Sunday, February 28, 2010
Wojceich Sadurski (University of Sydney - Faculty of Law) has posted Judicial Review in Central and Eastern Europe: Rationales or Rationalizations? to SSRN.
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.
Saturday, February 27, 2010
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@example.com. 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 firstname.lastname@example.org or Catherine Glaze, Student Services Section at email@example.com.
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.
- 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 firstname.lastname@example.org by April 17, 2010.
Thursday, February 25, 2010
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.
Wednesday, February 24, 2010
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.
Tuesday, February 23, 2010
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.
Monday, February 22, 2010
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)
(Hat Tip: John Parry)
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.
Saturday, February 20, 2010
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.).
Friday, February 19, 2010
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)
Thursday, February 18, 2010
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.
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.
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.
Wednesday, February 17, 2010
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.
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.
Tuesday, February 16, 2010
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)
Monday, February 15, 2010
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)
Sunday, February 14, 2010
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.
Saturday, February 13, 2010
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.
Friday, February 12, 2010
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:
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)