Monday, November 28, 2016

Walsh on Bray on the National Injunction

Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.

 

 

 

November 28, 2016 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, November 10, 2016

Grossi on Klonoff’s Introduction to U.S. Law

The Courts Law section of JOTWELL now features Simona Grossi’s essay, Introducing U.S. Law. Simona reviews Bob Klonoff’s new book Introduction to the Study of U.S. Law (West Academic 2016).

 

 

 

November 10, 2016 in Books, Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, October 24, 2016

Vladeck on Thomas on the Missing American Jury

Today on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing in the Jury. Steve reviews Suja Thomas’s recent book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016).

 

 

 

 

October 24, 2016 in Books, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, October 12, 2016

Coleman on Rosenbaum on RICO & Class Action Warfare

Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys. Brooke reviews Briana Rosenbaum’s forthcoming Iowa Law Review article, The RICO Trend in Class Action Warfare.

 

 

 

 

October 12, 2016 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, September 23, 2016

Now on JOTWELL: Erbsen on Gilles on Arbitration & the End of Law

Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Common Law in the Age of Arbitration. Allan reviews Myriam Gilles’ recent article, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

 

 

 

September 23, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, September 9, 2016

Latest Essays on the Courts Law Section of JOTWELL

For those unfamiliar with JOTWELL, it is “a space where legal academics can go to identify, celebrate, and discuss the best new scholarship relevant to the law.” Five years ago, JOTWELL started a Courts Law section, which features scholarship on civil procedure, federal courts, and more.

Here are some of the Courts Law essays from the last few months:

April 14, 2016: Alexandra Lahav, Rethinking Civil Settlement (reviewing J.J. Prescott & Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016))

May 2, 2016: Kevin Walsh, Process Failure on the Road to Obergefell (reviewing Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016)

May 18, 2016: Adam Steinman, Fit to Be Tied (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016)).

June 1, 2016: Howard Wasserman, The Irrepressible Myth of SCOTUS (reviewing Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016))

June 29, 2016: Suzette Malveaux, Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality (reviewing David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016))

July 25, 2016: Sergio Campos, Classing Up the Agency (reviewing Administrative Conference of the United States, Aggregate Agency Adjudication, Final Report (June 9, 2016), and Administrative Conference of the United States, Administrative Conference Recommendation 2016-2, Aggregation of Similar Claims in Agency Adjudication (June 10, 2016))

August 17, 2016: Jessica Steinberg, How and Why Representation Matters (reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016))

September 9, 2016: Beth Thornburg, The Vanishing Poor (reviewing Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531 (2016))

 

 

 

 

 

September 9, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, September 7, 2016

Vazquez on the Presumption Against Extraterritoriality

Carlos Vazquez has posted on SSRN Out-Beale-Ing Beale, which was initially published in the American Society of International Law’s AJIL Unbound. Here’s the abstract:

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism — a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco, the Court has strengthened and expanded the presumption. With its decision in RJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale.

 

 

 

 

September 7, 2016 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, March 30, 2016

Now on JOTWELL: Thomas on Coleman on Efficiency

Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).

 

 

March 30, 2016 in Federal Rules of Civil Procedure, Recent Scholarship, Weblogs | Permalink | Comments (1)

Tuesday, January 12, 2016

Ninth Circuit Vacates Order to Seal Records in Chrysler Defect Case

The Ninth Circuit yesterday overturned an order to seal court records in a case involving an alleged automobile safety defect.  The Center for Auto Safety v. Chrysler Group, LLC, No. 15-55084 (9th Cir. Jan. 11, 2016). 

From the summary prepared by the court’s staff:

The panel vacated the district court’s order denying The Center for Auto Safety’s motions to intervene and unseal documents filed to support and oppose a motion for preliminary injunction in a putative class action between Chrysler Group, LLC and certain named plaintiffs, and remanded for further proceedings.

. . .

The panel presumed that the instant motion for preliminary injunction was technically nondispositive.  The panel held that public access to filed motions and their attachments did not depend on whether the motion was technically “dispositive;” but rather, public access turned on whether the motion was more than tangentially related to the merits of the case.  The panel concluded that plaintiffs’ motion for preliminary injunction was more than tangentially related to the merits.  The panel remanded for the district court to consider the documents under the compelling reasons standard.

The case is discussed on the Public Justice blog in a post by Jennifer Bennett, who argued the case for the intervenor, The Center for Auto Safety. 

Hat tip: Paul Bland, Shawn Shaughnessy

January 12, 2016 in Discovery, Recent Decisions, Weblogs | Permalink | Comments (0)

Thursday, January 7, 2016

Now on JOTWELL: Effron on Moore on the 2015 FRCP Amendments

Wednesday, December 2, 2015

July 2016 Bar Exam Would Be Earliest to Test on 2015 FRCP Amendments

Over at PrawfsBlawg, Jessica Berch reported on the announcement by the National Conference of Bar Examiners that the earliest that the latest FRCP amendments would be tested would be the July 2016 Multistate Bar Examination and Multistate Essay Examinations.

 

December 2, 2015 in Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (0)

More on the Duke Law Center and the New Discovery Proportionality Rule

To mark the effective date of the latest FRCP amendments, the American Constitution Society's blog posted a short piece by Professor Suja A. Thomas entitled Duke Law and the New Discovery Proportionality Rule.     

The piece describes the controversy surrounding the Duke Center for Judicial Studies’ so-called "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality," which we covered earlier here.

December 2, 2015 in Discovery, Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (0)

Friday, November 20, 2015

Supreme Court Mapping Project: The Collateral Order Doctrine

Over at his In Progress blog, Colin Starger has mapped out everyone’s favorite judicially-crafted exception the final judgment rule, showing “19 of the Supreme Court’s collateral order cases using a modified Spaeth Projection.” 

 

 

 

November 20, 2015 in Federal Courts, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, July 27, 2015

Levy on Huq on the Rationing of Constitutional Remedies

This month’s essay on the Courts Law section of JOTWELL is Rationing Constitutional Justice by Marin Levy. Marin reviews Aziz Huq’s recent article, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. (forthcoming 2015). 

 

 

July 27, 2015 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, June 9, 2015

Thornburg on Schwartz on Litigation and Organizational Introspection

Now available on the Courts Law section of JOTWELL is an essay by Beth Thornburg entitled Discovery and Self-Improvement. Beth reviews Joanna Schwartz’s recent article, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055 (2015).

 

 

June 9, 2015 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, June 4, 2015

Professor Nathenson Posts New Civil Procedure Resources For the Bar Exam

Know anyone studying for the bar exam who needs help in Civil Procedure?  My esteemed colleague, Professor Ira Nathenson (a member of the Executive Committee of the AALS Section of Civil Procedure, as well as its webmaster and co-manager of the CivProMentor listserv), has recently posted some fine resources on his website. 

Professor Nathenson’s site includes a Resources page for Civil Procedure on the Multistate Bar Examination (MBE).  The resources include numerous Civil Procedure YouTube videos as well as problem sets, explanations, flowcharts, and handouts.  (If you thought that the Erie doctrine could not be reduced to a flow chart, check out his Coggle flowchart here.) 

The substantive materials are grouped by topic (such as subject-matter jurisdiction, personal jurisdiction, joinder, and much more), allowing you to zero in on Civ Pro issues of interest. Many of the YouTube videos are annotated, pointing you to related resources. The site also includes an overview of which Civ Pro topics topics are more likely to be tested. 

As most people in the US legal world know by now, federal Civil Procedure was added to the Multistate Bar Examination only recently.  It was first tested on the MBE during the February 2015 administration.  Professor Nathenson's excellent materials should help to ease the panic for some new graduates preparing for the bar. 

June 4, 2015 in Web/Tech, Weblogs | Permalink | Comments (0)

Tuesday, May 12, 2015

Coleman PrawfsBlawg Post on Amending Rule 23

Brooke Coleman has a post today over on PrawfsBlawg called "Civil Rule 23 -- To Amend or Not to Amend?"

She summarizes three of the “conceptual sketches” that the Rule 23 Subcommittee of the Civil Rules Advisory Committee is currently considering.

May 12, 2015 in Class Actions, Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (0)

Tuesday, April 14, 2015

Campos on Davis on Standing and State Action

Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).

 

 

April 14, 2015 in Federal Courts, Recent Scholarship, Standing, Weblogs | Permalink | Comments (0)

Thursday, April 2, 2015

Mullenix on Robreno on Litigation's Black Hole

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).

 

 

April 2, 2015 in Mass Torts, MDLs, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, March 18, 2015

Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)

Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.

These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”

Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”

I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Continue reading

March 18, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal, Weblogs | Permalink | Comments (2)