Friday, February 14, 2014
Over on the ACS blog is a post by Prof. Brooke Coleman (Seattle) entitled The Real Cost of Litigation Reform: Justice, Not Discovery Costs, Are at Stake, which discusses the current proposals to amend the discovery provisions of the Federal Rules of Civil Procedure. It concludes:
Our litigation system necessarily costs money. But, the purpose of the system is to achieve justice. No doubt, the costs should be contained as much as possible, but that containment should be achieved without sacrificing basic access to our federal system of courts. The proposed discovery rules incentivize producing parties to hold back information that is necessary to get to the truth, and they further burden requesting parties with proving that they need materials before they can even know what that information is. These proposals may make CEOs and general counsels feel more sanguine about the bottom line of their litigation costs, but they should provoke a great amount of dread in the rest of us. Corporations are less likely to be held accountable for their misdeeds if these changes are made. That cost alone renders the current litigation reform proposals unjustified.
Wednesday, November 6, 2013
Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:
- Emily Bazelon, Slate: Shut Up, Judge!
- Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
- Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
- The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)
More coverage here.
Sunday, November 3, 2013
We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:
- Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
- Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
- Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
- Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps
Tuesday, October 8, 2013
Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander (Northwestern) entitled James Wilson, the Committee of Detail, and the Federal Judiciary. It reviews a recent article by William Ewald (U. Penn.), The Committee of Detail, 28 Const. Comment. 197 (2012).
Monday, October 7, 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:
Wednesday, June 12, 2013
It’s a quick read at <3 pages, where “<3” actually means “less than 3” as opposed to a sideways emoticon heart.
Friday, May 31, 2013
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos (Miami) entitled Back to the Future. It reviews a recent article by Robert Jones (Northern Illinois), Lessons from a Lost Constitution, 27 J. L. & Politics 459 (2012).
Friday, May 17, 2013
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.
Friday, May 3, 2013
Over at Balkinization, Prof. Jack Balkin (Yale) has a post entitled Erie Railroad v. Tompkins and the New Deal Constitution. It begins:
Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products. The video is available here. Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55. I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.
Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint. Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent. If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different. It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.
Wednesday, May 1, 2013
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).
Tuesday, April 16, 2013
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.
Friday, April 12, 2013
Professor Richard Epstein (NYU) has a post on PointofLaw.com entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:
The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.
Friday, March 29, 2013
This week the U.S. Court of Military Commission Review denied petitions for writs of mandamus filed by the ACLU (order here) and a group of several media outlets (order here) in connection with the military commission trials at Guantanamo Bay, Cuba. The petitions were filed under the All Writs Act [28 U.S.C. § 1651(a)], and challenged a protective order issued by the Military Commission Judge. Among other things, the protective order authorizes automatic closure of proceedings and sealing of records whenever classified information is disclosed, even if the information is publicly known, and prohibits personal testimony by the defendants about their experiences while in U.S. custody.
The Court’s order does not address the merits of the petitioners’ arguments, or whether the All Writs Act is properly invoked in this context. Rather, it concludes that the case “is not ripe for our review.” From the order regarding the media petitioners:
This controversy is not ripe for our review. The judge has issued a protective order in accordance with Military Commission Act (MCA) Sec. 949p-3, 10 U.S.C. §949p-3. Petitioners have not alleged a single instance where the Military Commission Judge has improperly applied Amended Protective Order #1 to deny Petitioners access to information, sufficient to warrant the sort of extraordinary relief petitioners seek. See MCA Sec. 949d(c). See generally Clapper v. Amnesty International, 133 S. Ct. 1138 (2013); Cheney v. United States, 542 U.S. 367 (2004); Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (discussing classified information and Freedom of Information Act).
We emphasize the limited scope of our holding. We are not ruling on the merits of the parties claim that there is writ jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a).
Judge Silliman authored a concurring opinion urging the Court to address whether it has jurisdiction under the All Writs Act and arguing that 28 U.S.C. § 2241(e)(2) “explicitly stripped our Court of such jurisdiction.”
Steve Vladeck (American University) has more coverage at Lawfare.
Wednesday, March 13, 2013
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).
Monday, February 25, 2013
Here’s some more coverage of last week’s Supreme Court decision in Gunn v. Minton, which addresses Grable and federal question jurisdiction:
- Prof. Josh Blackman (South Texas)
- Prof. Rodger Citron (Touro), Justia
- Prof. Ronald Mann (Columbia), SCOTUSblog
Monday, February 11, 2013
Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh (Richmond) entitled Building the Federal Judiciary. It reviews a recent book by Justin Crowe (Williams College, Political Science), Building the Judiciary: Law, Courts, and the Politics of Institutional Development, Princeton University Press. Kevin’s review begins:
Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.
Wednesday, January 23, 2013
Now available on the Courts Law section of JOTWELL is an essay by Alexandra Lahav (Connecticut) entitled Economic Analysis of Personal Jurisdiction. It reviews an article by Daniel Klerman (Southern California), Personal Jurisdiction and Product Liability, 85 S. Cal. L. Rev. ___ (forthcoming 2013).
Tuesday, January 22, 2013
Over at SCOTUSblog, Prof. Marty Lederman (Georgetown) has a deep dive into the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). Links to the entire series—Understanding standing: The Court’s Article III questions in the same-sex marriage cases—below:
Friday, January 18, 2013
Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).