Wednesday, March 25, 2009
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:
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.
Thursday, March 19, 2009
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 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.
Tuesday, March 17, 2009
Howard Wasserman just posted an interesting question over at PrawfsBlawg:
The rest of the post describes the context for his question. To read it, click here. --RR
Monday, March 9, 2009
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
Friday, March 6, 2009
Thursday, March 5, 2009
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.