Monday, August 30, 2010

Erbsen on Impersonal Jurisdiction

Allan Erbsen (University of Minnesota School of Law) has posted Impersonal Jurisdiction to SSRN.

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation.  Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent.  This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction.  It concludes that principles animating the emerging field of horizontal federalism—the constitutional relationship between states—should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence.  The Article proceeds in three steps: it strips away layers of history and doctrine to present a model for thinking about why constitutional limits on personal jurisdiction may be necessary, shows how the model places personal jurisdiction within a broader context of constitutional law governing horizontal federalism, and considers how analyzing personal jurisdiction within this context challenges pivotal assumptions underlying modern doctrine and canonical understandings of how civil procedure and constitutional law intersect.  In particular, the Article questions two pillars of the Supreme Court’s jurisprudence.  First, it considers whether the Constitution makes Congress rather than the judiciary the primary institution for regulating jurisdiction in state courts, and thus whether the prospect of diversity jurisdiction and removal to federal court should preempt judicially created due process remedies against jurisdictional overreaching by state courts.  Second, it challenges the coherence of the multifactored reasonableness test that courts use to implement due process limits on state authority.  More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine.  The Article thus generates insights that can reshape a much maligned area of law that routinely confounds courts and scholars.


August 30, 2010 in Recent Scholarship | Permalink | Comments (0)

Oldfather, Bockhorst & Dimmer on Judicial Responsiveness

Professor Chad Oldfather (Marquette), Joesph Bockhorst and Brian Dimmer have posted on SSRN their article, Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness. Here's the abstract:

This article attempts to develop a measure of what we call “judicial responsiveness,” which, roughly stated, concerns the extent to which judicial opinions reflect the arguments made by the parties in their briefs. We applied two methods of automated content analysis to the briefs and opinion in each of a set of 30 cases decided by the First Circuit, measuring for similarity based on computations of word counts and citation percentages. We then compared the results of those methods to the results of manual coding of the same documents. The existence of statistically significant correlations among the measures supports the conclusion that our automated methodologies serve as a valid means of assessing responsiveness. We argue that these investigations can inform a range of scholarly debates, including efforts to assess judicial quality and the influence of ideology on judging, as well as debates over specific components of the judicial process, such as the use of unpublished opinions.


August 30, 2010 in Recent Scholarship | Permalink | Comments (0)

Friday, August 27, 2010

Spottswood on Live Hearings, Paper Trials

Prof. Mark Spottswood (Northwestern) has posted on SSRN his article Live Hearings and Paper Trials. Here’s the abstract:

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared - but false - assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review a paper transcript. Witness presence, in other words, may often harm, rather than improve, the accuracy of credibility assessments. The fact that legal actors value hearings for mistaken reasons does not mean that hearing have no value, but it does raise the concern that live procedure will be employed when it is unneeded or even counterproductive, especially given the lack of available guidance on this question. In this article, I attempt to remedy this problem by providing a sound set of guiding principles concerning both the utility and the risks of live and paper-based fact-finding.

Live hearings and trials will often, but not always, do more harm than good. In addition to the fact that demeanor cues generally impair credibility judgments, there are a number of cognitive biases that may arise from having one’s first impressions of a witness be visual and auditory impressions. These include a persistent human tendency to trust or distrust witnesses based on their physical attractiveness, their social status, their race, or other features that may make them similar to, or different than, the fact-finder. On the flip side, live fact-finding may help a judge make sense of confusing evidence. In addition, in-court hearings may feel fairer to participants than paper-based decisions, due in large part to the desire to have expressive input in decisions that affect us. And occasionally, a live hearing or trial may be preferable for reasons of cost or practicality.

A better understanding of the costs and benefits of live fact-finding has profound implications for the design of our civil justice system. Our current approach relies on predominantly paper-based pre-trial fact-finding, followed in rare cases by a live trial process. Unfortunately, this system uses paper-based procedures at a point when live hearings may often be cheaper and more reliable, and then shifts to live examination once its benefits have evaporated and its costs are likely to be prohibitive. A preferable system would allow for more live hearings early in a case. Even when there is no direct credibility conflict, live proof at this stage may increase the legitimacy of rulings and may lower litigation costs, and will often be more reliable than the paper-based alternative of affidavit evidence. By contrast, rulemakers should be more willing to authorize - and judges should be more willing to use - paper trials at the final fact-finding stage of a dispute. At this late stage, live procedure will be expensive and unreliable, and as a result, it will be used so rarely that it will give little practical expressive opportunity for litigants. In short, we should reverse our present approach to civil-case fact-finding by holding more live pre-trial hearings and more paper trials.


August 27, 2010 in Recent Scholarship | Permalink | Comments (0)

Thursday, August 26, 2010

University of Idaho has faculty positions in Civ Pro

Here is the announcement: 

THE UNIVERSITY OF IDAHO COLLEGE OF LAW seeks to fill two entry-level, tenure-track faculty positions at its Moscow, Idaho campus beginning in the Fall of 2011 contingent upon approval of the positions by the University’s Board of Regents. Anticipated course needs include Constitutional Law, Administrative Law, Criminal Procedure, First Amendment, State Constitutional Law, Civil Liberties, Evidence, Professional Responsibility, Civil Procedure, and Remedies.  Applicants must have a JD from an ABA accredited school or the equivalent and must have a distinguished academic record and post J.D. practice, clerking and/or teaching experience. Applicants must show promise as excellent teachers and productive scholars.  Applications from individuals with a demonstrated commitment to legal education including prior law teaching experience and scholarship in their field will be preferred.  Situated in the beautiful Pacific Northwest, the University of Idaho is a comprehensive research institution that is enriched by its proximity to Washington State University.  Information about the College of Law is available on its website at persons should either apply online at or send a letter of application and resume listing three references by regular mail or email  to Elizabeth Brandt, Professor and Associate Dean for Faculty Affairs,  Chair, Faculty Appointments Committee, University of Idaho, College of Law, PO Box 442321, Moscow, Idaho 83844-232, [email protected] .   The Committee will begin reviewing applications on September 15, 2010 and will continue until the position is filled.  Priority will be given to applications received before November 1, 2010.  The University of Idaho is an affirmative action, equal opportunity employer.  The University of has an institution-wide commitment to diversity, human rights, multiculturalism and community.  It expresses that commitment by actively recruiting and retaining a diverse workforce and student body, and by building and sustaining a welcoming, supportive campus environment. 

August 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Kansas Attorneys Have More Fun

On the homepage for the District of Kansas, I found this announcement for the 10th Circuit Bench and Bar conference which will feature a Second(!) Biannual Kansas Karaoke Night.

I approve!


August 26, 2010 in In the News | Permalink | Comments (1)

Nagareda on Class Certification and Dukes v. Wal-Mart

Prof. Richard Nagareda (Vanderbilt) has posted on SSRN his essay, Common Answers for Class Certification, which is forthcoming in the Vanderbilt Law Review En Banc. Here's the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines.

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.


August 26, 2010 in Class Actions, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, August 25, 2010

Skinner on International Law Violations and "Arising Under" Jurisdiction

Professor Gwynne Skinner (Willamette University College of Law) has posted "When Customary International Law Violations 'Arise Under the Laws of the United States'" on SSRN.  It will be published in the Brooklyn Journal of International Law.

The abstract states:

For years, scholars have been vigorously debating the precise role of customary international law within our federal legal system, including whether such is federal common law and whether claims for violation of customary international law arise under the “Laws of the United States” for purposes of both Article III and general federal questions jurisdiction, found at 28 U.S.C. § 1331. This question also remains unresolved by the U.S. Supreme Court. Yet, it is a question that is timely, given the increasing number of non-citizens and citizens alike that bring claims for violations of customary international law in U.S. court. 

In this Article, I conclude that common law claims for violations of customary international law arise under the “laws of the United States” for general federal question jurisdiction and within Article III, but only where such claims or defenses to them implicate uniquely federal interests, such as foreign relations. I do not take this position because the law of nations itself is, or historically was, part of the “laws of the United States” for Article III and 1331 purposes; in fact, the law of nations probably was not considered to be the “law of the United States” per se when each was enacted. Rather, I take this position for two other reasons. First, certain enclaves of federal common law have developed over time to include certain norms and rules of customary international law – i.e., those that affect uniquely federal interests such as foreign relations – and federal courts have the judicial authority to continue to develop such law when uniquely national interests are at stake. Second, federal common law has evolved to become “law of the United States” for purposes of both Article III and 28 U.S.C. §1331.


August 25, 2010 in International/Comparative Law, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Meier on Causation and Standing

Luke Meier (Baylor Law School) has posted Causation and Standing to SSRN. 

To satisfy the standing requirements deriving from the “case” or “controversy” language of Article III, a plaintiff must show (1) injury in fact which is (2) fairly traceable to the defendant’s misconduct (“causation”) and which can be (3) redressed by a favorable decision of the court. This articulation of the standing requirements deriving from Article III has been recited by the Supreme Court for nearly thirty years, but these requirements can be traced to cases extending back even further. This conceptualization of Article III standing requirements has been the subject of extensive academic criticism, from the moment the current formulation of standing was introduced to the most recent law review volumes. The topic of standing has attracted the attention of some of the nation’s most brilliant legal academics.

For the most part, the ubiquitous academic criticism of standing has focused primarily on the injury prong of the standing analysis. This Article will depart from the thrust of most standing scholarship by focusing on the second element, rather than the first element, of Article III standing. The “fairly traceable” or “causation” requirement of standing has largely been ignored, or treated as a secondary consideration, in modern academic discussions on standing. Partly because of academic disinterest in this topic, uncertainty remains as to the analysis required by the causation prong of standing. A major purpose of this Article is to shed light on this issue.

I hope to accomplish this task by heavily relying upon causation concepts and terminology developed in tort law. In particular, I wish to employ the concepts of “cause in fact” and “proximate cause,” both of which are elements of a standard Negligence clam. Modern tort law recognizes cause in fact and proximate cause as distinct concepts serving separate purposes. This has not always been the case. The “decoupling” of cause in fact and proximate cause is a relatively recent phenomenon, and one that is still ongoing in the most recent Restatement (Third) of Torts.

A similar “decoupling” is needed for causation in the standing context. Distinguishing cause in fact and proximate cause in tort law had facilitated the achievement of increased analytical clarity within tort doctrine. Employing the same decoupling approach to causation within standing can produce the same effect. In fact, it leads to a somewhat startling conclusion: While the terminology often used by the Supreme Court in discussing the causation prong of standing suggests a cause in fact analysis, in most cases it appears that the Court has not engaged in the cause in fact analysis suggested by the language used in the opinions.

This disconnect – between the terminology used by the Court and the analysis actually conducted under the causation prong of standing – is most evident when one considers the purposes or functions generally attributed to standing. Standing is often described as serving a “gatekeeper” function which is to operate at the “threshold” of a federal lawsuit. The nature of the cause in fact inquiry, however, is flatly inconsistent with these functions of standing law. The cause in fact inquiry is fact intensive; it requires the decision-maker to draw inferences from evidence. Having a cause in fact inquiry as part of the threshold standing analysis is akin to forcing a square peg in a round hole; it is a horrible fit. Not surprisingly, then, the Supreme Court has struggled mightily to develop a procedural approach to standing causation which recognizes the gatekeeper function of standing while also incorporating the cause in fact terminology that is found in the Court’s opinions. The failure to develop a cohesive procedure for employing this cause in fact terminology is a symptom of an underlying problem.

These procedural problems disappear, however, if the “fairly traceable” or “causation” prong of standing is interpreted as requiring a proximate cause analysis. Procedurally speaking, a proximate cause interpretation of standing is a great fit with the gatekeeper function attributed to standing law. A proximate cause analysis does not require a federal court to draw inferences from evidence at the outset of litigation; instead, it requires a court to ascertain the purposes behind the law on which the plaintiff relies in bringing her suit. This sort of analysis is deferential to other branches of government and is purely legal, as opposed to factual, in its scope. As such, it is a comfortable task for federal courts to perform and can be easily conducted at the threshold of litigation.

The superior “fit” of proximate cause in standing makes it a better interpretation of the “fairly traceable” prong of standing. A close inspection of the early Supreme Court cases using cause in fact terminology suggests that the Supreme Court most likely intended, originally at least, a proximate cause analysis. Because of the failure to properly “decouple,” however, proximate cause concepts were verbalized using cause in fact language. In subsequent Supreme Court cases the Court has continued to employ cause in fact language but has usually avoided engaging in a full-fledged cause in fact analysis.

As such, the Court should reformulate the causation prong of standing to clarify that it requires a proximate cause, rather than a cause in fact, analysis. This interpretation of the causation prong of standing will solve the procedural problems caused by the current cause in fact language used in the opinions and will be a better tool for implementing the intuitions which originally prompted the Court to develop this branch of standing jurisprudence.


August 25, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 24, 2010

Hoffman & Steinberg on the Milberg Weiss Controversy

Professor Lonny Hoffman (Houston) & Alan Steinberg have posted on SSRN their paper The Ongoing Milberg Weiss Controversy. Here’s the abstract:

In this paper we revisit the ongoing controversy surrounding the Milberg Weiss prosecution. Our paper responds to an important, recent empirical study by Michael A. Perino that claims to have found evidence to support the government’s assertion (made without evidentiary support) that class members were in fact injured by the payments Milberg made to the named representatives. Notwithstanding the carefully constructed and rigorous study Perino has authored, we argue that the evidentiary proof of harm he claims to have found simply cannot withstand scrutiny. We raise several methodological critiques of the study. Although we did not have access to Perino’s full data, we were able to replicate some of it by using the same database of securities class action settlements on which he primarily relied. The replication data results validate some of our hypotheses. Most critically, the replication data strongly suggests that the reason why fees may have been higher in the indictment cases is that the almost all were filed before the Reform Act went into effect. By contrast, the vast majority of cases in the replication sample of Perino’s non-indictment cases were filed in a later period when fees have been lower. Additionally, the replication data we report is not consistent with some of the descriptive statistical findings Perino presents. Specifically, we find no difference either in mean or median fee awards between cases in which the government alleged Milberg paid a kickback and all other cases. Beyond the study’s methodological difficulties, we also show that there are equally substantial reasons to be concerned about the inferential conclusions Perino draws from the data. The big take away that Perino offers at the end of his study—that the evidence contradicts the claim that kickbacks paid to the named plaintiffs were a “victimless crime”—is not supported by the data he has collected and reported. Far from demonstrating that kickbacks allowed Milberg to obtain higher fees, his study fails to rule out the possibility that other, entirely benign reasons could explain the higher fees Milberg received, including that the fees were earned by the results obtained in settlements of the indictment cases.


August 24, 2010 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, August 23, 2010

Cooperative Effort Between State and Federal Judges in Settling Mass Tort

The Fulton County Daily Report describes the settlement in lawsuits over vitamin supplements:

"DeKalb County State Court Judge Alvin T. Wong participated in the mass mediation at the request of U.S. District Court Judge R. David Proctor of the Northern District of Alabama, who presides over multidistrict federal litigation involving the Total Body Formula liquid supplements.

In addition to the 34 federal cases over the supplement, several dozen cases in state courts across the country were also pending. Wong said Proctor asked him to get involved in the mediation because he presided over about 60 cases, the largest number of state court cases."


August 23, 2010 in Federal Courts, Mass Torts | Permalink | Comments (0)

Thomas on the Seventh Amendment & Bankruptcy/Administrative Proceedings

Prof. Suja Thomas (Illinois) has posted on SSRN her forthcoming article, The Unconstitutionality of Administrative and Bankruptcy Adjudication of Damage Claims, which will be published in the Ohio State Law Journal. Here’s the abstract:

The Supreme Court has interpreted many parts of the Constitution to limit the power of Congress including, for example, Articles I, II and III and the First Amendment. This Symposium Article argues that another part of the Constitution, the Seventh Amendment, has not been viewed similarly by the Court, and that this view is incorrect. The Article first assumes that the Court has properly adopted the English common law in 1791 as the law governing the Seventh Amendment. Using this law, in decisions on whether a jury trial right exists for a cause of action created by Congress, the Court has analyzed both whether the cause of action is sufficiently analogous to an English common law cause of action and whether the relief sought is of the type decided by juries in English common law courts. This two-prong examination has occurred despite the fact that whether a jury heard a claim in England in 1791 was based, with very few exceptions, only on the second prong - the relief sought, with damages being heard by juries. Also, the Court has been deferential to Congressional decisions to place certain damages decisions in non-Article III forums, without a jury trial right, including in administrative agencies and bankruptcy courts. This Article argues that, at least in part because of this deferential way in which the Court has viewed Congress, the Seventh Amendment civil jury trial right has been improperly curtailed. The inquiry as to whether a jury trial right exists under the Seventh Amendment should be based only on the relief sought and a jury trial right exists for Congressionally-created causes of action with damages remedies, including ones that Congress has relegated to administrative agencies and bankruptcy courts.


August 23, 2010 in Recent Scholarship | Permalink | Comments (0)

Saturday, August 21, 2010

NYTimes Compares Administration of BP Fund to 9/11 Fund

The New York Times has a feature on Ken Feinberg and the new challenges of administering the BP Spill Fund.

From the article:

The attacks of Sept. 11 were largely fixed in time and place, killing almost 3,000 in a morning and raining destruction on three distinct areas: Lower Manhattan, the Pentagon and a field in Pennsylvania.

The oil spill, by contrast, is more open-ended. When the Deepwater Horizon rig exploded, 11 workers were killed and oil was sent gushing into the Gulf of Mexico for months, damaging the environment and the economies of at least four states for what could well be years.

The two funds are different, too. The Sept. 11 fund was created to compensate people who were injured in the attacks and the families of people who were killed, while the oil spill fund will largely compensate people and businesses for lost income.


August 21, 2010 in In the News, Mass Torts | Permalink | Comments (0)

Thursday, August 19, 2010

Professor Shannon Has Federal Pleading All Figured Out . . .

. . . or does he?  Professor Bradley Scott Shannon has posted "I Have Federal Pleading All Figured Out" on SSRN.  It is forthcoming in the Case Western Reserve Law Review.

The abstract states:

Actually (and to no one's surprise), I do not have federal pleading all figured out. But federal civil pleading is the topic of this draft article. The article considers various aspects of federal pleading under the Federal Rules of Civil Procedure and following the Supreme Court's decisions in Twombly and Iqbal in terms of what appear to be the three major types of pleading defects: factual insufficiency, legal insufficiency, and insufficiency of proof. The article also considers the problems posed by frivolous complaints and the divergence of federal and state pleading standards. Along the way, the article reaches a number of provocative and somewhat unconventional conclusions. I look forward to receiving your comments.


August 19, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 18, 2010

Huang on Interregional Recognition & Enforcement of Civil & Commercial Judgments in China

Professor Jie Huang (Duke University School of Law; Shanghai Institute of Foreign Trade School of Law) has posted "Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws" on SSRN.  It will be published in the Journal of Private International Law.

The abstract states:

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This article focuses on what lessons China may draw from the US and the EU to develop its interregional JRE laws. It first discusses the status quo of the interregional JRE in China. Then it explores how the interregional economic integration demands the establishment of a multilateral interregional JRE arrangement in China. Finally it points out the four most crucial challenges in developing this arrangement: the challenge relating to the socialist characters of Mainland law, conflicts between civil and common laws, weak mutual trust, and the lack of a court of final review for cases from all the three regions. It proposes solutions to each challenge by comparative studies with the US and the EU interregional JRE laws.


August 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Alabama Governor seeks to limit atty's fees in BP Spill Litigation

LegalNewsLine reports here.


August 17, 2010 in Class Actions, In the News, Mass Torts | Permalink | Comments (0)

Rau on Primary Jurisdiction

Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.

In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.

That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.

I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.

The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.

Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”

American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.


August 17, 2010 in International Courts, International/Comparative Law | Permalink | Comments (0)

Decision of Interest: Baseball, Steroids, and Personal Jurisdiction

The U.S. Court of Appeals for the Fifth Circuit has decided Clemens v. McNamee, No. 09-20625 (Aug. 12, 2010). If those names sound familiar, it’s because this case is the defamation action filed by baseball legend Roger Clemens against ex-trainer Brian McNamee based on McNamee’s statements that Clemens used performance-enhancing drugs. Clemens filed the case in Texas state court, and McNamee removed it to the U.S. District Court for the Southern District of Texas. The district court dismissed for lack of personal jurisdiction. A Fifth Circuit panel has now affirmed the dismissal in a 2-1 decision. From the majority opinion authored by Judge W. Eugene Davis:  

In this appeal, we consider whether allegedly defamatory statements made elsewhere but which caused damage to the plaintiff in the forum state are sufficient to confer personal jurisdiction over the defendant when the content and context of the statements lack any connection with the forum state. For the following reasons, we agree with the district court that the plaintiff failed to establish personal jurisdiction over the defendant and affirm.

. . .

The most instructive case on this issue from the Supreme Court is Calder v. Jones, 465 U.S. 783 (1984). . . . We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show (1) the subject matter of and (2) the sources relied upon for the article were in the forum state. Thus the question in this case further narrows to whether McNamee’s allegedly defamatory statements were aimed at or directed to Texas. . . . [T]he statements in this case concerned non-Texas activities–the delivery of performance-enhancing drugs to Clemens in New York and Canada. The statements were not made in Texas or directed to residents of Texas.

In support of jurisdiction, Clemens points to the harm he suffered in Texas and to McNamee’s knowledge of the likelihood of such damage in the forum. Yet . . . Clemens has not made a prima facie showing that McNamee made statements in which Texas was the focal point: the statements did not concern activity in Texas; nor were they made in Texas or directed to Texas residents any more than residents of any state. As such, the district court did not err in dismissing Clemens’ suit for lack of personal jurisdiction over McNamee.

From the dissenting opinion by Judge Catharina Haynes:

Because I conclude that specific jurisdiction exists here, I respectfully dissent. McNamee had sufficient minimum contacts with Texas, and the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.

. . .

In this case, there are two independent grounds upon which the minimum contacts inquiry is satisfied. First, McNamee made numerous business trips to Texas to train Clemens, and these trips “relate to” and form an integral part of the instant cause of action. Second, under the Calder “effects test,” McNamee established minimum contacts with Texas because, taking Clemens’s allegations as true, McNamee intentionally directed his false claims at Texas, where he knew Clemens resided and where it was foreseeable that the brunt of the injury from McNamee’s statements would be felt.

For additional coverage, see the Associated Press and How Appealing.


August 17, 2010 in Current Affairs, In the News, Recent Decisions | Permalink | Comments (1)

Monday, August 16, 2010

Williams and George on JPML Decisions

Margaret Williams (Federal Judicial Center) and Tracey George (Vanderbilt University) have posted Who Will Manage Complex Civil Litigation?: The Decision to Transfer and Consolidate Multidistrict Litigation to SSRN.

The United States Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, and nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the Panel controls where these disputes will be litigated. And, the Panel has substantial discretion in making that decision. In its forty years of existence, the Panel has transferred roughly 325,000 lawsuits including high-profile securities and derivative lawsuits (the collapse of Lehman Brothers and the Ponzi scheme of Bernie Madoff), consumer claims (Countrywide Mortgage’s lending practices), and mass torts ranging from the Vioxx litigation to the Union Carbine disaster in Bhopal to the bombing of Pan Am Flight 103. BP already has moved to consolidate and transfer more than 100 Gulf of Mexico oil spill suits filed against it in the various districts along the Gulf coast to the Southern District of Texas for pre-trial litigation, and potentially related suits filed in the future are likely to be transferred as well.

The current study provides the first empirical investigation of the Panel’s decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. The results provided here represent a draft paper based on a sample from an ongoing data project which ultimately will include all Panel orders.


August 16, 2010 in Federal Courts, MDLs | Permalink | Comments (0)

Dolak on Attorney Misconduct in IP Litigation

Professor Lisa A. Dolak (Syracuse University College of Law) has posted "Lawyers Acting Badly, or Not? Misconduct in IP Litigation: Recent Examples and the Issues They Raise" on SSRN. 

The abstract states:

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity. however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy. 

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. For example, trial judges have recently rebuked counsel for: 

• trying to prejudice jurors against the plaintiff patentee by asking them if they had “a problem with a company that puts its headquarters offshore on a Caribbean island in order to avoid paying U.S. taxes”, in violation of an order in limine; 
• “prolong[ing] the proceedings unnecessarily (thus unduly imposing upon the jury’s time), [seeking] to mislead both the jury and the Court, and [flouting] the governing claim construction as set forth by the Federal Circuit”; 
• “persist[ing] in improperly trying to equate [the patentee’s] infringement case with the current national banking crisis implying that [the patentee] was a banker seeking a ‘bailout’” 
• knowingly pursuing a meritless lawsuit; and 
• contributing to a “massive discovery failure”. 

In several of these and other cases, however, sanctions awards have been subsequently reversed or modified, including because the conduct at issue was viewed as insufficiently egregious, as not unreasonable, or even as entirely within the rights of the sanctioned firm or attorney. These reversals raise a number of issues, including whether reviewing courts are too tolerant, how trial judges are affected by litigation misconduct, sanctions proceedings, and reversals, what motivates aggressive litigation behavior, and the collateral consequences of litigation misconduct. Whatever the outcome, these decisions serve as sobering examples of how even intelligent, experienced counsel can get caught up in the heat of the battle that is modern intellectual property litigation, and the potentially devastating consequences of that conduct.


August 16, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Faculty Hiring Announcement: Charlotte School of Law

According to this announcement, the Charlotte School of Law is seeking applications from entry-level and lateral candidates for tenure-track faculty positions. One area of need is civil procedure. 

(Hat Tip: The Faculty Lounge)

August 16, 2010 | Permalink | Comments (0)