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O'Hara & Ribstein on Conflict of Laws and Choice of Law
Posted on November 21, 2009Professor Erin A. O'Hara (Vanderbilt University School of Law; Gruter Institute for Law and Behavioral Research) and Professor Larry E. Ribstein (University of Illinois College of Law) have posted "Conflict of Law and Choice of Law" on SSRN as part...
Seinfeld on Article III and the Limits of Enumeration
Posted on November 20, 2009Professor Gil Seinfeld (Michigan) has posted on SSRN his article, Article I, Article III, and the Limits of Enumeration, which will be published in the Michigan Law Review. Here's the abstract: Article I, § 8 and Article III, § 2...
Michelman on standing to sue over government surveillance
Posted on November 19, 2009Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc to SSRN. Abstract: The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive...
Pether on Constitutional Solipsism
Posted on November 19, 2009Professor Penelope Pether (Villanova University School of Law) has published "Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits' Nonprecedential Status Rules are (Profoundly) Unconstitutional" on SSRN. The article will be published in the...
Pimentel P.S.
Posted on November 18, 2009Last year, the Supreme Court decided the case of Republic of Philippines v. Pimentel, 128 S. Ct. 2180 (2008) in which it held that the government of the Philippines and a government entity were necessary parties to an interpleader action....
Thomas on the standard for motions to dismiss after Iqbal and Twombly
Posted on November 18, 2009Professor Suja A. Thomas (University of Illinois College of Law) posted "The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly" on SSRN as part of the Working Paper Series. The abstract states: Civil procedure scholars have...
Hot Off The Presses: Recent Articles Of Interest
Posted on November 17, 2009With a hat tip to the latest installment of the Current Index of Legal Periodicals, here are some recent articles that may be of interest: Dustin E. Buehler, Revisiting Rooker-Feldman: Extending the Doctrine to State Court Interlocutory Orders, 36 Fla...
Administrative procedure in Europe
Posted on November 16, 2009Anne Meuwese, Ymre Schuurmans, and Wim J. M. Voermans, have posted Towards a European Administrative Procedure Act on SSRN. Abstract: Under the joint responsibility of the Member States to implement EU law, administrative law systems of the EU are converging...
Geyh on Judicial Independence
Posted on November 16, 2009Charles G. Geyh (Indiana University Bloomington School of Law) has posted "Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence" on SSRN. It will be published in...
Amended Settlement Agreement in Google Book Class Action
Posted on November 16, 2009As covered earlier here, the FRCP 23(e) fairness hearing on the controversial settlement in the Google Book class action -- originally scheduled for last month -- was postponed by U.S. District Judge Denny Chin. The reason was "ongoing negotiations with...
Burger King franchisees strike back
Posted on November 15, 2009The franchisees are suing over losses stemming from the $1 menu promotion. Perhaps, hidden somewhere down the road, another civil procedure issue is in the making! RJE
Conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court"
Posted on November 14, 2009George Washington University Law School is hosting a conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court" on November 20, 2009. The conference website states: This conference explores laws governing the structure and operation of...
Coverage of SCOTUS Argument in Hertz Corp. v. Friend (Where Is a Corporation's Principal Place of Business?)
Posted on November 13, 2009One notable event during this oral argument (previewed here and covered here) was this exchange between Chief Justice Roberts and respondent's counsel: MR. SCHNEIDER: Mr. Chief Justice, did the Court have interest in the jurisdictional argument? CHIEF JUSTICE ROBERTS: I...
9th Circuit rules on appointment of counsel under the PSLRA
Posted on November 12, 2009The Ninth Circuit has ruled in Cohen v. Northern District of California, 2009 WL 3681701, that the PSLRA gives district judges the authority to appoint the lead plaintiff in securities class actions, but that this power does not extend to...
Civil Procedure Section Program at the AALS Annual Meeting
Posted on November 12, 2009In case you missed it on the civ pro listserv, Professor Patrick Woolley provided this information about the Civil Procedure Section program at the AALS Annual Meeting: The civil procedure program at the annual meeting will be held on Friday,...
Rotunda on Procedural Rules for Military Trials
Posted on November 12, 2009Professor Kyndra K. Rotunda (Chapman University School of Law) has posted "A Comparative Historical Analysis of War Time Procedural Protections and Presidential Powers: From the Civil War to the War on Terror" on SSRN. It will be published in the...
Fitzpatrick on The Politics of Merit Selection
Posted on November 11, 2009Professor Brian T. Fitzpatrick (Vanderbilt Law School) has posted "The Politics of Merit Selection" on SSRN. It will be published in the Missouri Law Review. Abstract: In this Article, I undertake an evaluation of a method of judicial selection known...
Judicial reform in France
Posted on November 11, 2009The Sarkozy government is planning to reform the judiciary in France, eliminating many of the investigative powers of magistrate judges and giving more power to prosecutors. The AP reports on the proposed changes here, however, the article does not make...
Erichson: Reflections on the Adjudication-Settlement Divide
Posted on November 11, 2009Professor Howard Erichson (Fordham) has posted on SSRN Forward: Reflections on the Adjudication-Settlement Divide, 78 Fordham L. Rev. (2009). Here's the abstract: This Foreword introduces the papers of the 2009 Fordham Law Review symposium, Against Settlement: Twenty-Five Years Later...
Today's SCOTUS argument in Hertz Corp. v. Friend: Where is a corporation's "principal place of business"?
Posted on November 10, 2009As previewed earlier here, Hertz Corp. v. Friend presents the question of how to determine a corporation's principal place of business for purposes of diversity jurisdiction. The transcript from today's oral argument is available here. --A PS: Numerologists among you...
The increasing importance of venue?
Posted on November 09, 2009The National Law Journal reports on the recent transfer of part of a patent case and wonders whether it is indicative of the "federal courts' shifting approach to patent litigation venue battles" prompted by the Federal Circuit's decision in In...
Hot Off The Presses: Recent Articles of Interest
Posted on November 09, 2009With a hat tip to last week's Current Index of Legal Periodicals, here are some recent publications that may be of interest: Anthony V. Alfieri, Jim Crow Ethics and the Defense of the Jena Six, 94 Iowa L. Rev. 1651...
2009 Jahre Mauerfall: Fest der Freiheit
Posted on November 09, 2009OK, I admit, this is not civil procedure! I'm in Berlin to celebrate 20 years since the fall of the Berlin Wall on this day in 1989 and I wanted to share a photo from the celebration. This photo shows...
Reuveni on extraterritoriality, standing, and the securities laws
Posted on November 08, 2009Erez Reuveni has posted Extraterritoriality as Standing: A Standing Theory of the Extraterritorial Application of the Securities Laws on SSRN. Abstract: This Article contends that the current treatment of the extraterritorial scope of the 1934 Securities and Exchange Act as...
Redish, Julian, & Zyontz on Cy Pres Relief and the Pathologies of the Modern Class Action
Posted on November 07, 2009Martin Redish (Northwestern), Peter Julian (Northwestern), and Samantha Zyontz (Searle Civil Justice Institute) have posted "Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis" on SSRN. It will be published in the Florida...
Hatamyar on the Empirical Impact of Twombly and Iqbal
Posted on November 06, 2009Professor Patricia Hatamyar (St. Thomas, Florida) has a forthcoming article in the American University Law Review that may be of interest to our readers. The article is The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, and it's available...
Upcoming Supreme Court Argument: Hertz Corp. v. Friend (Tuesday 11/10)
Posted on November 05, 2009The march of Supreme Court arguments in the civil procedure & federal courts area continues next week in Hertz Corp. v. Friend (No. 08-1107). (For our coverage of other arguments of interest this Term, see here, here, and here.) This...
Henderson on the role of Twombly and Iqbal in mutual fund compensation actions
Posted on November 05, 2009Continuing the trend of scholars from inside and outside of the civil procedure realm to study the possible ramifications of Twombly and Iqbal, M. Todd Henderson (University of Chicago) has posted an essay entitled Justifying Jones to SSRN. Abstract: This...
Tarkington on Impugning Judicial Integrity in Court Proceedings
Posted on November 05, 2009Margaret Tarkington (BYU J. Reuben Clark Law School) has posted "A Free Speech Right to Impugn Judicial Integrity in Court Proceedings" on SSRN. It is forthcoming in the Boston College Law Review. The abstract states: Throughout the United States, state...
Lahav on lawyering in unjust circumstances
Posted on November 04, 2009Alexandra Lahav (University of Connecticut) has posted Portraits of Resistance: Lawyer Responses to Unjust Proceedings on SSRN. Abstract: This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent...
Schauer on the Supreme Court's Case Selection Process
Posted on November 04, 2009Frederick Schauer has posted "Is it Important to Be Important? Evaluating the Supreme Court's Case Selection Process," to be published in the Yale Law Journal. Abstract: The Supreme Court has been criticized for taking and deciding too few cases, with...
Yesterday's SCOTUS Argument in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.
Posted on November 03, 2009As previewed earlier here, Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. considers whether New York's bar on class actions for certain statutory-damages claims (N.Y. C.P.L.R. 901(b)) precludes class certification in a federal court diversity action...
Cert. Grant Today: Federal Jurisdiction over Constitutional Challenge to Ohio's Tax Benefits for Local Natural Gas Distributors (Levin v. Commerce Energy Inc.)
Posted on November 02, 2009Today the Supreme Court granted certiorari in Levin v. Commerce Energy Inc. (09-223). The questions presented are: (1) Did Hibbs v. Winn, which addressed the scope of the Tax Injunction Act's bar against federal cases seeking to enjoin the assessment...
Kansas Supreme Court Considers Constitutionality of Damages Caps
Posted on November 02, 2009Last week the Kansas Supreme Court heard oral argument in Miller v. Johnson, a medical malpractice case challenging the constitutionality of a Kansas statute that caps damages for noneconomic loss at $250,000. The docket is available here. For additional coverage,...
Monday morning humor
Posted on November 02, 2009Courtesy of Courtoons: http://www.courtoons.net/wp-content/uploads/2009/10/twombly.jpg RJE
Maxeiner on Litigation Cost and Fee Allocation in the U.S.
Posted on November 02, 2009James R. Maxeiner (University of Baltimore School of Law) has posted "Cost and Fee Allocation in Civil Procedure: United States of America National Report," which will be published in the American Journal of Comparative Law. Abstract: This report summarizes critically...
Just in time for Halloween: "Something Judicious this Way Comes"
Posted on October 31, 2009Michael J. Higdon (University of Tennessee College of Law) has posted "Something Judicious this Way Comes . . . The Use of Foreshadowing as a Persuasive Device in Judicial Narrative." Abstract: With the recent publication of Judge Richard Posner?s book...
Symposium Today: "Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz"
Posted on October 30, 2009The 2009 Kansas Law Review symposium, Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz, is occurring today at the University of Kansas. Details are available here. Speakers include: Elizabeth Chamblee Burch, Assistant Professor of Law, Florida State University College...
Pepsi Facing $1.26 Billion Default Judgment in Wisconsin
Posted on October 29, 2009Reuters is reporting: "A Wisconsin judge has ordered PepsiCo Inc to pay $1.26 billion to two men who said it stole their idea to sell purified water after a secretary mislaid a document alerting the world's No. 2 soft drink...
What sort of lawyer does not love Pennoyer--especially this time, when it's put in a rhyme?
Posted on October 29, 2009Elizabeth Chamblee Burch (Florida State University College of Law) has posted "There's a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss." Abstract: This is what it purports to be: a Seussian take on civil procedure. It?s a short,...
Wyeth v. Levine Scholarship Roundup
Posted on October 29, 2009Earlier this year the Supreme Court rejected federal preemption of tort claims for FDA regulated prescription drugs in Wyeth v. Levine, 129 S.Ct. 1187 (2009). Since that time several commentators have weighed in on the decision. After the jump, I...
Webcast of Congressional Hearing on Ashcroft v. Iqbal Now Available
Posted on October 29, 2009For those who were unable to attend or watch the live webcast of this week's congressional hearing on Ashcroft v. Iqbal (see our earlier posts here and here), the archived webcast is now available on the House Judiciary Committee's website....
Ramseyer on the relationship between universal health insurance and malpractice claims
Posted on October 28, 2009J. Mark Ramseyer (Harvard Law School) has posted The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience. Abstract: Japanese patients file relatively few medical malpractice claims. To date, scholars have tried to explain this phenomenon by identifying...
Upcoming Supreme Court Argument: Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. (Monday 11/2)
Posted on October 28, 2009The Supreme Court will come off Halloween weekend in Erie fashion with Monday's oral argument in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. (No. 08-1008), which considers whether New York's bar on class actions for certain statutory-damages claims (N...
AALS 2010 "Hot Topics" Call for Proposals
Posted on October 28, 2009The AALS has issued this call for proposals on hot topics for the 2010 Annual Meeting: Time is being reserved in the Annual Meeting schedule for programs devoted to late-breaking legal issues or topics. Faculty members who are interested in...
Prof. Thomas on Iqbal, Twombly, and "The New Summary Judgment Motion"
Posted on October 27, 2009Professor Suja Thomas (Illinois) has posted her essay The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly on SSRN. Here's the abstract: Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme...
Congressional Hearing on Ashcroft v. Iqbal (UPDATE)
Posted on October 26, 2009Here's a quick update on our earlier post about the congressional hearing, "Access to Justice Denied - Ashcroft v. Iqbal." The Judiciary Committee's website reflects a new location and now includes a list of witnesses, which includes: Arthur R. Miller...
E-Marriage -- using jurisdictional creativity to achieve marriage equality across state lines
Posted on October 26, 2009Adam Candeub and Mae Kuykendall have launched a novel project at Michigan State University, College of Law. E-marriage would allow couples to combine the law of one jurisdiction with the physical location of another. In other words, a same sex...
Congressional Hearing on Ashcroft v. Iqbal
Posted on October 26, 2009Tomorrow's activities on Capitol Hill include a hearing entitled "Access to Justice Denied - Ashcroft v. Iqbal" before the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties (Tuesday 10/27 @ 2:30 P.M. in 2237 Rayburn House...
California provides free representation in certain civil cases
Posted on October 26, 2009California has a new program to fund public interest lawyers to provide free representation to all indigent civil litigants involved in certain types of cases, such as home foreclosures, domestic violence cases, cases alleging predatory lending practices and others...
Generalist judges and antitrust law
Posted on October 25, 2009Michael R. Baye (Indiana University Bloomington - Department of Business Economics & Public Policy) and Joshua D. Wright (George Mason University School of Law) have posted Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial...
Supreme Court of Canada limits availability of class actions
Posted on October 24, 2009The Supreme Court of Canada recently held that a class action was inappropriate in a case challenging a municipal tax assessment. Commentators are speculating about how much the decision will impact the future availability of class actions in Canada because...
Australian Arbitration Rules
Posted on October 22, 2009Simon Greenberg, Luke R. Nottage, and Romesh Weeramantry have posted The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited to SSRN. Abstract: A decade ago, leading arbitration institutions and practitioners responded to growing concerns about burgeoning...
Are contract lawyers being asked to pursue quantity over quality in reviewing documents?
Posted on October 22, 2009The ABA Journal reports here about increasing pressure on contract attorneys to review discovery documents at a faster pace. A contract lawyer reports having received an e-mail instructing the lawyer to "pick up the pace," and specifying that for the...
Ninth Circuit decision deepens circuit split on the process for establishing co-defendants' unanimous joinder in removal
Posted on October 22, 2009Earlier this month the Ninth Circuit decided Proctor v. Vishay Intertechnology Inc. (No. 07-16527), 2009 WL 3260535, 2009 U.S. App. LEXIS 22254. The opinion addresses the substantive requirements for SLUSA removability as well as the timeliness of removal when the...
Swine Flu Vaccine Litigation
Posted on October 21, 2009Last week saw the beginning of the delivery of vaccines for the H1N1 or "swine flu" virus. Perhaps the only thing more predictable than the worry that we will not have enough of the vaccine are the lawsuits that have...
Prof. Connors on Allocating the Costs of Discovery
Posted on October 21, 2009Professor Patrick Connors (Albany) has posted Which Party Pays the Costs of Document Disclosure?, 29 Pace L. Rev. 441 (2009) on SSRN. Here's the abstract: The disclosure of electronically stored information has become an integral part of litigation in the...
Segall on the Judicial Activism Debate
Posted on October 21, 2009Eric Segall (Georgia State) has posted "Reconceptualizing the Judicial Activism Debate as Judicial Responsibility: A Tale of Two Justice Kennedys," which will be published in the Arizona State Law Journal. Abstract: The academic and political debate over judicial activism has...
Supreme Court grants review in Guantanamo habeas case
Posted on October 20, 2009Kiyemba v. Obama, No. 08-1234. Issue: May a federal district court exercising its habeas corpus jurisdiction order the release into the United States of 17 Chinese citizens detained as enemy combatants at Guantanamo Bay Naval Base, Cuba, or is it...
Are Women Better Judges Than Men?
Posted on October 19, 2009Professors Stephen J. Choi (NYU), G. Mitu Gulati (Duke), Mirya R. Holman (Duke), and Eric A. Posner (Chicago) have posted "Judging Women" on SSRN. Abstract: Judge Sonia Sotomayor?s assertion that female judges might be ?better? than male judges has generated...
Hot off the Presses: Recent Scholarship of Interest
Posted on October 19, 2009With a hat tip to last week's Current Index of Legal Periodicals, here are some recent publications that may be of interest: Hon. Judith S. Kaye, Shaping State Courts for the New Century: What Chief Judges Can Do, 61 Me....
Startz and Yoon on an economic model of litigant resources and legal precedent
Posted on October 18, 2009Richard Startz (University of Washington - Economics) and Albert Yoon (University of Toronto) have posted Litigant Resources and the Evolution of Legal Precedent on SSRN. Abstract: This paper develops an informational model of litigation in which court decisions are a...
Obama is criticized and praised for his federal judicial appointments
Posted on October 17, 2009A Washington Post article outlines criticism of President Obama based on the slow rate of judicial appointments. In his first nine months in office, Obama has appointed 23 judges; Bush had appointed 95 during that same period in his presidency....
Prof. Wasserman on "When Ricci Met Iqbal"
Posted on October 16, 2009Professor Howard Wasserman (Florida International) has a very interesting post over at PrawfsBlawg on a potential relationship between the Supreme Court's decisions in Ricci and Iqbal last Term. The Ricci case is back in the news because an African-American New...
Waller, Siegel and Lahav on Teaching Civil Procedure
Posted on October 15, 2009Over at the Mass Torts Litigation Blog, Alexandra Lahav has joined the debate started at Concurring Opinions by Spencer Waller (here) and Jonathan Siegel (here) about the role of theory and practice in teaching civil procedure. Each of these posts...
Academic Freedom & the Courts
Posted on October 15, 2009Professor Amy Gajda (University of Illinois law & journalism) has published a new book "The Trials of Academe," about the erosion of so-called "academic abstention," the unformalized doctrine under which courts hesitated to second-guess academic institutions' policy decisions (such as...
Three Justices issue statement in denying class-action cert. petition
Posted on October 15, 2009Among the many cases for which the Supreme Court denied certiorari this week was DTD Enterprises Inc. v. Wells (No.08-1407). Our readers may be interested in a statement that Justice Kennedy issued in the case (joined by Chief Justice Roberts...
Filing of patent subjects Canadian firm to 4(k)(2) personal jurisdiction
Posted on October 14, 2009The Federal Circuit recently decided Touchcom, Inc. v. Bereshkin & Parr, 574 F.3d 1403 (Fed. Cir. 2009). In this case, a Canadian law firm's sole contact with the United States was the filing of a patent application. The law firm...
Discovery & Academic Freedom
Posted on October 14, 2009The Chronicle of Higher Education reports here on a tobacco suit in which the defendant R.J. Reynoldss's lawyers are seeking discovery of a Stanford professor's unfinished, unpublished manuscript of a book on the tobacco industry. Professor Robert Proctor, the author,...
Birther sanctioned under Rule 11
Posted on October 13, 2009Birther Orly Taitz was ordered by Judge Clay Land of the United States District Court for the Middle District of Georgia to pay $20,000 in sanctions under Rule 11 for filing a frivolous case. In a detailed opinion, Judge Land...
Cert. Grant in Case Involving Complete Preemption and Federal Officer Removal
Posted on October 13, 2009Today the Supreme Court granted certiorari in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). BNA reports that the questions presented are: (1) Does the Federal Employee Health Benefits...
Civil Procedure Dominates SCOTUS Argument in Major Establishment Clause Case
Posted on October 13, 2009Salazar v. Buono (No. 08-472) involves an Establishment Clause challenge to a cross erected as a war memorial in the Mojave National Preserve in California. Last week's oral argument garnered considerable attention, especially for some of the exchanges with Justice...
Comparative and International Scholarship Roundup
Posted on October 12, 2009Here are a few recent articles posted to SSRN that address civil procedure and/or federal courts issues from a comparative and international perspective. Amalia Kessler (Stanford Law School), Marginalization and Myth: The Corporatist Roots of France's Forgotten Elective Judiciary Helena...
Article of Interest: Redish, Julian & Zyontz on Cy Pres Relief in Class Actions
Posted on October 12, 2009Professor Martin Redish (Northwestern), Peter Julian (Northwestern) and Samantha Zyontz (Searle Civil Justice Institute) have a forthcoming article in the Florida Law Review that may be of interest to our readers. The article is Cy Pres Relief and the Pathologies...
Alfieri on Discovering Identity in Civil Procedure
Posted on October 12, 2009Professor Anthony V. Alfieri (Miami) has posted "Discovering Identity in Civil Procedure," which will be published in the Southern California Law Review. Abstract: This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and...
Sharpe on Service of Process and Venue
Posted on October 11, 2009Jamelle Sharpe (University of Illinois College of Law) has posted Beyond Borders: Disassembling the State-Based Model of Federal Forum Fairness on SSRN. Abstract: Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long...
Menkel-Meadow on Systemic Ethics Issues in Dispute System Design
Posted on October 10, 2009Professor Carrie Menkel-Meadow (Georgetown & UC Irvine) has posted "Are There Systemic Ethics Issues in Dispute System Design? And What We Should [Not] Do About it: Lessons From International and Domestic Fronts," which will be published in the Harvard Negotiation...
Decision of interest: Prudential limitation on standing bars U.S. lawsuit by non-resident aliens harmed abroad
Posted on October 09, 2009In a decision that is already generating controversy, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia has granted the defendants' motion to dismiss in Doe v. Exxon Mobil Corp. (No. 07-CV-1022). The complaint alleges...
Know of any upcoming conferences relating to civil procedure?
Posted on October 08, 2009Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is ?Upcoming Conferences.? If you have planned...
Disabled Class Members Lack Standing to Sue Disney for Segway Use
Posted on October 08, 2009In this decision from the Middle District of Florida, Judge Presnell dismissed a 23(b)(2) class action brought by disabled individuals who have been battling Disney for the right to use Segways in the Disney parks. The judge had initially approved...
Wasserman on United States v. Klein
Posted on October 01, 2009Howard Wasserman (Florida International) has posted "The Irrepressible Myth of Klein." The abstract states: This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking...
Cert grants: Civ pro and fed courts topics of interest
Posted on October 01, 2009Yesterday the Supreme Court granted cert in ten cases, three of which should be of interest to civil procedure and federal courts teachers. See SCOTUS Blog for links to the opinions below and petitions supporting and opposing certiorari. Attorneys' Fees...
Need a Federal Rule of Civil Procedure . . .
Posted on September 30, 2009. . . There's an app for that! ~clf
9/11 Litigation: NY state law extends time for filing a notice of claim
Posted on September 30, 2009Governor Patterson recently signed a bill that extends the time for filing a notice of claim against a municipality by one year for claims by 9/11 rescue and recovery workers. As the New York Law Journal reports, this could expand...
Upcoming Supreme Court Argument: Reed Elsevier v. Muchnick (Wednesday 10/7)
Posted on September 29, 2009First Wednesday brings another argument that may be of interest to our readers: Reed Elsevier v. Muchnick (No. 08-103). The question presented is: Does 17 U.S.C. s. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement...
Yung on Judicial Activism
Posted on September 28, 2009Corey Rayburn Yung (The John Marshall Law School) has posted "Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals" as part of the Working Paper Series. The abstract states: Existing empirical scholarship...
Upcoming Supreme Court Argument: Mohawk Industries v. Carpenter (Monday 10/5)
Posted on September 28, 2009Civil procedure will make a "First Monday" appearance in Mohawk Industries, Inc. v. Carpenter (No. 08-678). The question presented is: Whether a party has an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial...
Buxbaum on Personal Jurisdiction in Cross-Boarder Securities Litigation
Posted on September 28, 2009Hannah L. Buxbaum of Indiana University School of Law has posted the article Personal Jurisdiction Over Foreign Directors in Cross-Border Securities Litigation on SSRN and forthcoming in the Journal of Corporation Law. Abstract: Securities litigation against non-U...
Update on Google Book Class Action, Proposed Settlement, and Postponed Fairness Hearing
Posted on September 28, 2009Many have been following the federal class action lawsuit against Google: The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.). The suit was filed in 2005 by authors and publishers who alleged that Google's digital copies of...
Conference: Judicial Review in US/Canadian comparative perspective at SEALS
Posted on September 27, 2009Procedure and fed courts folks might be interested in the following announcement for a panel at SEALS: A U.S./Canada Comparative Law Workshop will be held at the SEALS 2010 Annual Meeting at the Breakers Resort in Palm Beach, Florida. The...
Jenks on the Political Question Doctrine Applied to "Battlefield" Government Contractors
Posted on September 26, 2009Chris Jenks (JAG) has posted "Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine" (forthcoming Berkley Journal of International Law) on SSRN. The abstract states: Recent assertions of the political question doctrine by...
Judicial Conference Approves Proposed FRCP Amendments
Posted on September 25, 2009Last week, the Judicial Conference of the United States approved proposed amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52. Also approved were amendments to the Appellate Rules (Rules 1, 4, and 29, and...
Justice Ginsburg Hospitalized
Posted on September 25, 2009SCOTUS Blog reports on Justice Ginsburg: Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly ?developed light headedness and fatigue? while working in her chambers at the Court. The New York Times and the Washington Post both characterized...
The Honorable Jerry Buchmeyer (1933-2009)
Posted on September 25, 2009U.S. District Judge Jerry Buchmeyer passed away this week. I was Judge Buchmeyer's law clerk a decade (or so) ago when he was the Chief Judge of the Northern District of Texas. While I won't detail here his impact as...
Chase & Mustes on "'Acting' Judges and the Problem of Judicial Independence"
Posted on September 24, 2009Oscar G. Chase (NYU) and George W. Mustes have posted "'Acting Judges and the Problem of Judicial Independence." The abstract states: Contemporary threats to the independence of American judges have drawn critical comment from a variety of observers. In this...
Hyman, Black, and Silver on the Impact of "Duty to Settle" on Settlement
Posted on September 24, 2009David Hyman, Bernard Black, and Charles Silver have posted The Impact of the Duty to Settle" on Settlement: Evidence from Texas. Abstract: All insurance has coverage limits, and insurers usually control whether a case is settled or tried. If the...
Prof. Bone on Iqbal
Posted on September 24, 2009For some more recent commentary on Iqbal, check out this essay by Professor Robert Bone (Boston University), Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal (85 Notre Dame L. Rev., forthcoming) on SSRN. Here?s the abstract: This...
Court Budgets Are Tight All Over
Posted on September 23, 2009Court clerks in Spain's Andalusa region now must take the bus instead of a taxi, their traditional mode of transportation, when they have to serve a summons. However, this money-saving strategy has significantly reduced efficiency. Using taxis, a clerk can...
New Articles on Sports and Procedure
Posted on September 23, 2009Two recent articles posted on SSRN address the intersection of sports and procedure. Off-Court Misbehavior: Sports Leagues and Private Punishment by Janine Kim and Matthew Parlow at Marquette University School of Law focuses on criminal law and theory, but the...
The Harshest Sanction of All?
Posted on September 22, 2009Last week, in the case of Nault v. The Evangelical Lutheran Good Samaritan Foundation, No. 6:09-CV-1229 (M.D. Fla.), U.S. District Judge Gregory A. Presnell ordered that the plaintiff's attorney "shall re-read the Local Rules and the Federal Rules of Civil...
Wells on Teaching Federal Courts Law
Posted on September 21, 2009Michael Lewis Wells (University of Georgia) has posted A Litigation Oriented approach to Teaching Federal Courts Law (forthcoming St. Louis U. Law J.). Here is the abstract: The traditional focus of the course on Federal Courts has been the study...
Tasty solution to bitter discovery dispute
Posted on September 21, 2009A federal judge has ordered a litigant who cursed at an adversary during a discovery dispute to take a CLE class in professionalism and to have dinner with his adversary. One wonders if the judge picked up the tab. The...
Hot off the Presses: Recent Publications of Interest
Posted on September 21, 2009Following up on Cynthia's post earlier today, the St. Louis University Law Journal has published a symposium entitled Teaching Federal Courts. Here are some of the contributions (with a hat tip to the Current Index of Legal Periodicals): Richard H....
Federal Judge Resigns Due to Low Salary
Posted on September 19, 2009The problem of low salary for federal judges has been widely discussed. This week, the severity of the problem was highlighted by the announcement by United States District Judge Stephen Larson of the U.S. District Court for the Central District...
The Alien Tort Claims Act in the National Law Journal & 11th Circuit (plus more Iqbal)
Posted on September 18, 2009For readers interested in claims brought under 28 U.S.C. 1350 [a.k.a. the Alien Tort Claims Act (ATCA) or Alien Tort Statute (ATS)], this week's National Law Journal contains a column Alien Tort Claims Act cases keep coming. Also, a recent...
Shortage of Jurors in Canada
Posted on September 17, 2009Courts in New Brunswick, Canada are finding it difficult to seat juries. Recently a justice of the Court of Queen?s Bench asked that 2000 jury summonses be sent for a trial that would ordinarily only require 350. Officials blame the...
Iqbal and the birthers
Posted on September 17, 2009A federal district judge in Georgia has dismissed a suit brought by one of the now imfamous "birthers" on grounds of abstention and implausibility. The plaintiff, a member of the armed services, sought a temporary restraining order to prevent deployment...
Mulligan on Boumediene's second holding
Posted on September 17, 2009Lumen Mulligan (Michigan State) has posted on SSRN his essay, Boumediene v. Bush: Would Justice Story Concur? (N.Y.U. L. Rev., forthcoming). Here's the abstract: In this essay, I take up the Court's less heralded second holding in Boumediene v. Bush....
State Damage Cap Reduces $15 Million Verdict to $619,000
Posted on September 16, 2009The National Law Journal reports: Michigan's cap on medical malpractice awards numbed the pain of a $15 million verdict for one oral surgeon. The whopping jury verdict fizzled down to $619,000 due to Michigan's cap, which limits pain and suffering...
D.C. Circuit to close oral argument on Guantanamo detainee to the public
Posted on September 16, 2009As the Blog of the Legal Times reports, judges Ginsburg, Henderson, and Edwards ruled that oral argument in the case of Belkacem Bensayah, an alleged enemy combatant arrested in Bosnia and held at Guantanamo Bay, will be closed to the...
Famous for being famous, and for generating precedent on pendent appellate jurisdiction: Paris Hilton in the Ninth Circuit
Posted on September 15, 2009Her bid for the presidency may have failed, but Paris Hilton has found a way short of the appointments power to have an impact on the federal judiciary. Ms. Hilton sued Hallmark Cards over a Hallmark birthday card that featured...
Hot off the Presses: Recently Published Articles of Interest
Posted on September 14, 2009With a hat tip to last week's Current Index of Legal Periodicals, here are some recent articles that may be of interest: David Brennan, Federal Preemption of All State Law Tort Claims in Riegel v. Medtronic: A Need to Undo...
Taussig on Class Actions in Israel
Posted on September 14, 2009Eran Taussig has posted the paper Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Standard in Class Action Proceedings. Abstract: This paper suggests that using the concept of "good faith", as is used in Israeli class action proceedings,...
Constitutional Challenge to Military Commission Trials
Posted on September 14, 2009In a brief order, the D.C. Circuit Court asked the Obama administration to respond by noon tomorrow (Tuesday) in a case raising a constitutional challenge to the 2006 law providing authority for military commission trials. SCOTUS Blog summarizes Ramzi Bin...
Attorneys' fees in class actions
Posted on September 13, 2009The Initial Public Offering Litigation pending before Judge Scheindlin in the S.D.N.Y. has produced plenty of controversy over the past several years. The latest installment is a fight over the calculation of attorneys' fees. The grounds are familiar: are the...
Recent Commentary on Ashcroft v. Iqbal
Posted on September 11, 2009Professors Kevin Clermont (Cornell) & Stephen Yeazell (UCLA) have posted on SSRN their article Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. ___ (forthcoming Mar. 2010). Here's the abstract: The U.S. Supreme Court has revolutionized the law on pleading, by...
If you were worried about laptops in the classroom . . .
Posted on September 11, 2009Judges are also worried about jurors with technology. As law.com reports via The Recorder, a new rule in a California state court "would remind potential jurors not to blog, Tweet or conduct Internet research about cases." RJE
Stand in the Place Where You Live: Standing decision from Brooklyn
Posted on September 10, 2009Back in March, Judge Korman issued an opinion ordering the FDA to allow 17-year-olds access to Plan B (the "morning after pill"). 603 F.Supp.2d 519 (E.D.N.Y. 2009). Following that ruling, three pro-life Christian groups sought to intervene in the lawsuit...
First Circuit Decision on FRCP 51 and Jury Instructions
Posted on September 10, 2009In last week's decision in DeCaro v. Hasbro, Inc., No. 09-1054, 2009 WL 2767296, 2009 U.S. App. LEXIS 19707, the U.S. Court of Appeals for the First Circuit weighed in on FRCP 51(b)(1)'s requirement that "[t]he court must inform the...
Using Empirical Methods in Procedure Scholarship
Posted on September 10, 2009Two new articles posted to SSRN employ quantitative empirical methods in researching issues involving the federal courts: Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation Margaret S. Williams (Federal Judicial Center) Tracey E...
Iqbal Symposium at Penn State
Posted on September 10, 2009Nancy Welsh (nxw10@DSL.PSU.EDU) of Penn State, Dickinson School of Law has announced the following conference: On Friday, March 26, 2010, Penn State will hold a symposium addressing the Supreme Court's recent decision in Ashcroft v. Iqbal. There will be three...
Number 9, Number 9, Number 9: Some Significant 9th Circuit Decisions on Federal Preemption
Posted on September 09, 2009On this numerically significant day (09/09/09), readers may be interested in the 9th Circuit?s recent decisions in Saher v. Norton Simon Museum of Art at Pasadena, No. 07-56691, 2009 WL 2526676, 2009 U.S. App. LEXIS 18604, and Movsesian v. Victoria...
Welcome to the Civil Procedure & Federal Courts Blog
Posted on September 09, 2009Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our...
About Civil Procedure Prof Blog
Posted on August 16, 2009If you are interested in serving as an editor of Civil Procedure Prof Blog for the Law Professor Blogs Network, please contact Paul Caron and Joe Hodnicki by email.
I am in A.P. Contracts ....
Posted on July 13, 2009Property Prof. Ben Barros thinks "moving to an advanced placement system for law school would be a win for everyone." Read his post here.
Rule 60(b) and bad lawyering
Posted on July 12, 2009When must a district court grant a Rule 60(b) motion to vacate a default judgment due to bad lawyering? Essentially never, says the Seventh Circuit. Because of the principal-agent nature of the lawyer-client relationship, which attributes the lawyer's conduct to...
The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure
Posted on July 06, 2009Prof. David Marcus recently posted an interesting piece on SSRN, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure. Click the title to download it. The abstract follows: The trans-substantivity principle ? the same procedural rules should apply...
Two Interesting Links:
Posted on June 17, 2009Two thought-provoking links for the day: Over at his blog, Adamsdrafting, Ken Adams has an interesting post about the admissibility of expert testimony in the context of ambiguous contract terms. Whether a contract is ambiguous is a legal question. Does...
Junior Federal Courts Conference at Michigan State
Posted on June 15, 2009Click the link to view an updated flyer for the Federal Courts Conference at Michigan State this fall. Prof. Lou Mulligan is the contact person, and you can find his information in the flyer. Download Federal Courts Conference Flyer1
Cert. Granted
Posted on June 09, 2009Yesterday, the Supreme Court granted certiorari on the following issue: For purposes of determining principal place of business for diversity jurisdiction citizenship under 28 U.S.C. § 1332, can court disregard location of nationwide corporation's headquarters--i...
Case of Interest -- Reed Elsevier v. Muchnick
Posted on June 08, 2009Readers may be interested in a case currently pending before the Supreme Court called Reed Elsevier v. Muchnick. It?s a copyright case, but it raises neat civil procedure issues. The case is a class action on behalf of authors who...
Against Twombly & Iqbal -- A Reply to Drug & Device Law Post
Posted on June 05, 2009Rory and Jeremy have invited responses to the formidable and polite defense of Twombly and Iqbal posted by the folks at the Drug & Device Law blog. I?m not shy?I?ll give it a shot. Let me first note a couple...
Reviewing Remand Orders
Posted on June 02, 2009Justice Scalia once asked a brilliant question: "How can that be? How can a statute explicitly eliminating appellate jurisdiction to review a remand order not 'control' whether an appellate court has jurisdiction to review a remand order?" His question reflects...
The other side of the Twombly/Iqbal coin:
Posted on May 29, 2009A few days ago, the folks at Drug and Device Law noted the Iqbal decision and the unanimous condemnation of the decision among academic bloggers. Beck and Herrmann promised to present the other side of the argument, and today they...
Iqbal decided
Posted on May 18, 2009Today the Supreme Court released its decision in Ashcroft v. Iqbal. Section IV of the opinion has much to say about Twombly and notice plausibility pleading. --RR
Beyond Twombly (by Prof. Scott Dodson)
Posted on May 18, 2009Today, the Supreme Court decided Ashcroft v. Iqbal, a case that continues the recent evolution of pleading standards under Rule 8 mostly begun by a case from two years ago, Bell Atlantic v. Twombly. As I have written previously here,...
2 USSCT Decisions
Posted on May 04, 2009Today, the Supreme Court decided Carlsbad Technology, Inc. v. HIF Bio, Inc., a case whose Certworthiness was apparent even back in November of 2007. Our readers will also be interested in today's Arthur Andersen, LLP v. Carlisle decision, which involves...
Staying Execution of a Mandate
Posted on April 17, 2009Our own 10th Court of Appeals in Waco decided an interesting procedural case yesterday. Chief Justice Gray's introduction cleanly states the issue: In a prior proceeding, we were asked to decide certain issues. We did. We issued an opinion. In...
Junior Faculty Federal Courts Workshop
Posted on April 15, 2009THE SECOND ANNUAL JUNIOR FACULTY FEDERAL COURTS WORKSHOP October 22-23, 2009 The Michigan State University College of Law is pleased to announce that the Second Annual Junior Faculty Federal Courts Workshop will take place on its campus October 22?23, 2009...
FRCP Amendments
Posted on April 06, 2009Prof. Ben Spencer reports here on recent Federal Rules amendments approved by the Supreme Court. You can also click here for more information on the U.S. Courts page. --RR
Pleading and the Dilemmas of "General Rules"
Posted on March 25, 2009Click the article title to download Pleading and the Dilemmas of General Rules, by Prof. Stephen B. Burbank. The article will appear in the Wisconsin Law Review. The abstract follows: This article comments on Professor Geoffrey Miller's article about pleading...
Alternative MDL-management Method
Posted on March 19, 2009Click the article's title to download The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, authored by Profs. Charles Silver and Geoffrey Miller. The abstract follows: This article uses three recent multi-district litigations (MDLs) that produced massive...
Erie Meets the First Amendment
Posted on March 17, 2009Howard Wasserman just posted an interesting question over at PrawfsBlawg: So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous...
Supreme Court decides Vaden
Posted on March 09, 2009SCOTUS Blog reports that the Supreme Court "ruled that a firm seeking to compel arbitration of a dispute may take the case to a federal District Court only if the underlying controversy could have been litigated in federal court. A...
Call for Proposals
Posted on February 26, 2009The AALS Section on Academic Support will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods. Many of these methods have their roots in traditional academic support tenets of varying lesson plans to...
Federal Courts, Not Federal Tribunals
Posted on February 25, 2009Prof. Lou Mulligan recently posted Federal Courts, Not Federal Tribunals. Also check out his previous article, which we featured here. Lou is a very bright scholar, and his writing is always accessible. --RR
"Against Settlement" Symposium
Posted on February 24, 2009Prof. Howard Erichson and the Fordham Law Review have put together quite a symposium to discuss Owen Fiss's provocative arguments about ADR and settlement of 25 years ago. The speakers include Owen Fiss, Sam Issacharoff, Pam Karlan, Susan Sturm, Jack...
Entry-Level Hiring Report
Posted on February 24, 2009Larry Solum is compiling this year's Entry Level Hiring Report. Click here to submit your school's information via Survey Monkey. --RR
Horizontal Federalism
Posted on February 23, 2009Minnesota Prof. Allan Erbsen recently posted an updated version of Horizontal Federalism on SSRN. It's definitely worth a read. The abstract follows: This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical...
Prof. Campbell posts article on service of process
Posted on February 22, 2009Faulkner Prof. Charles Campbell recently posted No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention. The abstract follows: Mexico acceded to the Hague Service Convention...
E-Pitfalls: Ethics and E-Discovery
Posted on February 20, 2009Prof. Debra Lyn Bassett recently posted E-Pitfalls: Ethics and E-Discovery. Click the title to download the article. The abstract follows: Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise...
Supreme Court Reform
Posted on February 12, 2009Today, at law.com, Marcia Coyle reports: Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court. The article describes four proposals, ranging from regular biennial appointment of new justices to identifying justices who are no longer able to perform...
11th Circuit Certifies Florida Long-Arm Question
Posted on February 11, 2009In Internet Solutions Corporation v. Marshall, Defendant lived in Washington, where she owned and operated a consumer-watchdogish website. She posted something about plaintiff, ISC. ISC sued Defendant in federal court -- in Florida, where ISC had its principal place of...
Distinguishing Certification from Abstention
Posted on February 09, 2009Prof. Deborah J. Challener recently posted Distinguishing Certification from Abstention in Diversity Cases: Postponement versus Abdication of the Duty to Exercise Jurisdiction. Click the title to download the article, which will appear in Volume 38 of the Rutgers Law Journal...
Restyling hits civil and criminal forms
Posted on February 06, 2009The effort to re-write the federal rules in "plain English" has spread. A working group at the Administrative Office of the U.S. Courts has put together 56 new, restyled forms, both civil and criminal. You can find them here (though...
Does Anyone Care About Class Actions?
Posted on February 05, 2009The Houston Chronicle reported Monday that very few of the supposed-beneficiaries of a massive cosmetics class action knew or cared about the lawsuit. The suit netted about $25 million for the lawyers involved, and, for the class members, what the...
Ever Thought Civil Cases Take Too Long? So Does the IAALS
Posted on February 04, 2009The Institute for the Advancement of the American Legal System has put together an extremely comprehensive study on the time consumed by civil cases in American federal district courts. It purports to be concerned primarily with the discrepancy between the...
Congress and Standing
Posted on February 03, 2009Professor Michael E. Solimine from the University of Cincinnati has posted a paper on SSRN that he contributed to a recent symposium on "Access to the Courts in the Roberts Era." The article, Congress, Separation of Powers, and Standing, is...
New choice of law article on the SSRN
Posted on January 27, 2009Dean Symeonides has published another article on choice of law, and posted it on the SSRN. In it, he analyzes how states have been dealing with the choice of law question over the past 40 years in "cross-border" torts (torts...
5th Circuit holds district court's remand order under 1367(c) reviewable
Posted on January 27, 2009In Brookshire Brothers Holding, Inc. v. Dayco Products, Inc., No. 07-31154, 2009 WL 22876 (5th Cir. January 6, 2009), the Fifth Circuit held that a district court's order of remand based on 28 USC § 1367(c) is reviewable. Section 1447(d)...
Using the Internet to Improve Class Actions
Posted on January 26, 2009With two accomplices, Drug and Device Blogger and Curmudgeon Mark Herrmann recently published "Making Class Actions Work: The Untapped Potential of the Internet" in the Pittsburgh Law Review. Download the article here. A brief abstract follows: In the article, Herrmann,...
Funding for Civil Litigation Research
Posted on January 26, 2009The ABA Section of Litigation invites applications to The Litigation Research Fund, which makes individual awards of between $5,000 and $20,000 to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States...
Federal Caseload Statistics
Posted on January 23, 2009The Federal Judiciary Website has posted the federal caseload statistics. --Counseller/jtf
MBE may add civil procedure questions
Posted on January 23, 2009Law.com reports that the National Conference of Bar Examiners is considering adding civil procedure questions to the Multistate Bar Exam. You can read about it here. -Counseller/ps
2008 AALS Civil Procedure Section papers available online
Posted on January 22, 2009The papers presented at the 2008 AALS Civil Procedure Section?s annual meeting were recently published in the Summer 2008 edition of the Oklahoma Law Review and are now available online. The topic of the program was ?The Revolution of 1938...
4th Circuit holds additional counter-defendant may not remove
Posted on January 21, 2009Recently, a split panel of the 4th Circuit Court of Appeals found that a counter-defendant added to the suit by the original defendant could not remove the case to federal court under 28 U.S.C § 1441(a) or § 1453(b). In...
Federal Rule of Evidence 502
Posted on January 21, 2009Over at law.com, John Summers and Michael Gadarian have posted a new article on Federal Rule of Evidence 502. The article contains a discussion of some problematic aspects of the language in 502. -Counseller/ps
Comparative Civil Procedure
Posted on January 20, 2009Jeffrey Parker from George Mason University School of Law has posted a paper on SSRN that he presented at the 11th Travemunder Symposium on the Economic Analysis of Procedural Law. The paper, Comparative Civil Procedure and Transnational 'Harmonization': A Law-and-Economics...
Personal Jurisdiction and Patent Litigation
Posted on January 15, 2009A divided panel of the Federal Circuit recently affirmed a district court's finding that an international corporation did not submit itself to specific personal jurisdiction in Alabama by sending three letters asserting patent infringement. Avocent Huntsville Corp...
7th Circuit Makes It Harder for Plaintiffs to Keep Securities Class Actions in State Court
Posted on January 14, 2009The folks at Law.com have reported a new decision of the Seventh Circuit that holds that the grant of federal jurisdiction in CAFA trumps the anti-removal provisions of the Securities Act of 1933. Read their report on the case, or...
Federal Rulemaking Website Adds "Quick Links"
Posted on January 13, 2009For those of you that utilize the resources at the Federal Rulemaking Website of USCourt.gov, they're in the process of adding "Quick Links" to frequently used Rules Committee records and other information: Our "Quick Links" are divided into two categories:...
Is dispositive procedure "fatally flawed"?
Posted on January 12, 2009Professor Suja Thomas from the University of Illinois has posted a new article to SSRN arguing the answer to that question is emphatically yes. The new article, "The Fallacy of Dispositive Procedure" is forthcoming in Volume 50 of the Boston...
More commentary on the Voluntary-Involuntary Rule
Posted on January 06, 2009The next issue of the Baylor Law Review will contain a comment written by Jeff Fisher. Jeff's comment clearly outlines and predicts the questions created and answered by the Morgan decision (see today's earlier post), though it went to press...
Fradulent Joinder and the Voluntary-Involuntary Rule
Posted on January 06, 2009In Morgan v. Chase Home Finance, the 5th Circuit issued an unpublished decision that will likely surprise many readers. It requires practitioners (and my students) to be agile with the concept of fraudulent joinder and its interplay with the voluntary-involuntary...
Rule 23 class action status denied to hurricane victims
Posted on January 05, 2009As WSJ.com recently reported, District Judge Kurt Engelhardt denied class action status on December 29, 2008 to Hurricane Katrina & Rita victims in an action concerning those allegedly toxic trailers. In a 50 page order, the judge concluded that the....
Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey
Posted on January 04, 2009Dean Symeonides of Willamette University College of Law has posted his twenty-second annual survey of choice of law cases on SSRN. You can download it here, but here's a preview from the abstract: The following are among the cases discussed...
Federal Rulemaking Podcasts Update
Posted on January 04, 2009Last month we posted links to the podcast related to the proposed changes to Federal Rules of Civil Procedure 26 and 56. All federal rulemaking proceedings will now be available at the court's website. Since our last post, there is...
A Summary Judgment is Not a Dismissal!
Posted on January 02, 2009Click here to download Prof. Bradley Scott Shannon's recent article A Summary Judgment is Not a Dismissal! (exclamation point in original.) The article will appear in Vol. 56 of the Drake Law Review. The abstract follows: Many lawyers think that...
Chief Justice's 2008 Year-End Report
Posted on January 01, 2009The Chief Justice's year-end report is now available at the Federal Judiciary website. --Counseller/jtf
Avoiding CAFA
Posted on January 01, 2009Recently, a split panel of the Sixth Circuit Court of Appeals reversed a district court's remand order in a nuisance suit brought by three-hundred landowners who own property downriver from a Blue Ridge paper mill in North Carolina. In Freeman...
Sixth Circuit Joins Others in Holding 28 U.S.C. § 1332(a)(2) Limited to Suits with Aliens on One Side, State Citizens on the Other
Posted on December 31, 2008The Sixth Circuit released an opinion in which it joined numerous other circuits in holding that 28 U.S.C. § 1332(a)(2) does not grant jurisdiction over a case in which there are foreign and domestic plaintiffs against a foreign defendant. We...
Fifth Circuit decides that 28 U.S.C. 1441(c) does not permit remand of removable federal questions
Posted on December 31, 2008Last month the Fifth Circuit decided Poche v. Texas Air Corps, Inc., No. 07-20618, 2008 WL 4926740 (5th Cir. Nov. 19, 2008). The question presented was "does 28 U.S.C. § 1441(c) permit a district court to remand federal claims conferring...
Offers of Judgment Under FRCP 68: A useful tool, but is this as good as it gets?
Posted on December 31, 2008Professors Thomas Eaton and Harold S. Lewis, Jr. have posted a second report on the utility of offers of judgment under Federal Rule of Civil Procedure 68. In this second report, the Professors discuss some ways in which the rule...
Another important venue decision
Posted on December 30, 2008An article today on Law.com asks: Will Famed Rocket Docket Fizzle Out in Wake of Federal Circuit's Ruling? Texas court slapped down for holding onto case; ruling bolsters recent 5th Circuit order. Click the case name to download the Federal...
Whoops! My Computer Accidentally Deleted the Evidence!
Posted on December 29, 2008Andrew Hebl, a law clerk for the Wisconsin Supreme Court, has posted a new article on SSRN discussing Federal Rule of Civil Procedure 37(e). The rule states that, generally, "a court may not impose sanctions under these rules on a...
Rules Enabling Act
Posted on December 19, 2008Anthony Vitarelli recently posted A Blueprint for Applying the Rules Enabling Act's Supersession Clause on SSRN. Click the article title to download. This abstract follows: When Congress passed the Rules Enabling Act (REA), it deferred to the Supreme Court's institutional...
Venue Selection, State or Federal?
Posted on December 17, 2008When a contract contains a forum-selection clause that requires "exclusive venue" in a particular county of a State, might venue be proper in a Federal District Court that happens to be located in that county? The Fifth Circuit answered "yes"...
Service via Certified Poke?
Posted on December 16, 2008The AP reports: Australia OKs Facebook for serving lien notice.--RR
Foreign Defendants and Service of Process under State Law
Posted on December 15, 2008The New York Court of Appeals recently handed down an interesting opinion regarding service of process upon foreign defendants in their home country. The suit involved a forfeiture proceeding initiated by the New York attorney general seeking to obtain the...
Remanding "matters" in which State Law Predominates under 1441(c)
Posted on December 15, 2008The Fifth Circuit recently reversed a district court's finding that even though a suit involved a federal question, the entire case should be remanded to state court because most of the plaintiff's claims arose under state law. The plaintiff in...
Haywood v. Drown
Posted on December 10, 2008The Supreme Court heard arguments on last Thursday in Haywood v Drown. The bulk of the argument focused on the jurisdictional issue. As SCOTUSblog pointed out, at one point Justice Alito asked whether there was some "Platonic ideal of jurisdiction...
Forum Non Conveniens and the "American" Presumption
Posted on December 09, 2008Judge Posner, writing for a panel of the Seventh Circuit Court of Appeals recently affirmed a district court's dismissal on forum non conveniens of a diversity suit brought under 28 U.S.C. § 1332(d)(2)(C). The plaintiff was a wholly owned subsidiary....
Converting a 12(b)(6) Motion to Dismiss into a Motion for Summary Judgment under FRCP 56
Posted on December 08, 2008A panel of the Second Circuit Court of Appeals recently reinstated a suit arising out of the 1984 Bhopal, India factory explosion. The district court dismissed all of plaintiff's claims except for one after converting the defendants' motion to dismiss...
Generalized Grievances & Hein v. Freedom from Religion Foundation, Inc.
Posted on December 05, 2008Regent University Professor Craig Stern recently posted Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue? on SSRN. Click the article title to download it. The abstract follows: The...
FRE 502: Attorney-Client Privilege And Work-Product Doctrine
Posted on December 05, 2008New FRE 502 concerns the attorney-client privilege and the work-product doctrine. It became effective September 19, 2008. Federal Evidence Review provides a reference sheet to navigating this new legislation. Click Here The attorney-client privilege and work-product act is explored more...
Should Federal Court Workload Guide Development of Procedural Doctrines?
Posted on December 03, 2008Nancy Levitt at the University of Missouri School of Law has authored a new article questioning whether we should let administrative concerns, like docket overcrowding, guide the use of doctrines like abstention, preclusion, and summary judgment, which let our federal...
You're not a procedure nerd if ...
Posted on December 03, 2008You're not a procedure nerd if you don't find this transcript to be a compelling page-turner. It's the oral-argument transcript from the Vaden case, which involves the nature of federal-question jurisdiction and the Federal Arbitration Act, and which is up...
Twombly and Communication
Posted on December 02, 2008Prof. William H. Page recently posted Twombly and Communication: The Emerging Definition of Concerted Action Under the New Pleading Standards. Click the article title to download the article; the abstract follows: After the Supreme Court's 2007 decision in Bell Atlantic...
Podcasts of Advisory Committee Proceedings Regarding Proposed Changes to Rules 26 and 56
Posted on December 01, 2008The Advisory Committee is recommending changes to Rule 26 (Duty to Disclose; General Provisions Governing Discovery) and 56 (Summary Judgment). They summarize their proposed changes in this brochure requesting comment. Watch out, though, because the beginning of the summary is...
Personal Jurisdiction and the Internet
Posted on November 25, 2008A panel of the Eleventh Circuit Court of Appeals recently reversed a district court's grant of a motion to dismiss for lack of personal jurisdiction in a case filed in the Middle District of Florida against a Tennessee resident that...
Federal Jurisdiction in light of Sosa v. Alvarez-Machain
Posted on November 24, 2008Professor Gwynne Skinner recently published Federal Jurisdiction Over U.S. Citizens' Claims for Violations of the Law of Nations in Light of Sosa. Click the article title to download it. This abstract follows: This article finds that general federal question jurisdiction...
Federal Judicial Center Publishes More Findings on CAFA's Impact
Posted on November 21, 2008The Federal Judicial Center released the findings from Phase Two of a study on the impact of CAFA on the federal courts: This report presents preliminary findings from Phase Two of the ongoing study of the impact of the Class...
Declaratory Judgments and Claim Preclusion
Posted on November 20, 2008A panel of the First Circuit Court of Appeals recently reversed a district court finding that a deceptive trade practices claim against an insurance company was barred by res judicata because the claim could have been brought in the plaintiff's...
E-Discovery Symposium
Posted on November 19, 2008Click the link to download the details of Northern Kentucky's Symposium on E-Discovery. Download northern_kentucky_law_review_spring_symposium.doc --RR
Supplemental-Jurisdiction Article
Posted on November 14, 2008Prof. Michelle S. Simon recently published Defining the Limits of Supplemental Jurisdiction under 28 U.S.C. s1367: A Hearty Welcome to Permissive Counterclaims. Click the article title to download the article. The abstract follows: In 1990, Congress passed 28 U...
Discovery and Social Networking Sites
Posted on November 14, 2008Over at Law.com, Ronald J. Levine and Susan L. Swatski-Lebson discuss the current trend of court decisions regarding the discoverability and admissibility of information available on social networking sites. Read the story here.--Counseller
A Call for Papers
Posted on November 05, 2008We received this call for papers from the Journal of Court Innovation: Dear Colleagues, The Journal of Court Innovation is soliciting articles concerning the future of commercial litigation and e-discovery. Articles can concern the federal or any state justice system...
Levine
Posted on November 03, 2008The Supreme Court heard oral argument in the Levine case today. Listen to NPR's story on the case here.--Counseller
Daubert and Halloween
Posted on November 01, 2008It's the day after Halloween, but Mark Herrmann's punny little Halloween-Daubert post is still midly amusing. (Mildly, Mark). Here's an excerpt: "Multidistrict litigation courts are often confronted with evaluating limited or evolving scientific and medical theories and evidence...
Judicial Compensation and the Definition of Judicial Power in the Early Republic
Posted on October 22, 2008Northwestern Prof. Jim Pfander recently posted Judicial Compensation and the Definition of Judicial Power in the Early Republic on SSRN. Click the article name to download it. The abstract follows: Article III's provision for the compensation of federal judges has...
How to Read the Constitution
Posted on October 20, 2008The Wall Street Journal has published an excerpt of Justice Clarence Thomas's remarks to the Manhattan Institute last Thursday. The WSJ piece is titled "How to Read the Constitution." Read the piece here.--Counseller
Forum Shopping and the Infrastructure of Federalism
Posted on October 15, 2008James E. Pfander discusses the advantages of plaintiff win rates through the process of forum shopping in Forum Shopping and the Infrastructure of Federalism posted on SSRN.com.--Counseller
Cert. Granted
Posted on October 14, 2008Last November, I reported on the HIF Bio case from the Federal Circuit, concluding that "it wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that...
En Banc 5th Circuit decides In Re: Volkswagen
Posted on October 13, 2008Back in May, we reported on a In Re: Volkswagen of America. The case involved a transfer-of-venue issue that was substantial enough to draw an amicus signed by 14 law professors (neither of us signed). The 5th Circuit released its...
Problems with Proposed Rule 56?
Posted on October 09, 2008Prof. Adam Steinman recently posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process. The abstract follows: The Civil Rules Advisory Committee has recently proposed the most significant...
Fifth Circuit Rules on the Citizenship of a LLC for Purposes of Diversity Jurisdiction:
Posted on September 30, 2008As noted on Federal Civil Practice Bulletin, the Fifth Circuit in Harvey v. Grey Wolf Drilling Co., --- F.3d ----, 2008 WL 4194538 (5th Cir. Sept. 15, 2008) joined the First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits...
Recent Scholarship
Posted on September 29, 2008The following two articles might interest our readers: Prof. Paul Lund, Federally-Chartered Corporations and Federal Jurisdiction Prof. Austen Parrish, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants --RR
Regulatory Competition, Venue and Delaware's Stake in Corporate Law
Posted on September 25, 2008Delaware has a near monopoly on desirability for incorporation. However, this monopoly might be faltering with the increase in the fight over venue. Faith Stevelman posted Regulatory Competition, Venue and Delaware's Stake in Corporate Law on SSRN.com looking at the...
Sponge Bob to the Rescue
Posted on September 18, 2008Hurricane Ike has significantly damaged the Texas coast, including the city of Houston, home to law firm Vinson & Elkins. Many of Houston's millions of residents are still without power and other basic services. To help lawyers cope with problem,...
Preservice Removals and Appellate Review
Posted on September 16, 2008While we've occasionally posted about preservice removals, Beck and Herrmann have done the heavy lifting. In today's installment, they ask for appellate guidance. Lower courts are split on whether a case can be removed when it contains a forum-state-citizen defendant...
Balancing the Pleading Equation
Posted on September 15, 2008Paul J. Stancil posted Balancing the Pleading Equation on SSRN, which explores the asymmetries of cost and information in the pleading system and how to strike the right balance between these considerations.--Counseller
"To the extent it is correct"
Posted on September 15, 2008Recently, the Sixth Circuit decided In re Hamilton, a case involving interesting questions of preclusion, Rooker-Feldman, the Anti-Injunction Act, and discharge in bankruptcy. Essentially, the bankruptcy court declared some debts discharged. Later, a state court decided against tthe debtor, interpreting...
OK, Discovery?s a Problem, But What Can Be Done About It?
Posted on September 12, 2008Martha Neil has written a piece titled OK, Discovery?s a Problem, But What Can Be Done About It? on abajournal.com. The piece looks at the problems facing the discovery process and explores various possible solutions.--Counseller
'U Can't Touch This' Litigation Hold
Posted on September 12, 2008Check out 'U Can't Touch This' Litigation Hold by Stanley P. Jaskiewicz over at LAW.com. The piece explores the IT litigation hold and how the Federal Rules of Civil Procedure deal with the problem of litigation holds and ever expanding...
"A Unified Theory of 28 U.S.C. s1331 Jurisdiction"
Posted on September 10, 2008Click here to download A Unified Theory of 28 U.S.C. s1331 Jurisdiction, which Michigan State Law Prof Lou Mulligan recently posted on SSRN. The abstract follows: Title 28, section 1331 of the United States Code provides the jurisdictional grounding for...
Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act?
Posted on September 08, 2008Jarrod Wong posted Court or Arbitrator - Who Decides Whether Res Judicata Bars Subsequent Arbitration Under the Federal Arbitration Act? on SSRN, which looks at the Federal Arbitration Act and examines whether courts or arbitrators determine the impact of the...
Erie and the History of the One True Federalism
Posted on August 28, 2008Susan A. Bandes has posted Erie and the History of the One True Federalism on SSRN, which reviews Ed Purcell's book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America...
Fraudulent Joinder: Right versus Obligation to Remove
Posted on August 25, 2008Fraudulent joinder is a familiar removal tool for defendants. The doctrine establishes a right to remove by disregarding a jurisdictional spoiler's citizenship. And 30 days is a familiar removal deadline for defendants: the removal statute's 30-day clock starts ticking from...
City of Cleveland v. Deutsche Bank Trust Co.
Posted on August 19, 2008"For procedural jocks, life don't get much better than this," say Beck and Herrmann yesterday, reporting on a recent removal/remand decision. Click here to read their summary and find a link to the decision, which addresses everything from the timing...
A new comment to an old post
Posted on August 18, 2008Back in June, Prof. Counseller wrote about a personal-jurisdiction case styled Phillips v. Prarie Eye Center from the First Circuit. We recently received the following comment and thought we should bump it to the top in case folks want to...
Standing Committee Requests Comments on Proposed Rules' Amendments
Posted on August 15, 2008Ben Spencer reports here.
Cross-Jurisdictional Class-Action Tolling Scorecard
Posted on August 08, 2008Does filing an unsuccessful class action in one jurisdiction toll the limitations periods for potential plaintiffs in another jurisdiction? Beck and Herrmann have done the research for you -- and have posted a "scorecard." --RR
Class-Action Reading
Posted on August 07, 2008Blum v. General Electric contains an interesting blend of procedure and contract law. There, some class members had earlier entered into a "Stipulation of Dismissal of Certain Plaintiffs' Claims Without Prejudice." In that earlier litigation, the parties agreed to the...
E-Discovery Symposium - Call for Papers
Posted on August 06, 2008FYI: Chase College of Law Northern Kentucky University Law Review Call for Papers and Panelists E-discovery Symposium ? Saturday, February 28, 2009 Chase College of Law?s Northern Kentucky University Law Review welcomes proposals of both articles and panel presentations for...
Two cases on sanctions
Posted on August 05, 2008Two recent Seventh Circuit cases involving sanctions deserve a read: In de Manez v. Bridgestone, in the context of forum non conveniens, the parties fought about whether Mexican courts were an available alternative forum. "The evidence showed that plaintiffs' U...
Speaking of the Second Branch
Posted on August 01, 2008This week, yet another court remanded a case to state court because Grable was not satisfied. In Singh v. Duane Morris LLP, the Fifth Circuit held that second-branch jurisdiction did not extend to plaintiff's malpractice claim. Suit one was a...
Comments Appreciated
Posted on August 01, 2008For those interested, I've posted a revised draft on SSRN of my most recent article: It's Just Not Worth Searching for Welcome Mats with a Kaleidoscope and a Broken Compass. If you have comments, please do e-mail them. The abstract...
Return to blogging
Posted on July 31, 2008It's time to catch up on the reading list and return to blogging. As I proceed through my list, I'll link to the decisions and articles I think will interest our readers. For today, readers might be interested in the...
Prof. McMillan Posts New Article
Posted on July 22, 2008The American Journal of Trial Advocacy recently published Prof. Lance McMillian's new article on frivolous litigation--The Nuisance Settlement 'Problem': The Elusive Truth and a Clarifying Proposal. The article challenges the conventional wisdom that nuisance/frivolous litigation is a widespread problem...
Texas Questions World Court?s Jurisdiction
Posted on July 21, 2008As reported on SCOTUSblog and the Wall Street Journal Law Blog, the World Court, also known as the International Court of Justice, ordered the U.S. to stop the execution of five Mexican nationals currently residing on Texas? death row. This...
D.C. Council?s Response to Heller
Posted on July 21, 2008As noted on SCOTUSblog, in response to D.C. v. Heller, the Washington, D.C., council recently made available the final versions of its new gun laws. View SCOTUSblog?s coverage and a link to the new laws here. ?Counseller/eh
Why Potential Jurors Should not Curse Judges
Posted on July 18, 2008How Appealing has recently posted an article entitled, ?Woman Gives Judge Earful, Lands in Jail.? This article discusses how a 23-year old woman called the presiding judge a two-syllable curse word in front of 178 potential jurors because she was...
Important Cases Denied Cert by the Supreme Court
Posted on July 18, 2008SCOTUSblog recently added a post, The Grants That Got Away, which discusses how the Justices heard oral argument in 70 cases. This amount is fewer than any term in more than half a century. This post goes on to discuss...
Exxon Uninterested in Interest
Posted on July 17, 2008In further Exxon v. Baker news, as pointed out on SCOTUS Blog, the oil giant has asked the Supreme Court to forbid the class of fishermen and others harmed by the Exxon Valdez spill from collecting around $488 million in...
5th Circuit Vacates Order of Monetary Sanctions
Posted on July 16, 2008In Marlin v. Moody Nat. Bank, 2008 WL 2568823 (5th Cir. 2008), the Fifth Circuit held that a district court abused its discretion in ordering the plaintiffs to pay $640,000 in monetary sanctions because Fed. R. Civ. P. 11 was...
Chat with Hazard Gillespie on WSJ law blog.
Posted on July 16, 2008The folks over at the Wall Street Journal Law Blog recently interviewed Hazard Gillespie. Hazard, now 98, has worked at Davis Polk & Wardwell since cutting his teeth on Erie v. Tompkins as their first summer intern in 1934. Click...
?The Era of Punitive Damages is Not Over?
Posted on July 15, 2008Ted Frank writes this opinion piece in The Wall Street Journal discussing the recent Exxon decision reducing punitive damages and the effect of the Court?s 1:1 ratio. ?Counseller/nc
6th Cir.: Tax Court Not ?Court?
Posted on July 15, 2008As noted on Tax Prof Blog and Federal Civil Practice Bulletin, The Sixth Circuit affirmed in Mobley v. Commissioner, No. 07-2019 (6 th Cir. July 08, 2008), that a Tax Court is not a ?court? for purpose of 28 U.S.C....
Rhyme and Reason
Posted on July 10, 2008As many of you may have already seen on the Wall Street Journal Law Blog, in response to a 465-page racketeering law suit filed in Washington State federal judge Ronald Leighton wrote this limerick: Plaintiff has a great deal to...
2d Circuit and Renewal of Rule 50 Motion for Judgment as a Matter of Law.
Posted on July 09, 2008As noted over at Federal Civil Practice Bulletin, the Second Circuit in Brady v. Wal-Mart Stores, Inc., --- F.3d ---, 2008 WL 259736 (2d Cir. July 02, 2008), discusses the prerequisites for a motion for judgment as a matter of...
?Facial Challenges Are Out?
Posted on July 09, 2008David G. Savage writes this article in July?s issue of the ABA Journal discussing the movement of civil rights cases in the Supreme Court. As he puts it: ?Facial challenges are out. As-applied challenges are in.? Recent cases reveal that...
Justice Kennedy: ?An Accident of History??
Posted on July 08, 2008David Broder writes an interesting article discussing the career of Justice Kennedy, his appointment to the Supreme Court, and his role as the Court?s ?most influential member.? The full article, which is posted on washingtonpost.com, can be read here...
5th Circuit Proposes Amendment Concerning Admission Fee to Practice
Posted on July 08, 2008Click here to see the proposed amendment to Fifth Circuit Rule 46.1, concerning admission fees to practice in the Fifth Circuit. The proposed amendment seeks to increase the number of attorneys who are exempt from paying the admission fee. ?Counseller/nc
The Supreme Court Limits the Mentally Ill?s Right of Self-Representation
Posted on July 07, 2008The New York Times recently published an article entitled "Self-Representation by the Mentally Ill is Curbed," which can be accessed here, that discusses the 7-2 decision of Indiana v. Edwards. This ruling denies mentally ill defendants, who are nonetheless determined...
Supreme Court Just as Divided as Ever
Posted on July 07, 2008We recently posted a link to an article which noted the lack of 5-4 decisions on the Supreme Court this year as compared to last year. But, an article published Monday on SCOTUSblog looks at the overall statistics of the...
Supreme Court Grants Cert in Foreign Property Attachment Case
Posted on July 07, 2008The Federal Civil Practice bulletin has recently added a post, which can be access here, regarding the Supreme Court?s granting of cert. in Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi. This case...
Class Actions and Hospital Bills
Posted on July 07, 2008As noted by Law.com, the third circuit in DiCarlo v. St. Mary?s Hospital recently decided in a unanimous decision to reject a class action suit brought against the hospital by uninsured patients for price gouging. The court reasoned that dismissal...
?When You Got Nothing, You Got Nothing to Lose?
Posted on July 02, 2008Recently, in a 5-4 opinion, the Court held in Spring Communications Co. L.P. v. APCC Services, Inc., No. 07-552, that a plaintiff that has been assigned the right to pursue a legal claim has standing under Article III, even though...
Punitive Damage Award Limited to 1:1 Ratio
Posted on July 02, 200819 years ago, an Exxon supertanker spilled millions of gallons of crude oil off the coast of Alaska. After trial, the jury awarded $287 million in compensatory damages and $5 billion in punitive damages against Exxon. The Ninth Circuit remitted...
Swinging With Kennedy and O?Connor
Posted on July 02, 2008Over on Slate.com there is an interesting article comparing the swing voting styles of Justices Kennedy and former Justice O?Conner. This article examines the liberal and conservative swings of these two justices in light of important issues such as abortion...
Heller
Posted on June 26, 2008The Court decided Heller, striking down D.C.'s ban. Justice Scalia wrote for the five-person majority. Click here to visit SCOTUSBlog, whose extensive coverage has already begun. Today was the final opinion day for the Court this term. Am I wrong...
Converting a Rule 12c motion to a rule 56 motion: Sensations Inc. v. City of Grand Rapids
Posted on June 24, 2008In case you haven?t seen this yet on the Federal Civil Practice Bulletin, the Sixth Circuit recently decided Sensations Inc. v. City of Grand Rapids. There, Plaintiffs-Appellants argued that by considering the legislative record attached to Defendants' motion, the district...
An Eye For Personal Jurisdiction?
Posted on June 20, 2008In Philips v. Prairie Eye Center, the First Circuit recently held that an eye treatment center did not meet the ?minimum contacts? standard by negotiating an employment contract via e-mail with an eye doctor in the forum state. When addressing...
Republic of Philippines v. Pimentel and FRCP 19b
Posted on June 19, 2008Last Thursday, the Supreme Court ruled on Republic of Philippines v. Pimentel, holding that Federal Rule of Civil Procedure Rule 19 required the dismissal of an interpleader in the absence of one of the parties, the Republic of the Philippines....
?Out of Bounds? ? Bush Administration?s Executive Privilege Claims
Posted on June 17, 2008On Slate.com, David Iglesias posted an article titled ?Out of Bounds ? The Bush Administration?s Executive Privilege Claims Almost Make Watergate Look Like a Fond Memory.? To read the entire article discussing executive privilege claims, click here. --Counseller/nc
E.D. Pa. Finds Claim Inadequately Pleaded under Twombly
Posted on June 17, 2008In George v. American Baptist Churches USA, 2008 WL 226581, the Eastern District of Pennsylvania dismissed Plaintiff?s claim of discriminatory discipline. The only paragraph in the complaint which could possibly be read to state such a claim is paragraph 16,...
2d Cir: Federal Magistrates Lack Power to Remand
Posted on June 16, 2008Law.com?s Mark Hamblett discusses the Williams v. Beemiller, Inc.case, in his piece, ?2nd Circuit Holds Magistrate Lacks Power to Remand.? In Williams, the Second Circuit challenges a federal magistrate?s power under 28 U.S.C. § 1447 to remand cases to state...
"Of Pre-Service Removals, Yet Again"
Posted on June 16, 2008Over at Drug & Device Law, Beck and Herrmann note the latest development in a topic we've both been covering: removal games and 28 U.S.C. s1441(b)'s joined-and-served provision. Click here to read today's DDL post; click here to read our...
5-4 Supreme Court Rulings Fade
Posted on June 13, 2008The New York Times? Linda Greenhouse recently worte a piece here about the absence of 5-to-4 decisions this term. A year ago at this time, the Supreme Court decided thirteen cases by a vote of 5-to-4, but so far this...
Pleading Civil Rights Claims Post-Conley
Posted on June 13, 2008The Federal Civil Practice Bulletin recently posted an abstract from Professor A. Benjamin Spencer?s article, ?Pleading Civil Rights Claims in the Post-Conley Era.? Spencer (Washington & Lee) attempts to examine and distill the impact of Twombly on pleading standards the...
Taylor v. Sturgell
Posted on June 12, 2008In Taylor, the Supreme Court rejected the virtual-representation doctrine in the preclusion context and remanded for the lower court to determine whether plaintiff's suit was barred under established preclusion principles. Taylor was the plaintiff in the second of two similar...
Supreme Court disapproves "virtual representation."
Posted on June 12, 2008Today, the Supreme Court decided Taylor v. Sturgell, which we earlier mentioned here . Justice Ginsburg, writing for a unanimous Court, "disappove[d] the doctrine of preclusion by virtual reprsentation" and vacated the lower-court opinion. More to come on this opinion...
Interview with Bryan A. Garner
Posted on June 12, 2008Sunday?s editions of The Dallas Morning News included an interview with Bryan A. Garner, author of The Art of Persuasion. Mr. Garner began interviewing eight of the nine Supreme Court justices on legal writing and advocacy two years ago and...
Court Will Review Punitive Damage Case for Third Time
Posted on June 12, 2008The Supreme Court will review a $79.5 million punitive damages award against Philip Morris USA in a suit brought by the widow of a smoker who died of cancer in 1997. With interest, the award has grown to about $145...
Jurors and Sudoku
Posted on June 10, 2008This link needs little introduction: The game's Up: jurors playing Sudoku abort trial. (Hat Tip to How Appealing)--RR
Judge or Jury
Posted on June 09, 2008Last week, the Seventh Circuit decided Pavey v. Conley, a case worth reading for its analysis of whether judges or juries resolve disputed fact questions. There, a prisoner alleged excessive force in his s1983 claim. Defendants answered, asserting that the...
E-Discovery: waivers and key words
Posted on June 06, 2008Click here to read a recent ABA Journal article about waiving privilege in E-discovery by using untested key words. The article begins: "A federal magistrate in Baltimore has ruled a company sued for infringement has no attorney-client privilege in 165...
Chat With Scalia on WSJ law Blog:
Posted on June 02, 2008As part of our ongoing coverage of the Scalia media blitz, I wanted to point out that at the Wall Street Journal Law Blog there's a Q and A with Justice Scalia. Part one is on ?Knowing your audience, and...
?Stark Contrasts Between McCain and Obama in Judicial Wars?
Posted on May 30, 2008This piece by Neil A. Lewis was in yesterday?s New York Times. Lewis makes the point that, in McCain?s 22 years in the Senate, he has not been a major player in the judicial wars. He has supported recent judicial...
Personal Jurisdiction in the Clemens case
Posted on May 29, 2008Yesterday's Houston Chronicle discusses defendant's (McNamee's) territorial-jurisdiction challenge in the Roger Clemens defamation case. Arguing that McNamee purposefully directed his tortious conduct at a known Texas resident, Clemens's lawyer was quoted as saying "It's only fair McNamee should have to...
The Significance of Philip Morris v. Williams
Posted on May 28, 2008In the most recent issue of the NYU Survey of American Law, Professor Michael Allen, Stetson University College of Law, published Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance of Philip Morris v. Williams. Part I of...
New Redish article on construing The Rules Enabling Act
Posted on May 26, 2008Prof. Martin Redish and Dennis Murasko recently posted The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation. The article will appear in Volume 93 of the Minnesota Law Review, and its abstract follows: The Rules Enabling...
Case Watch: In Re: Volkswagen of America
Posted on May 23, 2008Yesterday, the Fifth Circuit heard en banc oral argument in In Re: Volkswagen of America. Of interest in the case is this amicus brief, signed by 14 law professors, filed in support of respondents. The issue concerns the proper transfer...
Katrina Still Making Waves
Posted on May 22, 2008I wish I had brought this case to your attention a bit sooner (better late than never, I suppose), but the Fifth Circuit issued an opinion last month you might want to take a look at. In Louisiana v. AAA...
My State's High Court is Better Than Yours!
Posted on May 22, 2008Profs Choi, Gulati, and Posner have posted on SSRN their new article, Which States Have the Best (and Worst) High Courts?, which ranks the high courts of the fifty states based on their performance between 1998-2000. Criteria used to evaluate...
SCOTUS Watch: May 22 Conference
Posted on May 21, 2008On Thursday, May 22, 2008, the Supreme Court will hold a conference to consider petitions in a number of cases, including several of interest to CivPro folks. T-Mobile USA, Inc., et al. v. Laster, et al., 07-976: Whether, under the...
D.C. Cir: U.S. Currency Discriminates Against Blind
Posted on May 20, 2008This morning the D.C. Circuit issued its opinion in The American Council of the Blind v. Paulson in which it held that U.S. currency discriminates against the visually impaired in violation of the Rehabilitation Act, 29 U.S.C. s 794. Here...
Inquiry into the Merits at the Class Certification Stage
Posted on May 20, 2008You might want to give In re New Motor Vehicles Canadian Export Antitrust Litigation a read. The First Circuit discusses the degree of inquiry into the merits that is required at the class certification stage. The Supreme Court has yet...
Solicitor General Urges Court to Refuse Review of Collateral Order Doctrine Case
Posted on May 19, 2008On Friday, the United States Solicitor General urged the court to refuse to hear Exxon Mobil, et al., v. Doe, et al. (07-81), a lawsuit filed by Indonesians who claim guards at an Exxon Mobil natural gas plant abused them....
The Anonymous Justice Souter
Posted on May 16, 2008Justice Souter has a reputation of avoiding the spotlight in an age when justices write autobiographies, go on book tours, and give interviews. Recently Bloomberg.com posted an interesting piece, Souter Protects Anonymity as Court Colleagues Seek Spotlight...
Who Would the Presidential Candidates Bring into the Justice Department?
Posted on May 15, 2008With the presidential election less than six months away, each of the three presidential candidates is considering who they would bring into the Justice Department. Last week, Senator John McCain released a list of 48 legal advisers and has been...
No Quorum
Posted on May 14, 2008On Monday, the Supreme Court was forced under 28 U.S.C. § 1 to affirm the Second Circuit?s decision in American Isuzu Motors, Inc.v. Ntsebeza and allow South African citizens to proceed in a lawsuit against American and foreign corporations. The...
Claim Preclusion and the Contract Disputes Act of 1978
Posted on May 13, 2008You may have noticed the case of Phillips/May Corp. v. United States thanks to the folks over at the Appellate Review Blog, but, if not, here is a link to the decision out of the Federal Circuit on whether the...
Making His Case?
Posted on May 12, 2008So why did Justice Scalia co-author and promote a book on legal persuasion? Here Dahlia Lithwick discusses on Slate.com (with a different version in this week?s Newsweek) what she sees as the possible motivation for Justice Scalia?s book and the...
Judicial Hellholes, Lawsuit Climates, and Bad Social Science ...
Posted on May 07, 2008Prof. Elizabeth Thornburg recently posted her article, Judicial Hellholes, Lawsuit Climates, and Bad Social Sciences: Lessons from West Virginia on SSRN. The abstract of the article, which has been accepted for publication in Vol. 110 of the West Virginia Law...
Making Your Case
Posted on May 06, 2008We posted here about Justice Scalia's and Brian A. Garner's new book, Making Your Case: the Art of Persuading Judges. Justice Scalia's been all over the place promoting the book, including on 60 Minutes, as we mentioned here. Now, the...
Alien Corporations
Posted on May 01, 2008For purposes of 28 U.S.C. s1332, what is the citizenship of a corporation that is incorporated domestically and that has its principal place of business abroad? Yesterday, the Seventh Circuit correctly concluded that such a corporation is only a citizen...
MDL Transfer After Section 1404 Denial
Posted on May 01, 2008If a trial court denies a party's section 1404 venue-transfer motion, should that ruling preclude the Judicial MDL panel from transferring under section 1407? Beck and Herrmann discussed the issue Wednesday. --RR
D.C. Circuit Joins the Twombly Fray
Posted on April 30, 2008Prof. Scott Dodson has written for us before on Twombly (and other subjects). He has this to say about a recent D.C. Circuit case: There has been much discussion on the impact of Bell Atlantic v. Twombly, which set a...
Preliminary Draft of Proposed Amendments to Federal Rules
Posted on April 29, 2008The Advisory Committee has proposed amendments to the federal rules, including the Rules of Civil Procedure, and the public-comment period is open. You can read the Summary for Bench and Bar here and read Ben Spencer's post on the topic...
Justice Scalia and 60 Minutes
Posted on April 28, 2008Last night, 60 Minutes broadcast its interview with Justice Scalia. You can read a short piece on the interview and watch about thirty minutes of interview footage here. Below is a transcript of a portion of Lesley Stahl's introduction.--Counseller Not...
"I try not to read that many cases"
Posted on April 25, 2008In case you haven't seen it, check out this story, which involves the following exchange at a recent 5th Circuit oral argument: Judge: You don?t know Morgan? Phipps: Nope. Judge: You haven?t read it? Phipps: I try not to read...
Petitions to Watch
Posted on April 23, 2008SCOTUS Blog has a recurring feature called Petitions to Watch, which is an attempt to predict the petitions the court is likely to grant. Of particular interest to our readers will be the petitions in two cases involving federal court...
What Twombly and Mead have in Common
Posted on April 21, 2008Prof. Amy J. Wildermuth recently posted an essay on the Northwestern Colloquy, titled What Twombly and Mead Have in Common. Thanks to Editor Kristin Feeley for the heads-up and the following summary: Professor Amy Wildermuth discusses the similarity between the...
DDL on Judicial Notice
Posted on April 18, 2008Over at Drug & Device Law, Beck and Herrmann wrote extensively yesterday about judicial notice in the preemption context. It's always interesting for me to read the DDL crew's take on procedural matters as they arise in sophisticated litigation, and....
Taylor v. Sturgell OA Transcript
Posted on April 17, 2008Thanks to the fine folks at SCOTUS Blog you can read the transcript of yesterday's oral argument in Taylor v. Sturgell here. The court had lots of questions for both petitioner and respondent, and the discussion raises the possibility of...
Virtual Representation
Posted on April 16, 2008The Supreme Court will hear argument this morning in Taylor v. Sturgell. The question in the case, which has created a circuit split, is whether a person who was not a party to previous litigation and has no legal relationship...
Summary Judgment Articles
Posted on April 15, 2008The Iowa Law Review recently hosted a symposium on procedural justice. One subtopic was Summary Judgment and Seventh Amendment Concerns. SSRN links appear below to the work of the panelists: Professor William E. Nelson, Summary Judgment and the Progressive Constitution...
Scalia "Not a Nut"
Posted on April 11, 2008Justice Scalia is out promoting a new book he co-authored with Bryan A. Garner titled Making Your Case: The Art of Persuading Judges and generating newsworthy quotes at a rapid clip. In this ABA Journal piece, Scalia is quoted as...
Electronic Discovery
Posted on April 10, 2008You may have already noticed this new publication (perhaps because of the fine work of the folks over at the Mass Tort Litigation Blog), but the Rand Corporation has issued a report on electronic discovery authored by James N. Dertouzos,...
Legal Education Questions
Posted on April 09, 2008At Madisonian.net, there's quite a conversation ongoing about what law schools do, what they should do, and what they can realistically expect to do. Dean Chemerinsky's post "A law school for the 21st century" is a good place to start....
A Couple Things You Might Have Missed
Posted on April 08, 2008Take a look at this post and the accompanying links over at Appellate Law & Practice about the recent press the Second Circuit Clerk's office has been receiving. Also, click here to check out Howard Bashman's post and link on...
New Supplemental Jurisdiction Article
Posted on April 07, 2008The Florida Law Review has published Prof. Douglas Floyd's latest article, Three Faces of Supplemental Jurisdiction After the Demise of United Mine Workers v. Gibbs. With your Westlaw password, you can access the full article here.--Counseller
"What is the Erie Doctrine?"
Posted on April 03, 2008Click here to read Cincinnati Prof. Adam Steinman's recent article: What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?). The abstract follows: As when Erie Railroad v. Tompkins was decided seventy years...
Judge Orders White Lawyers Out of Court
Posted on April 02, 2008Fulton County Superior Court Judge Marvin Arrington ordered white lawyers out of his courtroom so that he could speak directly to the young black defendants present. Judge Arrington now admits it was a mistake to exclude the lawyers, but he...
Underfunded State Courts
Posted on April 01, 2008Listen to this NPR story about how state courts are trying to provide constitutionally mandated services in the face of significant budget cuts. While all branches of state government are feeling the economic pinch, state courts are hit particularly hard...
Review of Arbitration Awards under the FAA
Posted on March 31, 2008Last week the Supreme Court handed down its opinion in Hall Street Associates v. Mattel. Mattel was Hall Street's tenant in a manufacturing facility. Hall Street filed suit against Mattel for breach of the lease agreement and to indemnify it...
New Trial Motions after Summary Judgment
Posted on March 28, 2008Over at the California Blog of Appeal, Greg May asks: Can you move for a new trial when your case was disposed of by summary judgment? This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new...
Revolving Trapdoors ... and Rule 50
Posted on March 27, 2008Tulane Prof. Steven Childress has a forthcoming article in the Review of Litigation titled Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury after Unitherm and Amended Rule 50. Click here to download the latest draft from SSRN or read...
Federal Question Jurisdiction and the Federal Arbitration Act
Posted on March 25, 2008Click here to read "Federal Question Jurisdiction and the Federal Arbitration Act," posted on SSRN by Northern Kentucky Profs. Richard Bales and Jamie Ireland. The article is forthcoming in the Colorado Law Review, and the abstract follows. --RR The Federal...
Cert. Granted
Posted on March 19, 2008On Monday, the Supreme Court granted Certiorari in Vaden v. Discover Bank. The case presents two interesting jurisdictional issues, which I plan to write more about as the case approaches: 1. Whether a suit seeking to enforce a state-law arbitration....
Cyberspace Jurisdiction (From an Alien's Point of View)
Posted on March 18, 2008If you're into 431-page books on cyberspace jurisdiction, check out this SSRN link. -RR
The Problem of the Expert Juror
Posted on March 16, 2008Prof. Paul Kirgis recently posted an article on SSRN titled "The Problem of the Expert Juror." The article will appear in volume 75 of the Temple Law Review. The link and abstract appear below: A fundamental principle of the Anglo-American...
Collins v. D.R. Horton, Inc.
Posted on March 14, 2008This Supreme Court term hasn't yielded many noteworthy decisions in the areas of jurisdiction and procedure. Nor have the petitions to watch at SCOTUSblog provided much to get excited about. The most recent edition describes a petition from a 9th...
445,450 free opinions
Posted on March 12, 2008It's probably time to bookmark precydent.com. It provides free, searchable access to law and currently advertises that its database contains 445,450 opinions and 2501 statutes. I'll be interested to get feedback on the site from our non-professor readers (who don't...
Wasserman Article: Video Evidence and Summary Judgment
Posted on March 11, 2008On SSRN, Howard Wasserman recently posted Video Evidence and Summary Judgment: The Procedure of Scott v. Harris. The article now appears in Vol. 91 of Judicature, and the abstract follows: In Scott v. Harris (2007), the Supreme Court granted summary....
A Must Read
Posted on March 06, 2008If you haven't read this order yet from the Eastern District of Pennsylvania, do it now.--Counseller
Warner-Lambert
Posted on March 06, 2008Over at Drug and Device Law, Beck and Herrmann have an interesting post about the Supreme Court's recent (non)decision in Warner-Lambert v. Kent. It begins: As the whole drug and device world knows by now, Warner-Lambert v. Kent played to...
A Renaissance
Posted on March 05, 2008Prof. John Sonsteng recently published A Legal Education Renaissance. You can download the paper and join a conversation about the project and its recommendations here. The abstract follows.--Counseller A Legal Education Renaissance suggests a model for change and provides answers...
Welcome Mats and Kaleidoscopes
Posted on March 04, 2008If anyone is interested in my recent article, It's Just Not Worth Searching for Welcome Mats with a Kaleidoscope and a Broken Compass, you can download it below. Please do e-mail me any comments or suggestions. The abstract follows: Justice...
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As of right now i am currently residing in a federal halfway house and wish to pursue a 28 U.S.C.1331 civil action lawsuit which initially began in 2003 to the present date.if the litigation is still continuing,can i sti
Give me the specifics and maybe I can tell you if your case is worth trying. Whe...
Will the Uniting American Families Act pass soon now that Democrats control Congress?
The bill is sponsored by Democrats in both the House and Senate which gives it a...
How is a civil court summons usually served?
The plantiff has a duty to notify the defendant that a law suit has been initiat...
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Can a former employee use photographs of jobs completed whie working for me in marketing material for a new business?
There are several issues here
1. Sub contractor started up a compe...
My children's school is falsely charging me with truancy. The local district justice works for the school in the most blatently open way. And his wife works for the district, too! They have violated private health record
I am no lawer by any means, so I would love for someone to verify what I have to...
As of right now i am currently residing in a federal halfway house and wish to pursue a 28 U.S.C.1331 civil action lawsuit which initially began in 2003 to the present date.if the litigation is still continuing,can i sti
Give me the specifics and maybe I can tell you if your case is worth trying. Whe...
Will the Uniting American Families Act pass soon now that Democrats control Congress?
The bill is sponsored by Democrats in both the House and Senate which gives it a...
How is a civil court summons usually served?
The plantiff has a duty to notify the defendant that a law suit has been initiat...
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