Civil Procedure & Federal Courts Blog

Sadurski on Judicial Review in Central and Eastern Europe

Wojceich Sadurski (University of Sydney - Faculty of Law) has posted Judicial Review in Central and Eastern Europe: Rationales or Rationalizations? to SSRN.

Abstract:     
Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe - especially, from Germany - and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts’ legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.

RJE

Call for Proposals: AALS Section on Balance in Legal Education and Academic Support

CALL FOR PROPOSALS

AMERICAN ASSOCIATION OF LAW SCHOOLS – 2011 Conference, Jan 5-9th
A Joint Program of the Sections on Balance in Legal Education and Academic Support
Co-Sponsored by the Section on Student Services

Theme:  “Beyond Humanizing:  Can – and Should – Law Schools Strive to Graduate Happy Students?”

Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place.  By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations.  Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education.  Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness.  In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.

Three AALS Sections, Balance in Legal Education, Academic Support, and Student Services will be hosting a program in which we explore the causes of lawyer distress, the role legal education plays in producing unhappy law students and lawyers, and the concrete steps law schools are currently taking or could take to combat those causes.  The Program Committees invite proposals that provide concrete demonstrations of ways doctrinal, clinical, legal writing, and academic support professors and student services professionals are addressing these concerns.

The Program Committees will give preference to presentations designed to actively engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed.  In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters.  Based on participant numbers for the last several years, we anticipate over 150 people will be attending the program.  To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.

Proposals must be one page and include the following information:
1.  A title for your presentation.
2.  A brief description of the objectives or outcomes of your presentation.
3.  A brief description of how your presentation will support your stated objectives or outcomes.
4.  The amount of time allocated for your presentation and for the interactive exercise. No single presenter should exceed 45 minutes in total time allowed.  Presentations as short as 15 minutes will be welcomed.
5.  If warranted, a detailed description of how the presentation will be interactive.
6.  Whether you plan to distribute handouts, use PowerPoint, or employ other technology.
7.  Your school affiliation, title, courses taught and contact information (include email address and telephone number).

Optional and on a separate page:  A list of the conferences at which you have presented within the last three years, such as AALS, national or regional conferences, or other academic conferences.  (The committees are interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.)  Any articles or books that you have published describing the technique(s) you will be demonstrating.

Send proposals by March 15, 2010 via email (preferably in a Word Document) to Prof. Emily Randon, University of California, Davis School of Law, at [email protected]  Phone number:  530-752-3434.

Questions?:  If you have questions, feel free to contact Emily Randon, Program Chair for the Academic Support Section, Andrew Faltin, Program Chair for the Balance Section, at [email protected] or Catherine Glaze, Student Services Section at [email protected]

RJE

AALS 2011 Call for Proposals for Open Source Programming

The AALS has issued the following Call for Proposals for Open Source Programming at the 2011 Annual Meeting:

Open Source sessions at the Annual Meeting are novel ideas for programs proposed by groups of faculty members and selected by a committee in a competitive process. The programs should be innovative and include interactive and out of the ordinary approaches to presenting the topics. AALS is requesting proposals for Open Source programs for the 2011 AALS Annual Meeting in San Francisco, California. 

The goal is to encourage a "bottom up" process in which scholars collaborate to develop fresh and exciting ideas for a program at the Annual Meeting. These are not Section, law school, organization, or institution-sponsored programs. An Open Source Program is one developed by a group of faculty members in various subject matters, who have an original topic that they would like to present at the Annual Meeting. 

When developing the proposal you should consider the following:

• Is the format innovative?
• Will the program attract a broad audience?
• Is there a diversity of presenters and multiplicity of planners?
• Is there junior and senior teacher involvement?
• Does the topic cross over common issues and transcend a particular subject area?
• Would there be a publication coming out of the submission?
• Will the program format require expensive audio-visual equipment?
  

To ensure exceptional topics for the Open Source programs, proposals should not feature a program or subject that could be offered by an AALS Section or conflict with other program topics being presented at the 2011 AALS Annual Meeting. Thus, the Open Source Selection Committee will evaluate all proposals in light of AALS Section programs.

For your proposal to be considered, you must provide the following submission requirements:

• Program title
• Detailed description and explanation of what the program is trying to accomplish
• Names of the planners of the program and a description of how the program idea was generated
• Names of speakers to be invited including their full names and schools with a link to or copy of their vita
• Presentation format of program
• Program publishing information: Will the program be published? If so, where would it be published?
  

Please mail your submissions and required information to [email protected] by April 17, 2010.

[H/T Susan Westerberg Prager]

~clf

SCOTUS Cert Grant of Interest: Harrington v. Richter

This week the Supreme Court granted certiorari in Harrington v. Richter, No. 09-587, a habeas case out of the Ninth Circuit. Here are links to the opinion below, the docket, and SCOTUSblog's wiki on the case. From a federal-courts standpoint, this part of the order granting cert may be of interest:

"In addition to the question presented, the parties are directed to brief and argue the following question: Does AEDPA deference apply to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U.S. 668 (1984)?"

The amount of deference federal habeas courts owe to a state court's decision on federal constitutional issues has been the subject of considerable judicial and scholarly debate, as the doctrine evolved from the days of Brown v. Allen (no deference) to Teague v. Lane (deference via a non-retroactivity principle) to the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), which codified the following language in 28 U.S.C. § 2254(d)(1):

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Whether deference is required when a state court issues only a "summary disposition" of a constitutional claim (the issue for which SCOTUS ordered briefing in Harrington) targets a potentially thorny question: How can a federal habeas court determine whether a state court's decision "involved an unreasonable application of clearly established Federal law" if the state court never explained how it actually applied clearly established federal law? One possible answer: it can't, so the federal court should proceed to decide the federal issues de novo.

If readers are interested, I examine this issue (and others relating to § 2254(d)(1)) in an article from many years ago entitled: Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA's Standard of Review Operate After Williams v. Taylor?, 2001 Wisconsin Law Review 1493.

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Barton on Pro Se Court Reform

Benjamin H. Barton (University of Tennessee College of Law) has posted Against Civil Gideon (and for Pro Se Court Reform) to SSRN.

Abstract:     
This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.

Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.

RJE

SCOTUS Decision In Hertz Corp. v. Friend: Where Is A Corporation's Principal Place Of Business?

Today the Supreme Court issued a unanimous decision in Hertz Corp. v. Friend, covered earlier here, here, and here. The opinion, per Justice Breyer, begins:

The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) (emphasis added). We seek here to resolve different interpretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase "principal place of business" refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s "nerve center." We believe that the “nerve center” will typically be found at a corporation’s headquarters. 

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Lewis & Clark Law Review Symposium "Pondering Iqbal"

The Lewis & Clark Law Review Symposium "Pondering Iqbal" is now available on-line here. Contributions include:

Edward Brunet, The Substantive Origins of “Plausible Pleadings”: An Introduction to the Symposium on Ashcroft v. Iqbal, 14 Lewis & Clark L. Rev. 1 (2010) 

Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark L. Rev. 15 (2010)

Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010)

Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65 (2010) 

Hillel Y. Levin, Iqbal, Twombly, and the Lessons of the Celotex Trilogy, 14 Lewis & Clark L. Rev. 143 (2010)

Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010)

A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010) 

Tung Yin, “I Do Not Think [Implausible] Means What You Think It Means”: Iqbal v. Ashcroft and Judicial Vouching for Government Officials, 14 Lewis & Clark L. Rev. 203 (2010)

Michael C. Dorf, Iqbal and Bad Apples, 14 Lewis & Clark L. Rev. 217 (2010) 

Juliet P. Stumpf, The Implausible Alien: Iqbal and the Influence of Immigration Law, 14 Lewis & Clark L. Rev. 231 (2010) 

Stephen I. Vladeck, National Security and Bivens After Iqbal, 14 Lewis & Clark L. Rev. 255 (2010) 

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(Hat Tip: John Parry)

Sobbrio, D'Agostino and Sirioni on Lawyering in Italy

Giuseppe Sobbrio, Elena D'Agostino, and Emiliano Sirioni have posted Do Lawyers Affect Legal Disputes in Italy? An Instrumental Variables Approach to SSRN.

Abstract:     
The legal system can be treated as a large market where justice is traded in terms of legal disputes. Empirical evidence underlines that demand for legal assistance raises over time, despite high costs connected to filing, not only in Italy but also elsewhere in Europe. Moreover, the demand for legal services increases over time despite the high costs of filing. We argue that such increase is due to plaintiffs’ unawareness about the true cost (including delay) of filing. The reason fundamental to this situation is represented by the asymmetric information, which characterizes this environment. The client usually has poor information to value his chance for winning a dispute; hence he cannot rationally and knowingly form his own demand for legal aid. Thus, there is an adverse-selection process between lawyers and their clients that may lead to an uncontrolled increase of the demand for legal services above the rational level. As we will try to prove in this paper, such situation is emphasized in places with a higher density of lawyers, since they compete with each others in order to attract potential clients. In this paper, we use an instrumental variables approach in order to demonstrate that a high number of lawyers in a geographical area plays a significant role on the demand for new legal disputes. Results provide evidence of a positive effect of lawyers on the increase of legal disputes.

RJE

Cromer Young on After Iqbal

Professor Julie D. Cromer Young (Thomas Jefferson School of Law) has posted "Centering the Pleading Pendulum After Iqbal" on SSRN.  

The abstract states:

In 2007, the Supreme Court in Bell Atlantic v. Twombly introduced the concept of plausibility pleading to federal courts and the Federal Rules of Civil Procedure. Under this concept, in order for a complaint to survive a motion to dismiss, the plaintiff had to plead enough facts to make the cause of action plausible to the court. This was a marked departure in the interpretation of Rule 8's "short and plain statement of the claim" from the standard enunciated fifty years before by the Court in Conley v. Gibson. The Conley Court held that to succeed in a motion to dismiss, a defendant must establish that the plaintiff could establish no set of facts that would support plaintiff's allegations after she had pled enough information to put the defendant on notice of the claims against him. Courts and scholars questioned and debated the applicability of plausibility pleading, but in May 2009 the Supreme Court confirmed it in the 5-4 decision in Ashcroft v. Iqbal, causing the U.S. Senate and House to respond with calls to bring back Conley's "no set of facts" language as the required interpretation.

Iqbal forces the federal court system to revisit the debate that it had at the introduction of the Federal Rules more than sixty years ago: Does notice pleading allow a plaintiff too much entry into the court system without facts sufficient to support a cause of action? Before Twombly, the United States was alone among nations in requiring no factual allegations from civil plaintiffs, inviting foreign litigants to seek the U.S. out as a forum. After Iqbal, however, the United States requires a level of specificity in pleadings not even required by nations adhering to systems of civil (as opposed to common-law) adjudication. By attempting to overcorrect the problems inherent in notice pleading, the Supreme Court has created a standard unworkable with the rest of the Federal Rules of Civil Procedure. An out-and-out return to notice pleading, however, may not be the answer.

This Article will examine the history of pleading in the United States and provide an in-depth analysis of the years since Twombly to see whether plausibility pleading allowed plaintiffs the opportunity to be heard in the U.S. federal court system. It considers different Federal Rules of Civil Procedure directly framed around the notice pleadings standard to question any change in the application of those rules. The Article also discusses four types of cases that may have relied on notice pleading in the past: employment discrimination, intellectual property, securities fraud, and pro se litigation. It does so to examine whether plausibility pleading lets plaintiffs effectively frame their claims. Finally, the Article proposes an amendment to Rule 8 and other Federal Rules that avoids a knee-jerk reaction to the problems inherent in plausibility pleading but brings the U.S. federal courts more closely in line with their international common-law counterparts.

~clf

Menkel-Meadow & Garth on Empirical Studies of Civil Procedure

Professor Carrie Menkel-Meadow (Georgetown University Law Center; University of California, Irvine Law School) and Professor Bryant Garth (Southwestern Law School; American Bar Foundation) have posted "Process, People, Power and Policy: Empirical Studies of Civil Procedure" on SSRN.  It will be published in the Oxford Handbook of Empirical Legal Studies (P. Cane & H. Kritzer, eds.).

The abstract states:

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, access to courts, discovery practices, evaluations of the effects of particular rules, such as Rule 11 verification requirements, class actions, and practices such as court use of ADR, case management, and pre-trial conferences. The authors argue that empirical research on procedures and policies in courts have mostly been conducted in service of particular reform agendas, with a few exceptions of more "pure academic" study. The essay concludes with some suggestions for research questions that explore questions of who does the research for what purposes. Do researchers use research to develop their own "human capital" or legal reform influence? How do we know what optimal rates of court usage are? Can empirical studies shed light on more normative questions about what are optimal levels of process, access to courts, and when justice is delivered in formal court institutions?

~clf

UPDATED: Texas Supreme Court Justices Sued in Federal Court for Failing to Rule on Class Certification Appeal

Plaintiffs in a Texas state court class action against Southwestern Bell have been waiting years for the Texas Supreme Court to decide whether the trial court's order certifying the class was proper. Southwestern Bell appealed to the Texas Supreme Court in November 2005, and oral argument occurred in March 2007.

As reported here, the plaintiffs have now sued the nine Justices of the Texas Supreme Court in federal court, seeking declaratory relief. Plaintiffs are asking the court to declare that the Texas Supreme Court's delay is depriving them of their rights to due process and judicial access, and that "the Texas Supreme Court is constitutionally bound to make a decision at a meaningful time and in a meaningful manner." The case is Marketing On Hold, Inc. v. Jefferson, No. 10-cv-00104-SS (W.D. Tex.). Docket information is available via Justia and Pacer.

(Hat Tip: Roger Baron)

Update from the "be careful what you wish for" department: The Texas Supreme Court issued its 27-page decision today, reversing the lower court and decertifying the plaintiff class. It concluded that "the putative class representative failed to establish that it adequately represents the class."

(Hat Tip: Alexandra Albright)

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Spencer on Iqbal and Restrictive Procedure

Prof. Benjamin Spencer (Washington & Lee) has posted on SSRN his forthcoming piece, Iqbal and the Slide Toward Restrictive Procedure, part of the Lewis & Clark Law Review's symposium on Ashcroft v. Iqbal. Here's the abstract:

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscoresthe substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

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Posner and Sykes on the Economics of the Law of the Sea

Eric Posner (University of Chicago Law School) and Alan Sykes (Stanford Law School) have posted Economic Foundations of the Law of the Sea to SSRN.

Abstract:     
The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.

RJE

Choi et al. on The Price of Pay to Play in Securities Class Actions

Stephen Choi (NYU School of Law), Drew Johnson-Skinner (NYU School of Law), and Adam Pritchard (University of Michigan Law School have posted The Price of Pay to Play in Securities Class Actions.

Abstract:     
This paper studies the effect of campaign contributions to lead plaintiffs - pay to play - on the level of attorneys’ fees in securities class actions. We find that state pension funds generally pay lower attorneys’ fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to officials with influence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead plaintiff with a single plaintiffs’ attorney firm. Thus, pay to play appears to increase agency costs borne by shareholders in securities class actions, undermining one of Congress’s principal goals in adopting the Private Securities Litigation Reform Act.

RJE

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:

George A. Bermann, U.S. Class Actions and the "Global Class", 19 Kan. J.L. & Pub. Pol'y 91 (2009)

Bryan Druzin, Buying Commercial Law: Choice of Law, Choice of Forum, and Network Externalities, 18 Tul. J. Int'l & Comp. L. 131 (2009)

Mitchell Gordon, One Text, Two Tales: When Executive/Judicial Balances Diverged in Argentina and the United States, 19 Ind. Int'l & Comp. L. Rev. 323 (2009)

Carter G. Phillips, Lewis F. Powell Lecture, 66 Wash. & Lee L. Rev. 1467 (2009)

Christopher A. Whytock, Domestic Courts and Global Governance, 84 Tul. L. Rev. 67 (2009)

Erica B. Haggard, Note, Removal to Federal Courts from State Administrative Agencies: Reevaluating the Functional Test, 66 Wash. & Lee L. Rev. 1831 (2009)

Denise Mazzeo, Note, Securities Class Actions, CAFA, and a Countrywide Crisis: A Call for Clarity and Consistency, 78 Fordham L. Rev. 1433 (2009)

Daniel Northrop, Note, The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention that the Attorney Draft a Document to be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege, 78 Fordham L. Rev. 1481 (2009)

Robert Terenzi, Jr., Note, When Cows Fly: Expanding Cognizable Injury-in-Fact and Interest Group Litigation, 78 Fordham L. Rev. 1559 (2009)

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Now In Print: Fordham Law Review Symposium On Owen Fiss's "Against Settlement"

The Fordham Law Review hosted a symposium in 2009 entitled "Against Settlement: Twenty-Five Years Later." The issue is now in print, and the contributions to the symposium are available here. Here's the line-up:

Howard M. Erichson, Foreword: Reflections on the Adjudication-Settlement Divide, 78 Fordham L. Rev. 1117 (2009)

John Bronsteen, Some Thoughts about the Economics of Settlement, 78 Fordham L. Rev. 1129 (2009)

Amy J. Cohen, Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 Fordham L. Rev. 1143 (2009)

Kenneth R. Feinberg, Reexamining the Arguments in Owen M. Fiss, Against Settlement, 78 Fordham L. Rev. 1171 (2009)

Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78 Fordham L. Rev. 1177 (2009)

Michael Moffitt, Three Things to Be Against ("Settlement" Not Included), 78 Fordham L. Rev. 1203 (2009)

Jacqueline Nolan-Haley, Mediation Exceptionality, 78 Fordham L. Rev. 1247 (2009)

Hon. Jack B. Weinstein, Comments on Owen M. Fiss, Against Settlement (1984), 78 Fordham L. Rev. 1265 (2009)

Owen M. Fiss, The History of an Idea, 78 Fordham L. Rev. 1273 (2009)

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New Qui Tam suit draws broad intervenor efforts from state governments

Law.com reports here about a qui tam suit concerning the quality of PVC pipes.  The plaintiffs allege that J-M Manufacturing deliberately mislead regulators and consumers with products that did not meet manufacturing standards.  The recently unsealed complaint illustrates the interesting path of some qui tam suits: (1) a government fails or declines to exercise authority; (2) private litigants file a qui tam suit; (3) governments seek to intervene in the lawsuit.

RJE

Fix on Judicial Review and Agency Implementation

Professor Michael Fix (University of South Carolina) has posted "A Signaling Game of Judicial Review and Agency Implementation" on SSRN as part of the Working Paper Series.

The abstract states:

As the U.S. Supreme Court observed in Federal Maritime Commission v. South Carolina State Ports Authority, “[t]he founders . . . could not have anticipated the vast growth of the administrative state.” As this growth has occurred in both size and scope in the U.S and in countries around the world, agency action has begun to directly impact the lives of individual citizens in a myriad of ways. This begs the question, how can agency action be checked to ensure these institutions do not infringe upon individual rights? Existing models of court-agency interaction have analyzed one check on agencies – the mechanism of judicial review. Yet, these models ignore the iterative process of court-agency interaction by failing to account for what occurs after a court has ruled on the validity of an agency action. Of equal import is what occurs after a court has rendered its decision, as court decisions are generally not self-enforcing. Moreover, in the context of administrative law judicial rulings often must be implemented by the same agency whose initial action was at issue in the case. To bring additional leverage to bear on our understanding of court-agency interaction, I develop a simple signaling game to model the process of judicial review and agency implementation. To capture the second stage of the process, I draw from the literature on implementation of judicial decisions to model agency implementation of judicial decision and the decision of courts to ‘punish’ agencies that shirk faithful implementation of their rulings. Additionally, I use the signaling aspect of the game to formalize the idea that the importance of all cases – or their salience – is not given equal weight by the actors. From this model, I derive implications about the impact of the costs and salience, on the strategic choices of the actors. I then conduct a preliminary test of the models prediction using a sample of immigration cases in the U.S. Courts of Appeals.

~clf

Upcoming Conference on Iqbal (Mar. 26)

As covered earlier here, the Penn State Law Review is sponsoring a symposium entitled: "Reflections on Iqbal: Discerning Its Rule, Grappling with Its Implications." It's on Friday, March 26, 2010 at Penn State's Carlisle campus (simulcast to the University Park campus). If you're interested in attending or participating, see the following announcement from Penn State Prof. Nancy Welsh:

Continue reading

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:

Hannah L. Buxbaum, Personal Jurisdiction over Foreign Directors in Cross-border Securities Litigation, 35 J. Corp. L. 71 (2009)

Charles B. Campbell, No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico under the Hauge Service Convention, 19 Minn. J. Int'l L. 107 (2010)

Mary L. Clark, Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level? 114 Penn St. L. Rev. 49 (2009)

Theodore Eisenberg & Geoffrey P. Miller, Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source, 89 B.U. L. Rev. 1451 (2009)

Samuel Estreicher & Kristina Yost, Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment, 6 J. Empirical Legal Stud. 768 (2009)

Charles R. Flores, The Texas Supreme Court's Erroneous Doctrine of Implied Appellate Jurisdiction, 41 St. Mary's L.J. 1 (2009)

Steven G. Gey, The Procedural Annihilation of Structural Rights, 61 Hastings L.J. 1 (2009)

Joseph Landau, Muscular Procedure: Conditional Deference in the Executive Detention Cases, 84 Wash. L. Rev. 661 (2009)

Mark A. Hill, Note, Opening the Door for Bias: The Problem of Applying Transferee Forum Law in Multidistrict Litigation, 85 Notre Dame L. Rev. 341 (2009)

Daniel C. Lopez, Note, Collective Confusion: FLSA Collective Actions, Rule 23 Class Actions, and the Rules Enabling Act, 61 Hastings L.J. 275 (2009)

Nicholas Tymoczko, Note, Between the Possible and the Probable: Defining the Plausibility Standard after Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, 94 Minn. L. Rev. 505 (2009)

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