Monday, May 31, 2010
Stephen J. Choi (NYU School of Law), G. Mitu Gulati (Duke University School of Law) and Eric Posner (University of Chicago Law School) have posted Judicial Ability and Securities Class Actions to SSRN.
We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are mixed, providing some but limited evidence for the hypotheses.
Saturday, May 29, 2010
Friday, May 28, 2010
Thursday, May 27, 2010
The National Law Journal reports that two federal judges have come to opposite rulings about whether to stay litigation until decisions about consolidation are made and more potential lawsuits are filed.
As I have written previously, I believe that courts should proceed with caution when casting too wide a consolidation net in the aftermath of a major catastrophe. The problems of whether it is fairer or more efficient for cases to move forward on their own or to be consolidated with other cases is a serious question for which I do not believe there are clear or easy answers.
Two federal courts have responded to BP's motions to stay law suits regarding the oil spill in the Gulf of Mexico pending a determination of a multidistrict litigation panel on whether to combine the 130+ cases. One granted the stay and one denied it. A federal court in Mobile, Alabama denied BP's request to delay filing an answer, while another federal court in New Orleans, Louisiana granted BP's motion to stay proceedings. Judge Martin Feldman based his decision to stay the New Orleans proceedings on the "grave potential of conflicting discovery orders," which poses "a hardship for defendants [and] mocks an efficient and orderly judicial system."
The National Law Journal has more about the conflicting decisions on BP's motions to stay proceedings here.
Wednesday, May 26, 2010
Professor Michael Bohlander (Durham Law School) has posted "Pride & Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts" on SSRN. It is published in the New Criminal Law Review.
The abstract states:
The First Circuit's decision in Puerto Rico American Insurance Co. v. Rivera-Vázquez, No. 08-2012, 2010 WL 1781929, 2010 U.S. App. LEXIS 9224 (May 5, 2010), deals with a local "anti-ferret" rule, so named because it is "aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record."
Tuesday, May 25, 2010
From the jurist.org report:
The court granted certiorari to another federal preemption case on Monday in AT&T Mobility v. Concepcion [docket; cert. petition, PDF]. The court will decide whether the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings.
The House Judiciary Committee's Subcommittee on Courts and Competition Policy is holding a hearing this afternoon (5/25/2010, 2:00 p.m.) on H.R. 5281, the "Removal Clarification Act of 2010."
The bill would amend the federal officer removal statute (28 U.S.C. § 1442) to provide that "civil action[s]" removable under § 1442 "include any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued" from a federal officer. The bill would also exempt federal officer removal rulings from 28 U.S.C. § 1447(d)'s bar on appellate review of district court remand orders.
Go to the following links for the bill's text and legislative history and more information about the hearing. A link to a live webcast is available here, or you can stop by 2141 Rayburn House Office Building. The witness list includes:
Beth S. Brinkmann
Deputy Assistant Attorney General, Civil Division
U.S. Department of Justice
Irvin B. Nathan
Office of the General Counsel
U.S. House of Representatives
Lonny S. Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Arthur D. Hellman
Professor of Law
University of Pittsburgh School of Law
Monday, May 24, 2010
Professor Stephen I. Vladeck (American University Washington College of Law) has posted "Terrorism Trials and the Article III Courts after Abu Ali" on SSRN. It will be published in the Texas Law Review.
The abstract states:
Anthony Sebok (Cardozo School of Law) has posted The Inauthentic Claim to SSRN.
This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article that the foundation of both doctrines is based on something I call the theory of “the inauthentic claim.”
The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. It does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.
This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. I conclude that neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third party investment in litigation.
The University of New Mexico School of Law is looking to hire a number of new faculty, including a position in the civil procedure area.
Applicants should attach their cover letter and CV to their online application via the UNMJobs website: https://unmjobs.unm.edu/ (the civil procedure position is posting number 0806250). Professor Elizabeth Rapaport is the head of the hiring committee.
(Hat Tip: Erik Gerding via The Conglomerate)
Friday, May 21, 2010
If you're interested in attending the Association of American Law Schools' Workshop on Civil Procedure (New York City, June 10-12), today is the deadline for discounted "Early Bird" registration. More details and the program schedule are available here. Registration information is available here.
Thursday, May 20, 2010
Iqbal-Twombly anniversary week continues with this decision from the Third Circuit. Mayer v. Belichick affirms the district court's dismissal of a claim by a Jets season ticket holder (New York, not Winnipeg) arising out of the Spygate videotaping scandal.
For additional coverage, see How Appealing.
Tuesday, May 18, 2010
The Supreme Court’s controversial pleading decision Ashcroft v. Iqbal celebrates(?) its first anniversary today. Coincidentally, today is also the day that my article, The Pleading Problem, 62 Stanford L. Rev. 1293 (2010), is officially in print. 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.
This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-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 Iqbal is 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"; only then does the "plausibility" of an entitlement to 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.
The citation count data in the article's appendix reveals that Iqbal has had quite a prolific first year on the books. It is already among the most frequently cited Supreme Court decisions of all time.
The 11th Circuit has nixed a RICO class action brought by dentists against the insurers who reimburse them for services on the grounds that the complaint does not meet the Twiqbal plausibility requirements.
Aside from being an interesting decision, I couldn't help but be amused by bad dentist related puns in this news report from the National Law Journal:
[The plaintiff's lawyer] said that he sensed defeat during oral arguments. "It was clear from the minute I opened my mouth," he said. "The Court of Appeals was a buzzsaw."
Charles Silver (Texas) has posted on SSRN his forthcoming essay, Ethics and Innovation, which will appear in the George Washington Law Review. Here's the abstract:
Using the familiar insight that principals and agents can jointly gain by reducing agency costs, this essay argues (1) that lawyers hoping to attract clients should seek to improve the quality of representation in mass tort cases and to signal their reliability and honesty; (2) that lawyers have sought to adopt innovations that would reduce agency costs, including governance arrangements designed to address monitoring problems, facilitate collective choice by clients, and provide in advance for the allocation of settlement funds; (3) that courts, relying on state bar rules and other laws designed for single-client representations, have undermined lawyers’ efforts by stifling these innovations; and (4) that, by preventing lawyers from innovating, judges have insulated agency problems in mass tort representations from attack and have disserved clients despite seeking to protect them.
This essay comments on articles by other authors that were presented at a conference on the American Law Institute’s Project on the Principles of Aggregate Litigation, of which the author is Associate Reporter. The papers and this essay will be published in a symposium issue of the George Washington Law Review in 2011.
(Hat Tip: Larry Solum)
Monday, May 17, 2010
Tuan Samahon (Villanova) has posted Impeachment as Judicial Selection? to SSRN.
Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who pre-commit to particular legal interpretations and constructions of constitutional text. It may also include deselection by way of impeachment and removal (or at least its threat) of judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collegial courts, such as the U.S. Supreme Court and the U.S. courts of appeals, where personnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachment illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection.
This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet’s and Balkin’s framework of “constitutional hardball.” In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process. This Article details prior episodes of impeachment as judicial selection. It explains why the idea of impeachment as an ex post selection tool proves so tempting. It then considers those legal arguments that justify and contest the claims of this variety of constitutional hardball. Further, the Article makes the case that, contrary to conventional wisdom, constitutional and political developments make impeachment a closer alternative to transformative, affirmative selection than in the past. This relative feasibility heightens the fool’s gold allure of impeachment as judicial selection. Actually impeaching for judicial selection, however, would yield results that many would consider as untoward and unacceptably intruding on judicial independence and the rule of law. This Article briefly considers those significant costs.