Saturday, January 30, 2010

Call for Presentations: Summer Conference for the Institute for Law Teaching and Learning


Summer Conference of the Institute for Law Teaching and Learning

“Teaching Law Practice Across the Curriculum”

June 16-18, 2010; Topeka, Kansas

The Institute for Law Teaching and Learning invites proposals for conference workshops on techniques for teaching law practice across the law school curriculum.    The Institute’s summer conference provides a forum for dedicated teachers to share with colleagues innovative ideas and effective methods for modern legal education.  

The Institute invites proposals for 75-minute workshops consistent with a broad interpretation of the conference theme, “Teaching Law Practice Across the Curriculum.”  The workshops can address teaching and learning in first-year courses, upper-level courses, clinical courses, writing courses, and academic support.  The workshops can deal with innovative materials, alternative teaching methods, ways to enhance student learning, formative feedback to students, evaluation of student performance, etc.  Each workshop should include materials that participants can use during the workshop and when they return to their campuses.  Presenters should not read papers, but should model effective teaching methods by actively engaging the participants.  The co-directors would be glad to work with anyone who would like advice in designing their presentations to be interactive.

To be considered for the conference, proposals must be limited to one page, single-spaced, and include the following:

·        The title of the workshop;

·        The name, address, phone number, and email address of the presenter(s); and

·        A summary of the contents of the workshop, including its goals and methods.

The Institute must receive proposals by February 19, 2010. 

Submit proposals via email to Professor Michael Hunter Schwartz, Co-Director, Institute for Law Teaching and Learning at [email protected]

The conference is self-supporting.  The conference fee for participants is $450, which includes materials and meals during the conference (two breakfasts, two lunches, and one dinner).  The conference fee for presenters is $200.  Pleasant and reasonable accommodations are available near Washburn University School of Law, the site of the conference.  Presenters and participants must cover their own travel and accommodation expenses. The conference workshops will take place on June 17 and 18. 

For more information, please contact: 

Gerry Hess                                                       Michael Hunter Schwartz

ILTL Co-Director                                                ILTL Co-Director                            

[email protected]                         [email protected]

(509) 313-3779                                                  (785) 670-1666

[Hat Tip: Gerry Hess]

January 30, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Friday, January 29, 2010

Hot Off The Presses: Recent Articles Of Interest

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

Brian T. Fitzpatrick, The End of Objector Blackmail? 62 Vand. L. Rev. 1623 (2009)

Jonathan Lahn, The Demise of the Law-finding Jury in America and the Birth of American Legal Science: History and its Challenge for Contemporary Society, 57 Clev. St. L. Rev. 553 (2009)

Chad M. Oldfather and student Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009)

Michael S. Pardo, Second-order Proof Rules, 61 Fla. L. Rev. 1083 (2009)

Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95 (2010)

Richard L. Steagall, The Recent Explosion in Summary Judgments Entered by the Federal Courts has Eliminated the Jury from the Judicial Power, 33 S. Ill. U. L.J. 469 (2009)

Robert L. Ashe, III, Austin M. Hall and Avery S. Jackson, Note, Getting Personal with our Neighbors--A Survey of Southern States' Exercise of General Jurisdiction and a Proposal for Extending Georgia's Long-arm Statute, 25 Ga. St. U. L. Rev. 1177 (2009)

Jordan Bailey, Comment, Giving State Courts the Ol' Slip: Should a Defendant be Allowed to Remove an Otherwise Irremovable Case to Federal Court Solely Because Removal Was Made Before any Defendant Is Served? 42 Tex. Tech. L. Rev. 181 (2009)

Heather Bromfield, Comment, The Denial of Relief: The Enforcement of Class Action Waivers in Arbitration Agreements, 43 UC Davis L. Rev. 315 (2009)

Ryan T. Holt, Note, A Uniform System for the Enforceability of Forum Selection Clauses in Federal Courts, 62 Vand. L. Rev. 1913 (2009).

Arthur Oder, Note, What's Fair is Fair? A Comparative Look at Judicial Discretion in Fairness Review of Holocaust Era Class Action Settlement in the United States and Canada, 17 Cardozo J. Int'l & Comp. L. 545 (2009).


January 29, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 28, 2010

11th Circuit hears arguments on preclusive effect of tobacco litigation

At issue is whether some of the factual findings of a 2006 state court verdict in favor of a plaintiff can be applied to around 4000 cases pending in federal court.  The Fulton County Daily Report provides a good account of the issues and the oral argument, including the arguments of attorney and law professor Samuel Issacharoff.


January 28, 2010 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0) | TrackBack (0)

Sheyn on Jury Trials in Ukraine

Elizabeth R. Sheyn has posted "A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe" on SSRN.  The article is forthcoming in the Vanderbilt Journal of Transnational Law. 

The abstract states:

A dysfunctional judicial system in which bribes are welcome, rather than banned or frowned upon, is difficult to imagine, particularly in light of the prohibitions placed on such conduct in the United States. And yet just such a system is currently in place in Ukraine.

One of the factors likely contributing to the corrupt nature of Ukraine’s judiciary is the lack of a jury trial system; Ukraine has never had a single criminal or civil jury trial despite the fact that the right to a jury trial, at least in criminal cases, is guaranteed by its Constitution. This Article argues that Ukraine can and should make room for juries in its judicial system and provides a framework for both criminal and civil jury trial implementation. Although the use of juries will not remedy all the problems plaguing Ukraine, it can bring this country closer to achieving a truly democratic form of government. Additionally, other former Soviet Republics, especially those that closely resemble Ukraine in terms of their economic, political, and cultural characteristics, could learn and benefit from Ukraine’s example in this respect.

The implementation of jury trials in Ukraine is particularly important because this country, “once considered a worldwide symbol of an emerging, free-market democracy that had cast off authoritarianism, is teetering. And its predicament poses a real threat for other European economies and former Soviet republics.” Ukraine - widely considered “a linchpin for stability in Europe” - has a population of “46 million people and a highly strategic location a collapse in Ukraine could wreck what little investor confidence is left in Eastern Europe, whose formerly robust economies are being badly strained.” Further, governmental problems in Ukraine could “cause neighboring Russia, which has close ethnic and linguistic ties to eastern and southern Ukraine, to try to inject itself into the country’s affairs. What is more, the Kremlin would be able to hold up Ukraine as an example of what happens when former Soviet republics follow a Western model of free-market democracy.” Introducing a jury trial framework in Ukraine - particularly one that is more effective than that currently being used in Russia - will aid in the legitimization of the Ukrainian government and court system, thereby helping to stabilize the presently tumultuous relationship between Ukrainian citizens and their government.


January 28, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 27, 2010

NY Times highlights role of courts in fights over climate change

This article highlights the role that courts play in adjudicating climate disputes, as well as the different tort and environmental doctrines at play.


January 27, 2010 in In the News | Permalink | Comments (0) | TrackBack (0)

Conference Announcement

NYU School of Law will host a conference on "The Roberts Court: A View from the Supreme Court Bar and the Academy."  The program is sponsored by the Dwight D. Opperman Institute of Judicial Administration, and will be on Friday, February 19, 2010 from 10:00 a.m. until noon.  For more information, including a list of participants and registration information (registration is free), click here.

[Hat Tip: Oscar Chase]


January 27, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 26, 2010

Faculty Hiring Announcement

The Florida Coastal School of Law is seeking applicants for permanent, full-time faculty positions. They have a particular need for those interested in teaching Civil Procedure (as well as Estates & Trusts and Environmental Law). Anyone interested in being considered should forward a cover letter, resume, and list of references to the Chair of the Faculty Appointments Committee, Professor Cynthia Irvin, at [email protected].

(Hat Tip: Brad Shannon)


January 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Levy and Glicksman on Preemption and Court Access

Richard E. Levy (University of Kansas - School of Law) and Robert L. Glicksman (George Washington University - Law School) have posted Access to Courts and Preemption of State Remedies in Collective Action Perspective to SSRN.


Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by “downstream” states, or solve a not-in-my-backyard problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever. In doing so we pay particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. We conclude by analyzing how the Supreme Court’s 2009 holding in Wyeth v. Levine that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis.


January 25, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Eight Months of Iqbal

I've been guest-blogging over at Concurring Opinions, and I have a few posts discussing how courts ought to make sense of federal pleading standards after Ashcroft v. Iqbal, what lower courts are actually doing, and the bills now pending in Congress to legislatively override Iqbal. Here are the links to Part 1, Part 2, and Part 3.   

These posts summarize and build on some of the arguments in my article, The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), the latest draft of which is up on SSRN. Here's the abstract: 

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbalwith pre-Twombly authority.

A careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbaldid not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood 50-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbalis neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.


January 25, 2010 in Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Saturday, January 23, 2010

NYT: "Lawyers Use Humor to Plead Case"

No, this New York Times story is not about a new strategy for complying with federal pleading standards. It's about unconventional law firm ads, including the following (links to YouTube):




(Hat Tip: Roger Baron)

January 23, 2010 in In the News, Television | Permalink | Comments (0) | TrackBack (0)

Parau on Judicial Independence in Post-Communist Eastern Europe

Christina E. Parau (University of Oxford Centre for Socio-Legal Studies) has posted "Beyond Judicial Independence?  What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?" on SSRN.

The abstract states:

The judiciary is a high-impact institution which affects social well-being as well as economic development. Following the fall of Communism, most of the countries in Central and Eastern Europe (CEE) undertook judicial reforms, spurred in part by the conditionality of accession to the EU. What have been the actual outcome(s) of these reform efforts? Have judiciaries in CEE remained subservient to the State, or have they come to exercise uncontrollable power, i.e. ‘supremacy’, over the democratically elected political powers? Has a third possibility, the co-equality of the judicial with the political branches, been seriously considered?

The argument is divided into a theoretical/normative and an empirical part. The theoretical part develops the typology about the relationships that can exist between the judiciary and the elected branches of government and their consequences. The empirical part examines in more detail the type of judiciary that has emerged in post-Communist Romania, assessing and explaining the major judicial reform of 2003-2004 which empowered the Constitutional Court; eliminated recurs in anulare, a mechanism which the Executive could have used to check and balance the judiciary; and greatly empowered and made autonomous the Judicial Council, the putative constitutional guardian of judicial independence. The evidence presented strongly suggest that a particular type of relationship between the judiciary and the other powers of government, which I have labelled 'vicious supremacism' is in process of taking root in the CEE. This outcome has been the result of both external pressures, especially exercised by the EU, and domestic motives.


January 23, 2010 in International Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 22, 2010

Recent Articles on Twombly/Iqbal

Here are some recent articles on pleading standards under Ashcroft v. Iqbal and Bell Atlantic v. Twombly:

Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Florida L. Rev. 1 (2010) 

Stephen Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. (forthcoming 2010) 

Stephen Brown, Correlation Plausibility: A Framework for Moving to Fair Pleading in the Post-Twombly and Iqbal World (on SSRN

Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 Nebraska L. Rev. 261 (2009) 


January 22, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Thursday, January 21, 2010

Gender theory and bellwether trials

In a In a recent article in Law 360 on Iqbal and the NuvaRing MDL, I came across the following sentence:

Hopefully this litigation can now proceed through preparation of cases and bellmare trials. (We use bellmare, as the wether is a male goat, and bells were often put on the lead cow.)

I approve!


January 21, 2010 in MDLs, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

SCOTUS on Intervention: South Carolina v. North Carolina

No doubt most of today's SCOTUS-related attention is on the 183-page decision in Citizens United v. FEC. But our readers may be even more interested in yesterday's decision in South Carolina v. North Carolina, which involves that favorite of proceduralists--intervention.

This case is an original action before the Supreme Court, and the issue was whether three nonstate entities (the Catawaba River Water Supply Project, Duke Energy, and the City of Charlotte) should be allowed to intervene. Answer: the first two may intervene; Charlotte may not. The Court was sharply divided, and it's one of the more unusual 5-4 splits you're likely to see. Alito wrote for the majority, joined by Stevens, Scalia, Kennedy, and Breyer. Roberts dissented (in part), joined by Thomas, Ginsburg and Sotomayor (they would have denied intervention to all three).

As footnote 8 of the Court's opinion indicates, Rule 24 does not formally govern original actions like this one--the Federal Rules of Civil Procedure are merely "to be taken as 'guides' to procedure in original actions."


January 21, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Ford on Peremptory Challenges

Roger A. Ford (Covington & Burling) has posted "Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts" on SSRN.  It will be published in the George Mason Law Review.

The abstract states:

Although proponents argue that peremptory challenges make juries more impartial by eliminating “extreme” jurors, studies testing this theory are rare and inconclusive. For this article, two formal models of jury selection are constructed, and various selection procedures are tested, assuming that attorneys act rationally rather than discriminate based on animus. The models demonstrate that even when used rationally, peremptory challenges can distort jury decision making and undermine verdict reliability. 
Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction - as empirical evidence suggests is usually the case - then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future. 
Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.


January 21, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 20, 2010

Garoupa & Ginsburg on Reputation and the Judiciary

Professor Nuno Garoupa (University of Illinois College of Law) and Professor Tom Ginsburg (University of Chicago Law School) have posted "Reputation, Information and the Organization of the Judiciary" on SSRN.  It will be published in the Journal of Comparative Law.

The abstract states:

The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources. We analyze reputation and make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges, who famously lack the purse or the sword. Our second claim is that reputation can be divided into individual and collective components. Individual reputation provides information about individual performance whereas collective reputation provides information about the quality of the judiciary in general. We use the economics of team production to analyze the relationship between individual and collective reputation. Third, different legal systems configure institutions in different ways in order to address the problem of information and reputation. This is what we refer to as the industrial organization of the judiciary. The classical understandings of the common law and civil law judiciaries can be seen as sets of linked institutions that are mutually supportive in addressing the problem of information and reputation.


January 20, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Symposium announcement: Law and the Morality of Punishing Collective Entities

On February 5, 2010 from 9:00 A.M. - 4:15 P.M., Brooklyn Law School will host its David G. Trager Public Symposium.  The topic this year is Sharing the Blame: The Law and Morality of Punishing Public Entities.

About the Program

This Symposium will discuss the nature, ethics, and law of imposing punishment on collective entities. Does it make sense to impose blame on a group as a group, as opposed to its individual members? Even if blame is appropriate, how do we decide the proper form and amount of punishment? How do we even conceive of a group as having its own independent existence or identity? The answers to these questions have significant implications for the scope and enforcement of criminal law. Over the course of several panels, the Symposium will seek to derive broad general insights from various academic disciplines and will consider the practical legal applications of those findings. It will address the psychological processes that lead people to treat groups as having independent existence, and the moral and philosophical consequences of doing so. Later discussion will apply these lessons to the specific legal context of corporate crime.

Panelists include Miriam Baer, Jayne Barnard, Michael Cahill, Meir Dan-Cohen, James Fanto, John Hasnas, Peter Henning, Bertram Malle, Leonard Orland, Steven Sherman, Marion Smiley, Lawrence Solan, Hon. David G. Trager, and Tom Tyler.


January 20, 2010 in Conferences/Symposia | Permalink | TrackBack (0)

Tuesday, January 19, 2010

Hot Off the Presses: Recent Articles of Interest

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

Scott E. Atkinson, Alan C. Marco and John L. Turner, The Economics of a Centralized Judiciary: Uniformity, Forum Shopping, and the Federal Circuit, 52 J.L. & Econ. 411 (2009)

Lon A. Berk, Some Logical Limits of E-discovery, 12 SMU Sci. & Tech. L. Rev. 1 (2008)

Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447 (2009)

Daniel Ryan Koslosky, Toward an Interpretive Model of Judicial Independence: A Case Study of Eastern Europe, 31 U. Pa. J. Int'l L. 203 (2009)

Justin R. Long, Against Certification, 78 Geo. Wash. L. Rev. 114 (2009)

Craig M. Reiser, Comment, The Unconstitutional Application of Summary Judgment in Factually Intensive Inquiries, 12 U. Pa. J. Const. L. 195 (2009)

Alexis N. Simpson, Note, The Monster in the Closet: Declawing the Inequitable Conduct Beast in the Attorney-client Privilege Arena, 25 Ga. St. U. L. Rev. 735 (2009)


January 19, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 18, 2010

Ahdieh on Paulsen on International Law in U.S. Courts

Now available on SSRN is a recent Yale Law Journal Online piece by Prof. Robert Ahdieh (Emory), The Fog of Certainty. Here's the abstract:

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.

These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war - with its attendant distortions and misperceptions - is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.


January 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Scholarship round-up: comparative law and judging