Wednesday, March 25, 2009

Pleading and the Dilemmas of "General Rules"

Click the article title to download Pleading and the Dilemmas of General Rules, by Prof. Stephen B. Burbank.  The article will appear in the Wisconsin Law Review.  The abstract follows:

This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act's requirement of general rules, and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts the foundational assumptions that the Federal Rules are trans-substantive and that they cannot be amended by judicial interpretation. Similarly, in Iqbal, the Government presumably denies that it is calling for the imposition of a heightened fact pleading requirement in cases involving high government officials entitled to an immunity defense because the Court seems to have made it impossible for the judiciary openly to impose such a requirement other than through The Enabling Act Process. The Court may, however, take a different view of the appropriate contextual plausibility judgment than did the lower court in Iqbal. If so, however, the Court would thereby confirm the view that Twombly is an invitation to the lower courts to make ad hoc decisions reflecting buried policy choices. I therefore argue that, if the Court is persuaded that the changes already made to pleading jurisprudence are insufficient to accommodate the needs of the immunity defense, it should forthrightly require fact pleading as a matter of substantive federal common law.


March 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2009

Alternative MDL-management Method

Click the article's title to download The Quasi-Class Action Method of Managing Multi-District Litigations:  Problems and a Proposal, authored by Profs. Charles Silver and Geoffrey Miller.  The abstract follows:

This article uses three recent multi-district litigations (MDLs) that produced massive settlements -- Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million) -- to study the emerging quasi-class action approach to MDL management. The approach has four components: (1) judicial selection of lead attorneys; (2) judicial control of lead attorneys' compensation; (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees; and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These widely used procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily on the plaintiffs' side and making them responsible for plaintiffs' success. They allocate monies in ways that likely over-compensate some attorneys and under-pay others, with predictable impacts on service levels. They also lack needed grounding in substantive law because the common fund doctrine, which supports fee awards in class actions, does not apply in MDLs. Academics have not previously noted these shortcomings; this is the first scholarly assessment of the quasi-class action approach.

This article also proposes an alternative method of MDL management. It recommends the creation a plaintiffs' management committee (PMC) composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work (CBW) for all claimants and monitor the lawyers' performance. The new approach would thus use micro-incentives to organize the production of CBW in MDLs rather than judicial control and oversight. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. If enacted as a statute, the proposal would restore judges' independence, preserve lawyers' loyalties, provide the requisite legal foundation for fee awards, and encourage the fairer, more efficient, and more appropriate representation of claimants in MDLs.


March 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2009

Erie Meets the First Amendment

Howard Wasserman just posted an interesting question over at PrawfsBlawg: 

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard?

The rest of the post describes the context for his question.  To read it, click here. --RR

March 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2009

Supreme Court decides Vaden

SCOTUS Blog reports that the Supreme Court "ruled that a firm seeking to compel arbitration of a dispute may take the case to a federal District Court only if the underlying controversy could have been litigated in federal court.  A federal court has no jurisdiction, Justice Ginsburg wrote for the Court, to order arbitration of “a slice of a controversy when the controversy as a whole” would be beyond its reach."  I'll post a link to the opinion soon:  Click here to download the opinion.

The case is Vaden v. Discover Bank.  If the oral argument is any indication, the opinion will be interesting indeed.  ---RR

March 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2009


Thursday, March 5, 2009

Lack of relatedness

Ben Spencer reports here on an 11th Circuit case dismissing for want of territorial jurisdiction.  A brief preview:

Thus stated, it is apparent that the nexus between Oldfield's injury and the internet contact is too remote to satisfy the relatedness requirement. A finding that such a tenuous relationship between Pueblo's relevant contacts and the negligence of the captain who was not employed or controlled by Pueblo somehow satisfied the relatedness requirement would not only contravene the fairness principles that permeate the jurisdictional due process analysis, but would also interpret the requirement so broadly as to render it virtually meaningless.


March 5, 2009 | Permalink | Comments (0) | TrackBack (4)