Tuesday, April 30, 2013

Call For Papers: First Annual Workshop for Corporate & Securities Litigation

See below for details...

The University of Illinois College of Law and the University of Richmond School of Law invite submissions for the First Annual Workshop for Corporate & Securities Litigation.  This workshop will be held on Friday, November 8, 2013, in Chicago, Illinois.

OVERVIEW: This annual workshop will bring together scholars focused on corporate and securities litigation to present their works-in-progress.  Papers addressing any aspect of corporate and securities litigation or enforcement are eligible.  Appropriate topics include, but are not limited to, securities litigation, fiduciary duty litigation, or comparative approaches to business litigation.  We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis.

Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Illinois College of Law in Chicago, Illinois, on Friday November 8, 2013. Local costs (lodging and workshop meals) will be covered.  Participants are asked to pay for their own travel expenses. 

The workshop is designed to maximize discussion and feedback. All participants will have read the selected papers.  The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved. 

SUBMISSION PROCEDURE: If you are interested in participating, please send an abstract of the paper you would like to present to Jessica Erickson at [email protected]  not later than Friday, May 31, 2013.  Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 28.   

Questions: Any questions concerning the workshop should be directed to the organizers—Professor Verity Winship ([email protected]) and Professor Jessica Erickson ([email protected]).


April 30, 2013 in Conferences/Symposia | Permalink | Comments (0)

Thursday, April 25, 2013

Happy 75th Birthday, Erie!

Seventy-five years ago today, the Supreme Court issued its decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).


April 25, 2013 in Federal Courts, Supreme Court Cases | Permalink | Comments (1)

Wednesday, April 24, 2013

Call For Papers: Conference for Empirical Legal Studies

The Eighth Annual Conference on Empirical Legal Studies has issued a call for papers.  Submissions are due July 3, 2013 and will be peer-reviewed.  The conference will be held at the University of Pennsylvania Law School on October 25-26, 2013.


April 24, 2013 in Conferences/Symposia | Permalink | Comments (0)

Tuesday, April 23, 2013

Compensating Boston Victims with a Fund

The ubiquitous Kennth Feinberg has arrived in Boston to help administer a compensation fund for the victims of the marathon bombing.  The fund, One Fund Boston, was established by Boston's mayor and is supported by private donations.  The NYTimes reports here.


April 23, 2013 | Permalink | Comments (0)

Monday, April 22, 2013

NYLS Law Review Special Issue on Iqbal and Employment Discrimination


The New York Law School Law Review is pleased to announce the forthcoming publication of


Trial by Jury or Trial by Motion?

Summary Judgment, Iqbal, and Employment Discrimination


An invaluable resource for employment lawyers


Pre-order your copy by Monday, April 15, 2013 here.


$19.95 (shipping included)

$16.95 for NELA Members

For multiple copy and international orders,

contact [email protected] or (212) 431-2109.


The articles in this issue by federal judges, practitioners, and scholars examine in-depth the high failure rate of plaintiffs in employment discrimination cases and propose specific, practical strategies for lawyers and policymakers to address, and reverse, the trend.


  • Introduction by Arthur S. Leonard, Professor of Law, New York Law School.
  • Summary Judgment in Employment Discrimination Cases: A Judge's Perspective by Hon. Denny Chin, U.S. Circuit Court Judge, U.S. Court of Appeals for the Second Circuit.
  • Essay: From the "No Spittin', No Cussin' And No Summary Judgment" Days of Employment Discrimination Litigation to the "Defendant's Summary Judgment Affirmed Without Comment" Days: One Judge's Four-Decade Perspective by Hon. Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa.
  • The Jury (Or More Accurately the Judge) is Still Out for Civil Rights & Employment Cases Post-Iqbal by Suzette M. Malveaux, Associate Dean of Academic Affairs and Associate Professor of Law, The Catholic University of America, Columbus School of Law.
  • Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination and Summary Judgment by Hon. Bernice B. Donald, U.S. Circuit Court Judge, U.S. Court of Appeals for the Sixth Circuit; and J. Eric Pardue, Associate, Vinson & Elkins LLP.
  • "Only Procedural": Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases by Elizabeth M. Schneider, Rose L. Hoffner Professor of Law, Brooklyn Law School; and Nancy Gertner, Professor of Practice, Harvard Law School and U.S. District Court Judge, District of Massachusetts (Ret.).
  • Judges and Inferences in Employment Lawsuits: A Case Study by David L. Lee, Principal, Law Offices of David L. Lee; and Jennifer C. Weiss, Principal, Law Offices of Jennifer C. Weiss.
  • Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases by Deborah Thompson Eisenberg, Assistant Professor of Law, University of Maryland Francis King Carey School of Law and Director, Center for Dispute Resolution.
  • Documenting the Poor Quality of Plaintiffs' Briefings in Appellate and District Court Employment Discrimination Litigation by Scott A. Moss, Associate Professor of Law, University of Colorado Law School.
  • Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano by Ann C. McGinley, William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas.


Papers were presented at the Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination conference held at New York Law School in April 2012. View the conference videos on our website, on YouTube, and on iTunesU (search "New York Law School").


Questions? Contact the Law Review at [email protected] or 212-431-2109.


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About the New York Law School Law Review 

The New York Law School Law Review is a journal of legal scholarship edited and published by students at New York Law School four times a year. The Law Review is the largest law review in the United States, with 2012-2013 membership of more than 140 students, led by an editorial board assisted by staff editors, online staff editors, and members, working together with a full-time faculty publisher, to make all editorial and publication decisions. The Law Review has both a scholarly and an educational mission. It serves as an academic forum for legal scholarship by sponsoring four symposia each year and publishing the scholarship produced through those events. The Law Review also offers its students an important learning and professional development experience, providing opportunities for members to develop their writing, research, and editing skills, as well as other skills that are important for the successful practice of law, including communication, organizational, and project management skills. The Law Review is printed by Joe Christensen, Inc., in Lincoln, Nebraska. The Law Review's editorial and general offices are located at New York Law School, 185 West Broadway, New York, NY 10013.


Find more information on the Law Review's website at nylslawreview.com 


April 22, 2013 in Conferences/Symposia | Permalink | Comments (0)

Is today's cert grant in Daimler v. Bauman a follow-up to Kiobel, or a follow-up to Goodyear?

Some early blog and twitter chatter casts the Supreme Court’s cert grant in DaimlerChrysler AG v. Bauman as a sequel to last week’s Kiobel decision on the Alien Tort Statute (ATS). Although Daimler is an ATS case, the Court does not seem poised to revisit its test (such as it is) for extraterritorial application of the ATS. The question presented in Daimler is about personal jurisdiction in general—actually, it’s about general personal jurisdiction in general. According to the defendant’s petition for certiorari, “[t]he question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

This question calls to mind an issue from the Court’s 2011 Goodyear decision—one that Justice Ginsburg’s unanimous opinion acknowledged but did not address. The petitioners in Goodyear were foreign subsidiaries of an American parent company, and they objected to personal jurisdiction in North Carolina state court. Here’s an excerpt from the end of the Court’s opinion [131 S. Ct. at 2857]:

Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners' ties to North Carolina with those of Goodyear USA and other Goodyear entities. See Brief for Respondents 44–50. In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. See Brilmayer & Paisley, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Cal. L. Rev. 1, 14, 29–30 (1986) (merging parent and subsidiary for jurisdictional purposes requires an inquiry “comparable to the corporate law question of piercing the corporate veil”). But see 199 N.C.App., at 64, 681 S.E.2d, at 392 (North Carolina Court of Appeals understood that petitioners are “separate corporate entities ... not directly responsible for the presence in North Carolina of tires that they had manufactured”). Neither below nor in their brief in opposition to the petition for certiorari did respondents urge disregard of petitioners' discrete status as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well. 

One caveat, of course, is that the Supreme Court’s ultimate decisions do not always hew closely to the precise questions for which it has granted certiorari. But if the Court’s concern in Daimler is the extraterritorial application of the ATS, I suspect it would have GVR’d the case for reconsideration in light of Kiobel—as it did today with another Ninth Circuit ATS case (Rio Tinto v. Sarei).


April 22, 2013 in Adam Steinman, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Grants Cert in Another Personal Jurisdiction Case: DaimlerChrysler v. Bauman

Today the Supreme Court granted certiorari in DaimlerChrysler AG v. Bauman (No. 11-965). Here is the question presented (from the defendant’s cert petition):

Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents—because it has a different, indirect subsidiary that distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements necessary to maintain their separate corporate identities.

The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.

You can find a link to the Ninth Circuit’s decision below and other information about the case at SCOTUSblog’s casefile.


April 22, 2013 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, April 20, 2013

Boyd et al. on Clusters of Causes of Action in Federal Complaints

            The Journal of Empirical Legal Studies has published online an article by Christina L. Boyd, David A. Hoffman, Zoran Obradovic, and Kosta Ristovsk entitled "Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints."


This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court data set of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to lay the foundation for a more precise and useful taxonomy of federal litigation than has been previously available, one that, after the Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), has also arguably never been more relevant than it is today.


April 20, 2013 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Supreme Court Adopts Amendments to Federal Rules

This week the Supreme Court adopted the latest round of amendments to the Federal Rules. Unless Congress intervenes, the new rules will take effect on December 1, 2013. The Civil Rules amendments involve FRCPs 37 & 45.

Links to the Supreme Court orders adopting the rules are below:

More details about the amendments can be found in the September 2012 Report of the Judicial Conference.


April 20, 2013 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, April 18, 2013

Decision of Interest: Erie and Donald Trump in the Ninth Circuit

Yesterday the U.S. Court of Appeals for the Ninth Circuit decided Makaeff v. Trump University, __ F.3d __, 2013 WL 1633097, No. 11-55016. As the opinion explains, “California law provides for the pre-trial dismissal of certain actions, known as Strategic Lawsuits Against Public Participation, or SLAPPs, that ‘masquerade as ordinary lawsuits’ but are intended to deter ordinary people ‘from exercising their political or legal rights or to punish them for doing so.’” [Slip Op. 10] Ms. Makaeff invoked California's anti-SLAPP statute and moved to strike Trump University’s defamation counterclaim against her. The district court denied her motion, but the Ninth Circuit reverses and remands for the district court to apply California’s anti-SLAPP law and to consider whether Trump had shown “a reasonable probability of proving, by clear and convincing evidence, that Makaeff made her critical statements with actual malice.” [Slip Op. 32-33]

Two judges on the three-judge panel—Judge Kozinski and Judge Paez—author concurring opinions questioning whether California’s anti-SLAPP statute properly applies in federal court under the Erie doctrine. Here are some excerpts from Judge Kozinski’s concurrence [Slip Op. 32-37]:

I join Judge Wardlaw’s fine opinion because it faithfully applies our law, as announced in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999), and its progeny. But I believe Newsham is wrong and should be reconsidered.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), divided the law applicable to diversity cases into two broad categories. Overruling Swift v. Tyson, 41 U.S. 1 (1842), it held that state law, rather than federal common law, applies to matters of substance. Erie, 304 U.S. at 78–79. But when it comes to procedure, federal law governs. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 & n.7 (1996); see also Hanna v. Plumer, 380 U.S. 460, 473 (1965) (“Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts . . . .”).

In most cases, it’s easy enough to tell whether a rule is substantive or procedural. Whether a defendant is liable in tort for a slip-and-fall, or has a Statute of Frauds defense to a contract claim, is controlled by state law. Just as clearly, the time to answer a complaint, the manner in which process is served, the methods and time limits for discovery, and whether the jury must be unanimous are controlled by the Federal Rules of Civil Procedure. The latter is true, even though such procedural rules can affect outcomes and, hence, substantive rights. See Hanna, 380 U.S. at 471.

But the distinction between substance and procedure is not always clear-cut. While many rules are easily recognized as falling on one side or the other of the substance/procedure line, there are some close cases that call for a more nuanced analysis. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010); Gasperini, 518 U.S. at 428.…

Continue reading

April 18, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Schwartz on a Substantive Right to Class Proceedings

Michael Schwartz has posted his student note, A Substantive Right to Class Proceedings: The False Conflict Between the FAA and the NLRA to SSRN.  

In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently considered this question have declined to follow the NLRB and have enforced similar class waivers.

This Note argues that the NLRB was correct in declaring unenforceable class waivers in employment arbitration agreements. It concludes that because employees’ right to invoke class proceedings under the NLRA is a substantive rather than procedural right, the unwaivability of this right creates no conflict with the FAA, even under the Supreme Court’s broad interpretation of the statute.


April 18, 2013 | Permalink | Comments (0)

Wednesday, April 17, 2013

SCOTUS Decision in Kiobel v. Royal Dutch Petroleum

Today the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), a long-pending case involving the Alien Tort Statute (ATS). Although the Court is unanimous that the ATS does not provide jurisdiction in this particular case, there is a 5-4 split on the reasoning.

Chief Justice Roberts authors the majority opinion, joined by Scalia, Kennedy, Thomas, and Alito. In addition, Justice Kennedy files a concurring opinion, and Justice Alito files a concurring opinion that Thomas joins.

Justice Breyer authors an opinion concurring in judgment, joined by Ginsburg, Sotomayor, and Kagan.


April 17, 2013 in Federal Courts, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Dodge on Disaggregative Mechanisms

Jaime Dodge (University of Georgia) has posted Disaggregative Mechanisms: The New Frontier of Mass-Claims Resolution Without Class Actions to SSRN.

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of common questions that has been the hallmark of traditional mass claims litigation. Disaggregation returns to a focus on the individual akin to that of the single-plaintiff system, but uses either procedural or substantive streamlining, or a shift of costs to the defendant, to correct the asymmetries that prompted the creation of class actions. Many of our most innovative claims structures — from the BP GCCF and the fund created in the wake of the Costa Concordia disaster, to the common single-plaintiff arbitration clauses in consumer and employment agreements — use this new, bottom-up model of disaggregative mass claims resolution instead of the familiar top-down aggregative model.

These next-generation systems have been heralded as a significant advancement in mass claims resolution, capable of awarding more compensation to claimants more quickly and at lower cost than aggregate litigation. But like the single-plaintiff and aggregate litigation systems that preceded it, disaggregation has its flaws. Because the defendant typically designs these systems, they often give rise to questions about legitimacy and the accuracy of compensation. More shockingly, situating disaggregation within the existing doctrinal trends reveals that the rise of disaggregation allows corporations to avoid class actions in a far broader swath of cases than has previously been identified — such that class actions will, as a practical matter, proceed only at the defendant’s election, raising substantial questions about the viability of private actions as a mechanism for the enforcement of law. Yet, because these systems are the product of contract, attempts to restrict these systems have largely failed. The answer to these problems lies in an unlikely and potentially controversial approach: expanding rather than restricting the availability of disaggregation, by creating a public mechanism for disaggregation — comparable to the existing public aggregation mechanisms.


April 17, 2013 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tuesday, April 16, 2013

SCOTUS decision in Genesis Healthcare Corp. v. Symczyk: Article III, mootness, and Rule 68 (or not)

Today the Supreme Court decided Genesis Healthcare Corp. v. Symczyk (No. 11-1059), which addresses whether collective action claims under the Fair Labor Standard Act (FLSA) are “justiciable when the lone plaintiff’s individual claim becomes moot.” [Slip Op. 1]. The Court splits 5-4, with Justice Thomas writing the majority opinion (joined by Roberts, Scalia, Kennedy, and Alito) and Justice Kagan writing the dissent (joined by Ginsburg, Breyer, and Sotomayor).

The Third Circuit had held that the Symczyk’s claim was moot because the defendant had made a Rule 68 offer of judgment that would have “fully satisfied” her claim, even though the plaintiff did not accept the offer. Although there is a circuit split on “whether an un­accepted offer that fully satisfies a plaintiff ’s claim is sufficient to render the claim moot,” Justice Thomas and the majority decline to resolve it--finding that Symczyk had conceded the issue. [Slip Op. at 5.] They therefore “assume, without deciding, that petitioners’ Rule 68 offer mooted respond­ent’s individual claim” [Slip Op. 5], and they ultimately conclude [Slip Op. 6]:

In the absence of any claimant’s opting in, respondent’s suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and “other employees similarly situated,” 29 U.S C. § 216(b), the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.

In dissent, Justice Kagan rejects the idea that Symczyk’s individual claim was moot, noting that “an unaccepted offer of judgment cannot moot a case.” [Dissenting Op. 3] She adds: “So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home.” [Dissenting Op. 4]

Given the majority’s failure to address whether an unaccepted Rule 68 offer renders a claim moot--and Justice Kagan's forceful critique of that notion--the broader implications of Genesis are unclear. If lower federal courts accept Justice Kagan’s “friendly suggestion,” then she would be correct that Genesis is “the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so.” [Dissenting Op. 1]. But if any circuits continue to follow the mootness-by-unaccepted-offer theory, Genesis ratifies a strategy that allows “defendants to ‘pick off’ named plaintiffs with strategic Rule 68 offers before certification." [Slip Op. 3] Even on that point, the majority’s reasoning is confined to the FLSA scenario--rather than, say, Rule 23 class actions. Justice Thomas notes that “Rule 23 actions are fundamentally different from collective actions under the FLSA.” [Slip Op. 6].


April 16, 2013 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

CALL FOR PAPERS: 6th Annual Junior Faculty Federal Courts Workshop

Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Court Workshop on October 4-5, 2013.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars will be announced shortly.

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, Civil Procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also  open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 3, then panels on Friday, October 4 and Saturday, October 5. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Brooklyn Law School will provide all meals for those attending the workshop, including a welcome dinner on Thursday and a reception on Friday.

Those wishing to present a paper must submit an Abstract by June 16, 2013. Papers will be selected by a committee of past participants; presenters will be notified by early July. Those planning to attend must register by August 26, 2013. 

We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at [email protected].

In the meantime, please save the dates of October 4-5.

April 16, 2013 in Conferences/Symposia | Permalink | Comments (0)

Miller on the Deformation of Federal Civil Procedure

Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:

When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.

The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.

All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.

Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.


April 16, 2013 in Class Actions, Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Mullenix on Sachs on Personal Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix (Texas) entitled Fixing Personal Jurisdiction. It reviews a recent article by Stephen Sachs (Duke), How Congress Should Fix Personal Jurisdiction.


April 16, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, April 15, 2013

SCOTUS Cert Grant on Younger Abstention: Sprint v. Jacobs

Today the Supreme Court granted certiorari in Sprint Communications Co., L.P. v. Jacobs (No. 12-815). Here is the question presented:

Whether the Eighth Circuit erred by concluding, in conflict with decisions of nine other circuits and this Court, that Younger abstention is warranted not only when there is a related state proceeding that is “coercive” but also when there is a related state proceeding that is, instead, “remedial.”

You can find a link to the Eighth Circuit’s decision below and other information about the case at SCOTUSblog’s casefile.


April 15, 2013 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Friday, April 12, 2013

Epstein on Comcast v. Behrend

Professor Richard Epstein (NYU) has a post on PointofLaw.com entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:

The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.


April 12, 2013 in Class Actions, Supreme Court Cases, Weblogs | Permalink | Comments (1)

Grimmelman on Future Conduct and Class Actions

James Grimmelman (New York Law School) has posted Future Conduct and the Limits of Class-Action Settlements to SSRN.

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.


April 12, 2013 in Class Actions, Recent Scholarship | Permalink | Comments (0)