Wednesday, February 29, 2012

SCOTUS Decision on Preemption: Kurns v. Railroad Friction Products Corp.

Today, the Supreme Court issued its decision in Kurns v. Railroad Friction Products, covered earlier here. Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Kagan. Justice Kagan filed a separate concurring opinion as well.

Justice Sotomayor wrote an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Ginsburg.

Justice Thomas’s majority opinion begins:

This case requires us to determine whether petitioners’ state-law tort claims for defective design and failure to warn are pre-empted by the Locomotive Inspection Act (LIA), 49 U. S. C. §20701 et seq. The United States Court of Appeals for the Third Circuit determined that petitioners’ claims fall within the field pre-empted by that Act, as that field was defined by this Court’s decision in Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926). We agree.


February 29, 2012 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 28, 2012

No Cameras In the Courtroom? Try Puppets Instead!

The Wall Street Journal reports that a news station, WOIO 19 is covering one of Ohio's biggest corruption trials using puppets in a show called The Puppet's Court.  Because cameras are not allowed in the courtroom, reporter Kirk Maynard reenacts bits of testimony and trial with scenes like this: 


According to the WSJ, 

The result is a cross between "The Sopranos" and "The Muppet Show" that has elicited some complaints from viewers and hand-wringing from journalism professors. But since the trial began in January, "The Puppet's Court" has led a ratings surge for the station's late news show and won praise from some politicians.

I, personally, think it is one of the funniest things I've ever seen, and a genuinely creative response to some of the absurdities of American courts.  Perhaps next year I'll allow my students to perform a puppet show in lieu of the final exam.




February 28, 2012 in Current Affairs, State Courts, Television | Permalink | Comments (0)

Oral Argument Transcripts in Kiobel and Mohamad

Here are the transcripts from today's oral arguments in Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority.


February 28, 2012 in Supreme Court Cases | Permalink | Comments (0)

More Kiobel Coverage

Lots of coverage on Kiobel v. Royal Dutch Petroleum, which is being argued today:

One issue that isn’t squarely raised by the questions presented is whether the Alien Tort Statute applies to claims brought by one alien against another (as in Kiobel). Amanda Frost’s Academic Round-up for SCOTUSblog covers an essay by Anthony Bellia and Bradford Clark, which argues that the Alien Tort Statute applies only to claims brought by an alien against a U.S. citizen. Marco Simons has a response on Concurring Opinions.


February 28, 2012 in In the News, Recent Scholarship, Subject Matter Jurisdiction, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, February 27, 2012

Hoffman on Hubbard on Preservation Under the Federal Rules

Now available on the Courts Law section of JOTWELL is an essay by Prof. Lonny Hoffman (Houston) entitled A Modest Proposal on Preservation. It reviews an article by Prof. William Hubbard (Chicago), Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero.


February 27, 2012 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Computer Assisted Discovery in SDNY

Magistrate Judge Peck has issued an opinion in Moore v. Publicis Groupe, 11 Civ. 1279, permitting the use of computer assisted discovery in an employment discrimination class action pending in the S.D.N.Y.  The protocol will use trainable computer programs and a "seed set" of data coded by lawyers to engage in predicitve coding of a large number of documents.  

The opinion is notable not only for the ruling itself, but for the lucid descriptions of computer assisted discovery methods and how they may or may not apply to situations beyond the case at hand.

More coverage is available at Law Technology News.


February 27, 2012 in Discovery, Federal Courts | Permalink | Comments (0)

Preview of Tomorrow's Oral Arguments in Kiobel & Mohamad

Now available from the ABA is a preview by Prof. Jonathan Hafetz (Seton Hall) of Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. At issue in these cases (as covered earlier here) is whether corporations, organizations, and other defendants that are not natural persons may be sued under either the Alien Tort Statute or the Torture Victim Protection Act. They will be argued in tandem tomorrow.


February 27, 2012 in In the News, Supreme Court Cases | Permalink | Comments (0)

Sunday, February 26, 2012

BP Oil Spill Trial Delayed

The first phase of the trial was supposed to begin tomorrow before Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. It's been delayed until March 5. Story by Rebecca Mowbray of the Times-Picayune here.


February 26, 2012 in Current Affairs, In the News, Mass Torts | Permalink | Comments (0)

Saturday, February 25, 2012

Wasserman on the Jurisdictionality of the Ministerial Exception

Now available in the University of Pennsylvania Law Review’s PENNumbra is Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption by Prof. Howard Wasserman (Florida International). It begins:

On January 11, 2012, the Supreme Court decided the first significant case of the October 2011 Term, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. A unanimous Court held that a “called” teacher (a commissioned Lutheran minister) teaching secular subjects from a Christ-centered perspective could not prevail in an action challenging her termination under the Americans with Disabilities Act (ADA). The Court for the first time recognized the “ministerial exemption” to the ADA and other federal employment discrimination laws, affirming the uniform position of the federal courts of appeals . . . A second open issue surrounded the ministerial exemption prior to Hosanna-Tabor: its proper jurisdictional characterization. Is the exemption a jurisdictional limitation or an aspect of the merits of a claim? Does it reflect a First Amendment limitation on the reach of substantive secular law into matters of faith, doctrine, and church governance? Or does it limit the adjudicative jurisdiction of the courts in which such disputes might be resolved? Put differently, if and when the ministerial exemption defeats a claim in federal court, does the claim fail because the court lacks subject matter jurisdiction or because the plaintiff’s claim fails on the merits?


February 25, 2012 in Recent Scholarship | Permalink | Comments (0)

Friday, February 24, 2012

Fifth Circuit Holds Federal Law Preempts Texas Law in Drug Failure-to-Warn Case

The first paragraph of Lofton v. McNeil Consumer & Specialty Pharmaceuticals, No. 10-10956 (5th Cir. Feb. 22, 2012),

Christopher M. Lofton tragically died from a rare disease called Toxic Epidermal Necrolysis (“TEN”) after taking Motrin. Lofton’s wife and children brought suit against the Appellees [Defendants] asserting that Motrin caused the disease and the Appellees had failed to warn consumers about the risk of these severe autoimmune allergic reactions. The district court entered summary judgment for the Appellees. The only issue on appeal is whether the district court correctly found that federal law preempts a Texas tort reform law that requires plaintiffs to assert, in failure to warn cases, that a drug manufacturer withheld or misrepresented material information to the FDA. See TEX. CIV. PRAC. & REM. CODE § 82.007(b)(1). We agree with the district court and AFFIRM.


February 24, 2012 in Recent Decisions | Permalink | Comments (0)

Glashausser OpEd on the Exceptions Clause

Alex Glashausser (Washburn) has a great OpEd in the HuffPo on the Supreme Court and the exceptions clause.

From the post:

The federal judiciary, with its life tenure for unelected judges, has long been a punching bag in certain arenas. Several presidential candidates have recently taken jabs. Rick Santorum has resolved to "fight back" against "judicial tyranny." Newt Gingrich used that same rhetoric in an interview last month and has clamored for impeachment proceedings to coldcock judges who issue what Congress deems to be "unconstitutional decisions." Commentators have rushed in to defend judges' jurisprudential independence. Overlooked in the fracas, however, has been the equal need to safeguard courts' jurisdictional independence.


February 24, 2012 | Permalink | Comments (0)

Wednesday, February 22, 2012

SCOTUS Decision in Douglas v. Independent Living Center

Today the Supreme Court issued a 5-to-4 decision in a case involving the ability of Medicaid providers to bring suit challenging state laws that allegedly reduced reimbursement rates below what federal law required.  The case is Douglas v. Independent Living Center (when cert. was granted, the case was captioned Maxwell-Jolly v. Independent Living Center, covered earlier here). Justice Breyer’s majority opinion (joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan) begins:

We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law—a federal law that, in their view, conflicts with (and pre-empts) state Medicaid statutes that reduce payments to providers. Since we granted certiorari, how­ever, the relevant circumstances have changed. The fed­eral agency in charge of administering Medicaid, the Cen­ters for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal law. In light of the changed circumstances, we believe that the question before us now is whether, once the agen­cy has approved the state statutes, groups of Medicaid providers and beneficiaries may still maintain a Supremacy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the rea­sons set forth below, we vacate the Ninth Circuit’s judg­ments and remand these cases for proceedings consistent with this opinion.

Chief Justice Roberts authors a dissenting opinion (joined by Justices Scalia, Thomas, and Alito), which states:

The Court decides not to decide the question on which we granted certiorari but instead to send the cases back to the Court of Appeals, because of the recent action by CMS approving California’s new reimbursement rates. But the CMS approvals have no impact on the question before this Court. If, as I believe, there is no private right of action under the Supremacy Clause to enforce §30(A), that is the end of the matter. If, on the other hand, the Court be­lieves that there is such a cause of action, but that CMS’s recent rate approvals may have an effect on that action going forward, then the Court should say just that and then remand to the Ninth Circuit for consideration of the effect of the agency approvals.


February 22, 2012 in Supreme Court Cases | Permalink | Comments (1)

Coleman on Summary Judgment

Prof. Brooke Coleman (Seattle) has posted on SSRN a draft of her forthcoming essay, Summary Judgment: What We Think We Know Versus What We Ought to Know, which will appear in the Loyola University Chicago Law Journal. Here’s the abstract:

The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to be so saturated? This Essay answers that question by arguing that the work that has been done so far, while making an important contribution, does not begin to tell us what the true effect of summary judgment is on potential and actual litigants. This Essay argues that a key inquiry is missing: a systematic study of what is happening in summary judgment on the ground. In other words, what we do not know, but ought to know, is whether summary judgment sifts out meritorious cases and at what rate. We also need to know how the summary judgment process deters individuals with meritorious claims from filing. And, we need to know this information across the board, at both the state and federal level. The point of this Essay is to show that we think we know the answers to these questions based on the body of work that currently exists. While this body of work informs these inquiries, it does not answer them. This Essay argues that the use of this existing work to make principled arguments about the pros and cons of summary judgment will always fall short.


February 22, 2012 in Recent Scholarship | Permalink | Comments (0)

Post on Jurisdictional Issues in Fisher v. University of Texas

I've reposted Adam Chandler's post in "Just Enrichment" entitled "Navigating the Jurisdictional Thicket Around Fisher v. University of Texas" here.


February 22, 2012 | Permalink | Comments (0)

Monday, February 20, 2012

Pilot Program Introduces Protocols for Employment Cases

"A pilot program for the federal district courts introduces new pretrial procedures for certain types of federal employment cases, encouraging more efficient and less costly discovery."

The story is reported in The Third Branch here.


February 20, 2012 in Federal Courts | Permalink | Comments (0)

Thursday, February 16, 2012

Empirical Studies of Jury Participation, Supreme Court Ideology

Just published in the Journal of Empirical Legal Studies: two articles relating to Civil Procedure or Federal Courts:

(1) “Selected to Serve: An Analysis of Lifetime Jury Participation,” by Mary R. Rose, Shari Seidman Diamond, and Marc A. Musick. (available here)


Using a survey of a random sample of 1,380 Texas adults, we consider what factors distinguish those who have ever had an opportunity to serve on a jury from those who have not (“lifetime participation”). Residential stability and willingness to serve distinguished former jurors from those who had never been summoned or had never been questioned for a case. After controlling for age, neither race nor ethnicity accounted for participation, a finding replicated in data from another state. No factors differentiated former jurors from people who have been questioned but never selected. Our results strongly indicate that improvements to participation should focus on attrition that occurs before potential jurors reach the courtroom.

(2) “Consensus, Disorder, and Ideology on the Supreme Court,” by Paul H. Edelman, David E. Klein, and Stefanie A. Lindquist. (available here)


Ideological models are widely accepted as the basis for many academic studies of the Supreme Court because of their power in predicting the justices' decision-making behavior. Not all votes are easily explained or well predicted by attitudes, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to ideological accounts of judicial decision making. Are consensus and (ultimately) unanimity driven by extreme factual scenarios or extreme lower court rulings such that even the most liberal and most conservative justice can agree on the case disposition? Or are they driven by other, nonattitudinal influences on judicial decisions? In this article, we rely on a measure of deviations from expected ideological patterns in the justices' voting to assess whether ideological models provide an adequate explanation of consensus on the Court. We find that case factors that predict voting disorder also predict consensus. Based on that finding, we conclude that consensus on the Court cannot be explained by ideology alone; rather, it often results from ideology being outweighed by other influences on justices' decisions.


February 16, 2012 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Conference: Human Rights Litigation in State Courts and Under State Law

U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.

The panels look great:

9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far

  • Michael Goldhaber
  • Paul Hoffman
  • Austen Parrish
  • Moderator: Michael Robinson-Dorn

10:30 a.m.-10:45 a.m. Break

10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law

  • David Kaye
  • Chimène Keitner
  • Julian Ku
  • Ed Swaine
  • Moderator: Michael Ramsey

12:15 p.m.-1:30 p.m. Lunch

1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law

  • Patrick Borchers
  • Anthony Colangelo
  • Symeon Symeonides
  • Moderator: Trey Childress

3:00 p.m.-3:15 p.m. Break

3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law

  • Roger Alford
  • Lee Crawford-Boyd
  • Kristin Myles
  • Beth Stephens
  • Moderator: Chris Whytock


February 16, 2012 in Conferences/Symposia, International Courts, International/Comparative Law, State Courts | Permalink | Comments (0)

Monday, February 13, 2012

Minnesota Governor Vetoes So-Called “Tort Reform” Measures

Thank you, Governor Mark Dayton, for the common sense approach shown in your veto messages for four “tort reform” bills.  The full letters are available on the governor’s web site here.

Excerpts include:

“I am vetoing and returning Chapter 118, SF 149, which addresses the unrelated topics of conciliation court claim limits and class actions appeals.  These provisions are not consistent with the court’s recommendations for effectively addressing small claims, represent legislative meddling with court procedures best handled by the judiciary, and do not address legitimate problems in Minnesota.  A recent study by the National Center for State Courts revealed that 72% of the civil case load in Minnesota is consumed by small claims and contract matters, while civil tort claims represent less than 3% of the cases.  The Legislature should be addressing the areas of the court that consume the bulk of its workload.”

“I have vetoed and am returning Chapter 119, SF 373, which drastically lowers the statute of limitations for many important civil claims.  . . . I am perplexed by the charge that Minnesota is an excessively litigious state or has a negative civil justice system for business. According to the Minnesota Supreme Court, civil case filings for injury claims are down over 40% since 1997, despite our expanding population. . . .”

“I am vetoing and returning Chapter 120, SF 429, a measure that has been rejected several times by the legislature and the courts. . . . This legislation would require that attorneys' fee awards must be in proportion to the damages awarded in a civil case. This requirement would seriously undermine the legislative purpose for enacting statutes that allow Minnesota businesses, consumers, and employees to collect their damages - plus reasonable attorney fees - for certain wrongful conduct. A rule of proportionality would make it difficult, if not impossible, for individuals to bring important and meritorious claims of relatively small value. To ensure that those claims are brought forward, the legislature has shifted the costs of bringing the claim to the negligent party, and rightly so. This legislation removes that protection.  Further, the courts already review fee awards to ascertain that they are in relation to the recovery. However, the court will also consider other relevant factors like the time involved in the case and the nature of the controversy. No evidence has been presented that the current system is unfair to those found in violation of Minnesota laws.”

“I am vetoing and returning Chapter 121, SF 530, which would lower the interest rate on judgments for negligent parties and their insurance companies.  This bill is a step backwards for justice.”


February 13, 2012 in Current Affairs | Permalink | Comments (0)

Federal Judicial Center's Annual Report for 2011 Released

The report, among other things, summarizes research completed by the FJC last year.  You can access it here.


February 13, 2012 in Federal Courts | Permalink | Comments (0)

Hoffman's Analysis of FJC Study of Twombly/Iqbal Published

Professor Lonny Hoffman's article, "Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss" has just been published at 6 Fed. Cts. L. Rev. 1 (2012), available here

The abstract reads:

  This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after the U.S. Supreme Court’s decision in Ashcroft v. Iqbal. Three primary assessments are made of the FJC’s study. First, the FJC’s findings do not indicate that the Court’s decisions have had no effect on dismissal practice. To the contrary, the FJC found that after Iqbal, a plaintiff was twice as likely to face a motion to dismiss. This sizeable increase in the rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs. Similarly, the data regarding orders resolving dismissal motions demonstrates the consequential impacts of the Court’s cases, as in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Second, due to the inherent limitations of doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted before Twombly with after Iqbal does not indicate whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Finally, the data the FJC researchers gathered may be incomplete, particularly as to the filing rate. As a result, the study may be providing an incomplete picture of actual Rule 12(b)(6) activity.





February 13, 2012 in Federal Courts, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)