Monday, July 12, 2010

Craig on Due Process Challenges in Environmental & Natural Resources Law

Robin Kundis Craig (Florida State University College of Law) has posted "Due Process Challenges in Environmental and Natural Resources Law" on SSRN. 

The abstract states:

Environmental and natural resources attorneys are likely to encounter a broad range of due process issues in their practices. In the administrative and civil implementation of environmental and natural resources laws, many of these issues are relatively commonplace. For example, basic administrative law highlights the issues of whether the Constitution’s guarantees of procedural due process require a federal or state agency to hold a hearing on a pending matter and, if so, what kind of hearing. However, other kinds of due process issues arise less frequently in the practice of environmental and natural resources law but can have great practical import in particular cases. For example, in 2008, the U.S. Supreme Court implied that substantive due process as well as general principles of maritime law limit the amount of punitive damages that a jury could impose on Exxon in connection with the 1989 Exxon Valdez oil spill in Alaska.

This chapter provides an overview of the most common and important procedural and substantive due process issues that arise in environmental and natural resources law. While most of these challenges are unsuccessful, they provide an important check on how the government interacts with regulated entities and the rationality of government action. Moreover, this chapter highlights two due process issues that have yet to be resolved by the U.S. Supreme Court: the constitutionality of Administrative Compliance Orders in the enforcement of environmental and natural resources laws; and the relevance of the Court's punitive damages/due process jurisprudence to environmental and natural resources penalty provisions.


July 12, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Music Industry's $675K Judgment Against File-Sharing College Student Reduced as Unconstitutionally Excessive

In a closely-watched federal lawsuit brought by several major recording companies, U.S. District Judge Nancy Gertner has reduced a damage award against a defendant who illegally downloaded 30 songs when he was in college. The case is Sony BMG Music Entertainment v. Tenenbaum, 07cv11446-NG (D. Mass. July 9, 2010).

Judge Gertner’s opinion begins: “This copyright case raises the question of whether the Constitution’s Due Process Clause is violated by a jury’s award of $675,000 in statutory damages against an individual who reaped no pecuniary reward from his infringement and whose individual infringing acts caused the plaintiffs minimal harm. I hold that it is.” Here’s more from the opinion’s introduction:

Joel Tenenbaum (“Tenenbaum”), the defendant in this action, was accused of using filesharing software to download and distribute thirty copyrighted songs belonging to the plaintiffs. The plaintiffs are a group of the country’s biggest recording companies. Their lawsuit against Tenenbaum is one of thousands that they have brought against file sharers throughout the country. Tenenbaum, like many of the defendants in these suits, was an undergraduate when his file-sharing was detected.

Although the plaintiffs presented evidence that Tenenbaum illegally downloaded and shared thousands of recordings, the trial focused on his infringement of the plaintiffs’ copyrights in thirty songs. As to these songs, Tenenbaum’s liability for infringement was not seriously in question. . . . The only questions for the jury were whether Tenenbaum’s infringements were willful and what amount of damages was appropriate. . . . The jury did find that Tenenbaum willfully infringed the plaintiffs’ copyrights and imposed damages of $22,500 per song, yielding a total award of $675,000.

. . .

I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive. This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. . . . It cannot withstand scrutiny under the Due Process Clause.

For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.

For additional coverage see the AP and How Appealing.


(Hat Tip: Howard Bashman)

July 12, 2010 in Music, Recent Decisions, Web/Tech | Permalink | Comments (0)

Friday, July 9, 2010

Frost & Lindquist on Elected Judges and the Majoritarian Difficulty (Virginia Law Review)

Countering the Majoritarian Difficulty, 96 Va. L. Rev. 719 (2010), by Professors Amanda Frost (American) and Stefanie Lindquist (Texas), is now "in print" at the Virginia Law Review's website. Here's the abstract:

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape.

This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are better insulated from public opinion. By constitutional design, the federal courts work closely with their state counterparts, overseeing state court decisions and sharing jurisdiction over questions of both state and federal law. As a result, federal courts have the potential to offset majoritarian influences on state courts by reviewing state court decisions, issuing binding and persuasive precedent on questions of federal and state law, and providing state courts with political cover for unpopular decisions. Most important, litigants can often frame their cases to get into federal court when they fear that an elected state court judge would be likely to rule against them.

After describing the important role that federal courts can play in diluting majoritarian influences on elected state court judges, the article then examines empirical evidence suggesting that federal courts are, in fact, more involved in overseeing elected state court judges than their appointed counterparts. The article concludes by asserting that federal courts should assume a more proactive role in mitigating the majoritarian difficulty by taking a state’s judicial selection method into account when making jurisdictional choices.

See also this response in Virginia Law Review's online magazine "In Brief": State Judicial Elections and the Limits of Calibrating Access to the Federal Courts, by Michael Solimine (Cincinnati).


July 9, 2010 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 8, 2010

Faculty Hiring Announcement: University of Alabama

Prof. Paul Horwitz (Alabama) has posted Faculty Hiring at Alabama over at PrawfsBlawg. They’re looking at both entry-level and lateral candidates, and one area of need is civil procedure. 

July 8, 2010 in Weblogs | Permalink | Comments (0)

Tuesday, July 6, 2010

Lee & Willging on Attorney Satisfaction with the Federal Rules of Civil Procedure

Emery G. Lee III (Federal Judicial Center) and Thomas E. Willging (Federal Judicial Center) have posted "Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules" on SSRN.  

The abstract states: "This report provides a brief comparison of the results of three surveys on the current operation of the Federal Rules of Civil Procedure."


July 6, 2010 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

DePoorter on the Feedback Effect of Civil Settlements

Prof. Ben DePoorter's essay, Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements, 95 Cornell L. Rev. 957 (2010), is now "in print" at the Cornell Law Review's website. Here's the abstract:

Lawmakers, courts, and legal scholars often express concern that settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on nonrepresentative settlements. The theoretical and empirical evidence presented in this Essay demonstrates that, despite the widespread use of nondisclosure agreements, information on settlements is distributed both inside and outside legal communities; the information reaches actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds the expected value of the claim at trial. For example, professional organizations highlight novel settlements that are strategically important to lawyers, and special interest groups bring attention to extravagant settlements that are most likely to induce legislative action.

The selective availability of information on outlier settlements increases the potential impact of settlement agreements. For instance, in tort disputes, individual settlement concessions make it harder for similarly situated defendants to deflect forthcoming claims. Ambitious trial lawyers will use prior settlements as minimum bargaining thresholds. Plaintiffs in future cases become more demanding and more reluctant to accept settlements below what others have agreed to in prior, analogous settlements. Moreover, due to their noncoercive nature, settlements may frame the normative outlook on particular claims or disputes. Consequently, settlement trends may become normative benchmarks to judges and juries that seek to reinforce such valuations in settlement conferences or trials. The settlement dynamics identified in this Essay provide a novel inroad for possible research on the evolution of remedies and damages in various areas of law.


(Hat Tip: Larry Solum)

July 6, 2010 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 1, 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:

Jonathan Berman, You may know the law but I own the judge: why Congress can and should get involved in state judicial election reform, 34 J. Legal Prof. 145 (2009)

Lucien J. Dhooge, Aguinda v. ChevronTexaco: discretionary grounds for the non-recognition of foreign judgments for environmental injury in the United States, 28 Va. Envtl. L.J. 241 (2010)

Rosalind Dixon, Female justices, feminism, and the politics of judicial appointment: a re-examination, 21 Yale J.L. & Feminism 297 (2010)

Rochelle Cooper Dreyfuss, What the Federal Circuit can learn from the Supreme Court -- and vice versa, 59 Am. U. L. Rev. 787 (2010)

Theodore Eisenberg, The need for a national civil justice survey of incidence and claiming behavior, 37 Fordham Urb. L.J. 17 (2010)

Theodore Eisenberg  & Geoffrey P. Miller, Attorney fees and expenses in class action settlements: 1993-2008, 7 J. Empirical Legal Stud. 248 (2010)

Heather Elliott, Jurisdictional resequencing and restraint, 43 New Eng. L. Rev. 725 (2009)

Thomas P. Gressette,  Jr., The heightened pleading standard of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal: a new phase in American legal history begins, 58 Drake L. Rev. 401 (2010)

Fiona de Londras & Suzanne Kingston, Rights, security and conflicting international obligations: exploring inter-jurisdictional judicial dialogues in Europe, 58 Am. J. Comp. L. 359 (2010)

Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179 (2010)

Elizabeth R. Sheyn, The (un)constitutionality of section 632 of the Edge Act: an analysis under Article III and theories of protective jurisdiction, 41 Loy. U. Chi. L.J. 587 (2010)

Symeon C. Symeonides, Choice of law in the American courts in 2009: twenty-third annual survey, 58 Am. J. Comp. L. 227 (2010)

Russell R. Wheeler, Practical impediments to structural reform and the promise of third branch analytic methods: a reply to Professors Baum and Legomsky, 59 Duke L.J. 1847 (2010)

Symposium: State Judicial Independence--A National Concern. Keynote address by Justice Sandra Day O'Connor; panel participation by David Skover and Ronald Collins, moderators and Bert Brandenburg, Andrew Siegel, Richard Hasen, Kathleen Sullivan, Chief Justice Shirley Abrahamson, Justice Hans Linde (ret.), Jamie Pedersen, Hon. David Schuman and Charles Wiggins, panelists; articles by William R. Andersen, Bert Brandenburg, Chief Justice Wallace Jefferson, Kenneth L. Karst and Justice Hans A. Linde (ret.), 33 Seattle U. L. Rev. 559-687 (2010)

Bernadette Mary Donovan, Note, Deference in a digital age: the video record and appellate review, 96 Va. L. Rev. 643 (2010)

Jason Schwalm, Student article, The eye of the beholder: a defendant-reliant approach to valuing injunctive relief for the purposes of the amount in controversy requirement, 36 Ohio N.U. L. Rev. 171 (2010)


July 1, 2010 in Recent Scholarship | Permalink | Comments (0)

Nerve Center Test Gets First Post-SCOTUS Application

The Legal Intelligencer reports on a recent ruling that GlaxoSmithKline is a citizen of Pennsylvania (where it has its corporate headquarters), preventing removal of a products liability case to federal court.  This marks a change from the pre-Hertz decisions where courts in circuits that did not apply the nerve center test would hold that such companies are citizens of a state in which most major manufacturing takes place.


July 1, 2010 in Federal Courts, Recent Decisions | Permalink | Comments (0)