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Plaintiphobia in the Supreme Court
January 31, 2014
Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations...
January 31, 2014
Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations...
U.S. Supreme Court Asked to Review Delaware’s ‘Secret Trials’ Case
January 22, 2014
Delaware asked the U.S. Supreme Court on Tuesday to review a lower court decision that stopped the state's nationally important business court from overseeing private arbitrations, a process critics compared to secret trials. The U.S. Court of Appeals in Philadelphia upheld in October a ruling that found the five judges on Delaware's Court of Chancery had violated the U.S. Constitution by overseeing private arbitrations in their courtrooms. All court filings and even the existence of the cases...
January 22, 2014
Delaware asked the U.S. Supreme Court on Tuesday to review a lower court decision that stopped the state's nationally important business court from overseeing private arbitrations, a process critics compared to secret trials. The U.S. Court of Appeals in Philadelphia upheld in October a ruling that found the five judges on Delaware's Court of Chancery had violated the U.S. Constitution by overseeing private arbitrations in their courtrooms. All court filings and even the existence of the cases...
Chancery Court Asks U.S. Supreme Court to Revive Arbitration Program
January 22, 2014
The Delaware Court of Chancery has filed a petition for a writ of certiorari asking the U.S. Supreme Court to overturn a federal appellate court decision declaring its confidential arbitration program unconstitutional. The petition was filed Tuesday, two days before the final deadline for a Supreme Court appeal was set to pass.
January 22, 2014
The Delaware Court of Chancery has filed a petition for a writ of certiorari asking the U.S. Supreme Court to overturn a federal appellate court decision declaring its confidential arbitration program unconstitutional. The petition was filed Tuesday, two days before the final deadline for a Supreme Court appeal was set to pass.
High Court Bulks Up on IP Cases
January 15, 2014
The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. In a terse order, the justices agreed to hear copyright infringement claims against Aereo Inc., an online television start-up...
January 15, 2014
The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. In a terse order, the justices agreed to hear copyright infringement claims against Aereo Inc., an online television start-up...
Technology, Not Rules Changes, Is Answer to E-Discovery Costs, Arthur Miller Tells Senate Panel
December 17, 2013
In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme...
December 17, 2013
In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme...
Nevada Supreme Court Protects Confidentiality of Foreclosure Mediation Program Records
November 27, 2013
Last week, the Nevada Supreme Court rejected a non-profit organization’s request to examine records created as part of the state’s...
November 27, 2013
Last week, the Nevada Supreme Court rejected a non-profit organization’s request to examine records created as part of the state’s...
Fifth Circuit Securities Update
November 12, 2013
Since the end of the last survey period, the Supreme Court issued a significant decision holding that defendants in Rule 10b-5 securities fraud actions could not defeat class certification by contesting the materiality of the alleged misrepresentations. Shortly thereafter, the Fifth Circuit applied this holding to bar securities fraud defendants from contesting class certification by arguing that the alleged misrepresentations did not affect the stock price. The Fifth Circuit also addressed several...
November 12, 2013
Since the end of the last survey period, the Supreme Court issued a significant decision holding that defendants in Rule 10b-5 securities fraud actions could not defeat class certification by contesting the materiality of the alleged misrepresentations. Shortly thereafter, the Fifth Circuit applied this holding to bar securities fraud defendants from contesting class certification by arguing that the alleged misrepresentations did not affect the stock price. The Fifth Circuit also addressed several...
At Supreme Court, Tradition Trumps Technology, and Transparency
November 2, 2013
Cameras at the Supreme Court is hardly a new topic, but it got a spirited rehashing last week at an event called “Today’s Supreme Court: Tradition v. Technology and Transparency.” Given that it was sponsored by the Reporters Committee for Freedom of the Press, one need not be clairvoyant to guess how the panelists came out. But Tony Mauro, the National Law Journal correspondent who has covered the court for 33 years, said barring cameras is not the only example of tradition trumping new technology. Some...
November 2, 2013
Cameras at the Supreme Court is hardly a new topic, but it got a spirited rehashing last week at an event called “Today’s Supreme Court: Tradition v. Technology and Transparency.” Given that it was sponsored by the Reporters Committee for Freedom of the Press, one need not be clairvoyant to guess how the panelists came out. But Tony Mauro, the National Law Journal correspondent who has covered the court for 33 years, said barring cameras is not the only example of tradition trumping new technology. Some...
Two New US Ninth Circuit Court of Appeals Arbitration Decisions
October 29, 2013
The US Court of Appeals for the Ninth Circuit released two opinions yesterday of some interest. In Chavarria v. Ralphs Grocery Company (No. 11-56673, October 28, 2013), the Court of Appeals held that the arbitration provision in an employment agreement was unenforceable because it was “procedurally unconscionable because it was a condition of applying for employment and was presented on a “take it or leave it” basis. In addition, its terms were not provided to the plaintiff until three...
October 29, 2013
The US Court of Appeals for the Ninth Circuit released two opinions yesterday of some interest. In Chavarria v. Ralphs Grocery Company (No. 11-56673, October 28, 2013), the Court of Appeals held that the arbitration provision in an employment agreement was unenforceable because it was “procedurally unconscionable because it was a condition of applying for employment and was presented on a “take it or leave it” basis. In addition, its terms were not provided to the plaintiff until three...
Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication
October 28, 2013
In political science, the well-known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus,...
October 28, 2013
In political science, the well-known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus,...
