of jurisdiction would be inherently consistent with congressional intent to provide a forum for federal question cases.

With this fundamental-principles model as my foundation, I then examine more recent arising-under cases and show that, beginning in the 1980s, the compass got lost and was replaced by a maze of increasingly complex doctrinal tests disconnected from logical and well-established jurisdictional principles. Here the focus shifted from the federal nature of the controversy to a policy-driven model weighted heavily toward case-management concerns.

Gunn offered the Supreme Court an opportunity to recapture the compass or, at the very least, to provide a comprehensible map that would assist lower federal courts in navigating the judicially created maze. The Court, however, missed that opportunity. Instead, the Court continued along a meandering doctrinal path that diverges from the fundamental principles of jurisdiction and often leads to results inconsistent with the congressionally mandated goal of providing a federal forum for the interpretation and application of the principles of federal law.

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Sherry on Why Courts Can't Fix Erie

Suzanna Sherry (Vanderbilt) has posted A Pox on Both Your Houses: Why the Courts Can't Fix the Erie Doctrine to SSRN.

As Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie doctrine and between it and the Federal Rules of Civil Procedure. The Court’s latest Erie decision, Shady Grove, was yet another attempt to separate substance from procedure and navigate the strait between the Rules of Decision Act and the Rules Enabling Act. It was a disaster, in large part because of the internal incoherence of the Erie doctrine itself and its profound incompatibility with the guiding principles of the Federal Rules of Civil Procedure. Shady Grove thus brings to the forefront the need for a normative choice between federal procedural uniformity and transsubstantivity on the one hand, and state authority on the other. I suggest that instead of filtering that normative choice through the convoluted and self-contradictory Erie doctrine, judges should confront it directly as they do in other contexts (including most prominently preemption doctrine). This suggestion in turn has implications far beyond the narrow Shady Grove issue.

 

RJE

Article contends co-authored pieces have more impact than solo-author pieces

This is obviously not Civil Procedure-centered, but I thought it was interesting for those of us who periodically participate in faculty hiring or promotion decisions in which the subject of co-authored pieces comes up.

Christopher Anthony Cotropia and Lee Petherbridge have posted on SSRN their paper, "The Dominance of Teams in the Production of Legal Knowledge."

Abstract:     
Using a database that contains over 19,000 law review articles published in top 100 law reviews between 1990 and 2010, we demonstrate that team authors dominate solo authors in the production of legal knowledge. Team research is on average more frequently cited than individual research, and teams are more likely than individuals to produce exceptionally high impact research. These results suggest that a legal research culture that encourages cooperativity and collaboration could foster an intellectual connectedness helpful to improving the quality of knowledge production by legal academics.

PM

Symeonides' 26th Annual Choice-of-Law Survey

Symeon Symeonides (Willamette) has posted on SSRN his Twenty-Sixth Annual Survey of American Choice-of-Law Cases, which will be published in the American Journal of Comparative Law. Here’s the abstract:

This is the Twenty-Sixth Annual Survey of American Choice-of-Law Cases. It is intended as a service to fellow teachers and students of conflicts law, in the United States and abroad.

Of the 4,300 cases decided in 2012 by state and federal courts, this Survey reviews 1,225 appellate cases, focusing on those cases that may contribute something new to the development or understanding of conflicts law, particularly choice of law. Highlights include:

▸  Numerous cases exemplifying the valiant efforts of state courts, and some lower federal courts, to protect consumers, employees, and other presumptively weak parties from the Supreme Court’s ever-expanding interpretation of the Federal Arbitration Act;

▸  A few cases enforcing choice-of-law clauses unfavorable to their drafters, and many more cases involving deadly combinations of choice-of-law and choice-of-forum clauses;

▸  Several interesting products liability cases, and other tort conflicts, including maritime torts and workers’ compensation claims by professional football players;

▸  The first appellate case interpreting the recent amendments of the anti-terrorism exception to the Foreign Sovereign Immunity Act (FSIA);

▸  The first cases holding unconstitutional the Defense of Marriage Act (DOMA);

▸  A Massachusetts case holding that an undissolved Vermont same-sex union was an impediment to a subsequent same-sex marriage in Massachusetts; 

▸  An Arizona case holding that a Canadian same-sex marriage was against Arizona’s public policy, but—unlike other cases—also holding that the trial court had jurisdiction to annul the marriage and divide the parties’ property;

▸  The first case in decades upholding a foreign marriage by proxy;

▸  A case upholding, on First Amendment grounds, an injunction against Oklahoma’s “Anti-Shari’a” Amendment; and

▸  A case refusing to recognize a Japanese divorce, custody, and child support judgment rendered in a bilateral proceeding because the husband did not receive notice of a subsequent guardianship proceeding.

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