Saturday, January 30, 2010
Friday, January 29, 2010
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).
Thursday, January 28, 2010
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.
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.
Wednesday, January 27, 2010
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.
Tuesday, January 26, 2010
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 firstname.lastname@example.org.
(Hat Tip: Brad Shannon)
Monday, January 25, 2010
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.
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.
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.
Saturday, January 23, 2010
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)
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.
Friday, January 22, 2010
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)
Thursday, January 21, 2010
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."
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.
Wednesday, January 20, 2010
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.
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
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.
Tuesday, January 19, 2010
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)
Monday, January 18, 2010
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.
Three articles recently posted to SSRN address issues of judging in a comparative or non-U.S. context.
Abstracts after the jump.