Tuesday, November 17, 2009

Hot Off The Presses: Recent Articles Of Interest

With a hat tip to the latest installment of the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Dustin E. Buehler, Revisiting Rooker-Feldman: Extending the Doctrine to State Court Interlocutory Orders, 36 Fla. St. U. L. Rev. 373 (2009)

Paul E. Lund, Federally Chartered Corporations and Federal Jurisdiction, 36 Fla. St. U. L. Rev. 317 (2009)

A. Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1 (2009)

S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?, 30 Mich. J. Int'l L. 1017 (2009)

Edmund Ursin, How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking, 57 Buff. L. Rev. 1267 (2009).


November 17, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Amended Settlement Agreement in Google Book Class Action

As covered earlier here, the FRCP 23(e) fairness hearing on the controversial settlement in the Google Book class action -- originally scheduled for last month -- was postponed by U.S. District Judge Denny Chin. The reason was "ongoing negotiations with the Department of Justice that, according to plaintiffs, will result in significant changes to the existing settlement agreement."

The amended settlement agreement that resulted from these negotiations was submitted last Friday and is available here.

For coverage of the amended settlement agreement, see Concurring Opinions, CNET, Financial Times.

Filings in the case (The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.)) can be accessed via Justia or Pacer.

Other good resources on the case include the website of the Settlement AdministratorWikipedia and The Public Index (a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School).


November 16, 2009 in Class Actions | Permalink | Comments (0) | TrackBack (0)

Administrative procedure in Europe

Anne Meuwese, Ymre Schuurmans, and Wim J. M. Voermans, have posted Towards a European Administrative Procedure Act on SSRN.

Under the joint responsibility of the Member States to implement EU law, administrative law systems of the EU are converging and a common body of EU administrative law is emerging. Most debates on this process of EU administrative law integration have focused on differences and divergences between national systems vis-à-vis the EU system. The concept of administration at the level of the EU, however, is difficult to compare to that in use in most domestic systems in continental Europe. In this contribution we bring the lens of the United States (U.S.) approach to the debate. The problems and challenges the EU administration faces do resemble those which confronted the federal administration in the U.S. more than 50 years ago. The article discusses some of the parallels between the U.S. and EU system and zooms in on the EU’s ‘problem zones’: preparation of regulation – in particular the role of participation and the use of evidence therein – and the position of agencies. On the basis of experiences with the Administrative Procedure Act (APA) in controlling the U.S. administration and the federal agencies, the contribution then reflects on the desirability of a general EU administrative law act, especially in view of the upcoming extension of judicial review of general rules the Lisbon Treaty will most likely bring. The conclusion is in short that the American APA offers food for European thought and that a lot could be gained with a European styled APA ‘light version’.


November 16, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Geyh on Judicial Independence

Charles G. Geyh (Indiana University Bloomington School of Law) has posted "Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence" on SSRN.  It will be published in the Notre Dame Journal of Law, Ethics and Public Policy.

The abstract states:

In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.


November 16, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 15, 2009

Burger King franchisees strike back

The franchisees are suing over losses stemming from the $1 menu promotion.
Perhaps, hidden somewhere down the road, another civil procedure issue is in the making!


November 15, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Saturday, November 14, 2009

Conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court"

George Washington University Law School is hosting a conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court" on November 20, 2009.  The conference website states:

This conference explores laws governing the structure and operation of the Supreme Court, which is the next step in the work begun by Professors Paul Carrington and Roger Cramton, to encourage the political branches to take a serious look at those issues for the first time since the 1920s.  They have been assisted in planning this conference by Daniel Meador, Judith Resnik, George Liebmann, and Alan Morrison.

Speakers include Daniel Meador, Stephen Burbank, Amanda Tyler, Judith Resnik, Linda Greenhouse, Lee Epstein, David Levi, George Liebmann, Gerald Tjoflat, William Marshall, Kenneth Starr, Mark Harrison, Gilbert Merritt, Charles Geyh, and Russel Wheeler.

The conference website is here.  
The conference agenda is here.  
Links to conference papers may be found here.


November 14, 2009 in Conferences/Symposia, Federal Courts | Permalink | Comments (0) | TrackBack (0)

Friday, November 13, 2009

Coverage of SCOTUS Argument in Hertz Corp. v. Friend (Where Is a Corporation's Principal Place of Business?)

One notable event during this oral argument (previewed here and covered here) was this exchange between Chief Justice Roberts and respondent's counsel:

MR. SCHNEIDER: Mr. Chief Justice, did the Court have interest in the jurisdictional argument?



CHIEF JUSTICE ROBERTS: I can only speak for one member of the Court, and that one doesn't.

The Blog of Legal Times has coverage here ("Lawyer Learns that Roberts Speaks Only for Himself").

The "jurisdictional argument" to which respondent's counsel referred appears in two paragraphs at the very beginning of respondent's brief. The theory is that Supreme Court review is precluded by 28 U.S.C. § 1447(d), because CAFA's exception to 1447(d)'s bar on review of remand orders (28 U.S.C. § 1453(c)) does not explicitly allow for Supreme Court review. Here's the relevant text from respondent's brief:

Respondents dispute Petitioner’s assertion that appellate jurisdiction exists here pursuant to 28 U.S.C. § 1254. Generally, there is no appellate review of a district court order remanding a case for lack of subject matter jurisdiction. 28 U.S.C. § 1447(d); Carlsbad Tech., Inc. v. HIF BIO, Inc., 129 S. Ct. 1862, 1866 (2009). This prohibition manifests a long-standing Congressional policy opposing “interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court.” See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. 633, 640 (2006).

The Class Action Fairness Act (“CAFA”) created a limited exception, codified at 28 U.S.C. § 1453(c), which provides only a 70-day window in which an appeal must be brought to final judgment. 28 U.S.C. § 1453(c)(4) (“If a final judgment on appeal under paragraph (1) is not issued before the end of [70 days], the appeal shall be denied”). However, nothing in that section provides for additional review by this Court. There is no tension between applying § 1453(c)’s limited window of appellate review and holding that § 1447(d)’s prohibition of appellate review applies thereafter; the express language of § 1453(c) and the legislative history confirm that is what Congress intended. See 28 U.S.C. § 1453(c)(1) (stating that § 1447 applies to CAFA remands, excepting the limited appeal provided elsewhere in § 1453). Here, appellate jurisdiction terminated, at the latest, 70 days after the appeal was docketed by the Ninth Circuit (i.e., November 4, 2008).

For additional coverage of the argument, see the National Law Journal and SCOTUSblog.

(Hat Tip: Beth Thornburg)


November 13, 2009 in Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, November 12, 2009

9th Circuit rules on appointment of counsel under the PSLRA

The Ninth Circuit has ruled in Cohen v. Northern District of California, 2009 WL 3681701, that the PSLRA gives district judges the authority to appoint the lead plaintiff in securities class actions, but that this power does not extend to appointing lead counsel.  The American Lawyer reports here.


November 12, 2009 in Class Actions, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Civil Procedure Section Program at the AALS Annual Meeting

In case you missed it on the civ pro listserv, Professor Patrick Woolley provided this information about the Civil Procedure Section program at the AALS Annual Meeting:

The civil procedure program at the annual meeting will be held on Friday, January 8, beginning at 10:15 a.m.  The program is entitled “Revisiting Discovery.”   The papers selected for the program will address  the role of discovery in the context of the litigation system as a whole.  In fact, I expect that  much of the discussion by panelists (and comments  from the audience) will be about the  meaning and impact of Twombly and Iqbal. 

Our three presenters will be   (1) Suzette Malveaux, Frontloading and Heavy Lifting: The Evolving Role of Discovery in Contemporary Civil Rights Litigation, (2) Steven Gensler, Procedure a la Carte, and (3) Adam Steinman, Why Discovery Management Still Matters After Iqbal (and How It Might be Improved).    Lonny Hoffman will moderate.


November 12, 2009 in Conferences/Symposia, Discovery, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Rotunda on Procedural Rules for Military Trials

Professor Kyndra K. Rotunda (Chapman University School of Law) has posted "A Comparative Historical Analysis of War Time Procedural Protections and Presidential Powers: From the Civil War to the War on Terror" on SSRN.  It will be published in the Chapman Law Review.


This article analyzes and compares procedural rules governing military trials from the American Revolution to the War on Terror. It discusses and analyzes Presidential power during war time, particularly in light of recent Supreme Court cases concerning detainees held in Guantanamo Bay.


November 12, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Erichson: Reflections on the Adjudication-Settlement Divide

Professor Howard Erichson (Fordham) has posted on SSRN Forward: Reflections on the Adjudication-Settlement Divide, 78 Fordham L. Rev. (2009). Here's the abstract:

This Foreword introduces the papers of the 2009 Fordham Law Review symposium, Against Settlement: Twenty-Five Years Later. The symposium reconsiders the arguments in Owen Fiss's 1984 article, Against Settlement, The Foreword explores two themes. First, it asks whether the values urged by Fiss may be achieved only by adjudication, or whether those same values may be advanced through negotiated resolutions. Second, it examines the surprisingly hard-to-define border between adjudication and settlement in contexts that involve judicial supervision of settlements.


November 11, 2009 in Conferences/Symposia, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Fitzpatrick on The Politics of Merit Selection

Professor Brian T. Fitzpatrick (Vanderbilt Law School) has posted "The Politics of Merit Selection" on SSRN.  It will be published in the Missouri Law Review.  


In this Article, I undertake an evaluation of a method of judicial selection known as “merit selection.” The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection — elections or appointment by elected officials — because lawyers are more likely to select judges on the basis of “merit” and less likely to select judges on the basis of “politics” (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But even if lawyers are better able to identify more intelligent or more qualified judges, it does not follow that they are less inclined to consider the political beliefs of judicial candidates. Lawyers are just as likely to be concerned — if not more concerned — with the decisional propensities of judicial candidates as are voters and elected officials. Moreover, insofar as a judge’s personal ideological preferences are correlated with his or her decisions, and insofar as those preferences are often more easily observed than his or her decisional propensities, lawyers are likely to accord those preferences just as much weight as voters or elected officials. That is, merit selection may not remove politics from judicial selection so much as it moves the politics of judicial selection into closer alignment with the ideological preferences of the bar. This movement could have consequences if the distribution of ideological preferences within the bar differs from the distribution among the public. Many people believe that lawyers as a group are, on average, more liberal than are members of the general public. If this is true, then one might expect that bar associations would select judges who are more liberal than those who would have been selected by the public or their elected representatives. Although far from conclusive, I collected data on the judicial nominations in two merit states, Tennessee and Missouri, and the data is consistent with this hypothesis.


November 11, 2009 in Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)

Judicial reform in France

The Sarkozy government is planning to reform the judiciary in France, eliminating many of the investigative powers of magistrate judges and giving more power to prosecutors.  The AP reports on the proposed changes here, however, the article does not make explicit that these reforms are limited to judges in criminal cases.  Nonetheless, this change would mark a significant change in the role that judges play in one of the world's archetypal civil law systems.

For those of you brave enough to read about the reports en français, Le Monde reports here about the most recent developments.  For an earlier and more pointed commentary (also in French), there is this post in L'Express suggesting that Sarkozy is a latter day Napoleon (in the code sense).


November 11, 2009 in In the News, International Courts, International/Comparative Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Today's SCOTUS argument in Hertz Corp. v. Friend: Where is a corporation's "principal place of business"?

As previewed earlier here, Hertz Corp. v. Friend presents the question of how to determine a corporation's principal place of business for purposes of diversity jurisdiction.

The transcript from today's oral argument is available here.


PS: Numerologists among you will enjoy the fact that the number for this case on the Supreme Court docket is 08-1107, and the argument began at exactly 11:07 am. (Too bad the argument didn't happen on 11/07.)

November 10, 2009 in Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Monday, November 9, 2009

Hot Off The Presses: Recent Articles of Interest

With a hat tip to last week's Current Index of Legal Periodicals, here are some recent publications that may be of interest:

Anthony V. Alfieri, Jim Crow Ethics and the Defense of the Jena Six, 94 Iowa L. Rev. 1651 (2009)

Charles M. Cameron & Jee-Kwang Park, How Will They Vote? Predicting Future Behavior of Supreme Court Nominees, 1937-2006, 6 J. Empirical Legal Stud. 485 (2009)

Shari Seidman Diamond, Destiny Peery, Francis J. Dolan & Emily Dolan, Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 J. Empirical Legal Stud. 425 (2009)

Gaurav Jetley & Zaur Rzakhanov, The Effect of Statutory Indemnity on Securities Class Action Settlements: A First Look, 14 Stan. J.L. Bus. & Fin. 305 (2009)

Jeffrey W. Stempel, Chief William's Ghost: The Problematic Persistence of the Duty to Sit, 57 Buff. L. Rev. 813 (2009)


November 9, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

2009 Jahre Mauerfall: Fest der Freiheit

OK, I admit, this is not civil procedure!  I'm in Berlin to celebrate 20 years since the fall of the Berlin Wall on this day in 1989 and I wanted to share a photo from the celebration.  This photo shows the giant dominoes that are set up all along the path of the old wall near the Brandenburg Gate (which you can see in the background).  Each domino was decorated by a different group, many by school children from schools in many different countries, including the United States.  Walking along this temporary domino wall is a reminder of what it was like when the real wall was here and you could not pass through from East to West; the path of the domino wall is blocked so you can't pass through except at specific pass-through points.  Like the real wall did 20 years ago, this domino wall will fall tonight to celebrate 20 years of freedom and unity in Germany.



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

The increasing importance of venue?

The National Law Journal reports on the recent transfer of part of a patent case and wonders whether it is indicative of the "federal courts' shifting approach to patent litigation venue battles" prompted by the Federal Circuit's decision in In re TS Tech USA Corp. 551 F.3d 1315 (Fed. Cir. 2008), which held that a district court abused its discretion by denying a defendant's transfer motion.


November 9, 2009 in In the News, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Sunday, November 8, 2009

Reuveni on extraterritoriality, standing, and the securities laws

Erez Reuveni has posted Extraterritoriality as Standing: A Standing Theory of the Extraterritorial Application of the Securities Laws on SSRN.

This Article contends that the current treatment of the extraterritorial scope of the 1934 Securities and Exchange Act as a question of subject matter jurisdiction is wrong. Although the Act is silent as to its extraterritorial application, for over forty years courts have analyzed the Act’s extraterritorial scope as a question of subject matter jurisdiction, relying on the so-called “conduct” and “effects” tests. Because courts apply these tests in an ad hoc, case-by-case manner, they are inherently unpredictable and unnecessarily complicated. This state of affairs has become particularly troublesome in recent years, as so-called “foreign-cubed” securities fraud lawsuits - lawsuits filed by foreign plaintiffs against foreign defendants, alleging fraud in connection with the sale or purchase of shares in foreign markets - have proliferated in federal courts. This Article argues that contrary to current practice, the extraterritorial reach of Section 10(b) and Rule 10b-5 of the 1934 Act is really a question of statutory standing. Under the analysis developed here, the appropriate question for courts to ask is not whether they have jurisdiction over foreign claims, but whether Congress intended for the statutory scheme to provide a remedy to foreign plaintiffs. As this Article shows, only foreign investors who purchase or sell stock in the United States have standing to invoke the securities laws. This approach resolves the problems inherent in jurisdictional analysis and provides a simple, easily understood bright-line rule whose predictive value and procedural benefits ensure an optimal enforcement regime where American interests are affected by foreign fraud.


November 8, 2009 in Federal Courts, International/Comparative Law, Recent Scholarship, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, November 7, 2009

Redish, Julian, & Zyontz on Cy Pres Relief and the Pathologies of the Modern Class Action

Martin Redish (Northwestern), Peter Julian (Northwestern), and Samantha Zyontz (Searle Civil Justice Institute) have posted "Cy Pres Relief and the Pathologies of the Modern Class Action:  A Normative and Empirical Analysis" on SSRN.  It will be published in the Florida Law Review. 


Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class actions, courts have utilized the doctrine as a means of disposing of unclaimed class wide relief. Where a substantial portion of the fund is likely to go unclaimed by absent class members, courts either order or authorize the payment of all or part of the remaining funds to a charitable interest that has some connection - however loose - to the subject matter of the suit. In recent years, use of cy pres in federal class actions has increased dramatically.

Use of cy pres in class actions has largely escaped either judicial or scholarly scrutiny or critique. This is unfortunate, since the doctrine’s use distorts the class action in a manner that undermines the inherently adversary nature of the federal adjudicatory process and the inherently compensatory nature of the underlying substantive law being enforced in the class proceeding. At the same time, resort to cy pres threatens the due process rights of both defendants and absent class members. It achieves these pathological ends by creating an illusion of victim compensation through adversary adjudication when in reality it transforms the underlying law into the forced payment of the equivalent of a civil fine to an entity that has no legitimate interest in the proceeding and has suffered no injury at the hands of the defendants.

In this article, we initially explore the history and current use of cy pres relief in the modern class action. We then explain - for the first time ever in legal scholarship - why the doctrine’s use so seriously undermines norms that are central both to our constitutional system and to American democracy. We then conduct a detailed empirical examination of the available data concerning the use of cy pres relief in class actions. Our empirical analysis underscores our normative critique of the doctrine by highlighting both its rapid expansion and the manner in which it has been abused.


November 7, 2009 in Class Actions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 6, 2009

Hatamyar on the Empirical Impact of Twombly and Iqbal

Professor Patricia Hatamyar (St. Thomas, Florida) has a forthcoming article in the American University Law Review that may be of interest to our readers. The article is The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, and it's available on SSRN.

Here's the abstract:

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of "notice pleading" in federal civil practice.

The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the "no set of facts" standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice.

The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly/Iqbal, the odds of a 12(b)(6) motion being granted rather than denied are 1.5 times greater than under Conley, holding all other variables constant.

Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%).

The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process.


November 6, 2009 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)