That's the topic of Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights by law professor Judith Resnik. Here is the abstract: Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the […]
Category Archives: Uncategorized
In an opinion issued this morning, an almost unanimous en banc Court of Appeals for the Ninth Circuit has overturned the panel opinion in Garcia v. Google, which last year granted a mandatory injunction requiring Google to remove the video “Innocence of Muslims” from YouTube on the ground that, when an actress was tricked into […]
This morning we have a broad hint that the Ninth Circuit's en banc opinion in Garcia v. Google is to be expected today, and that the ruling will reverse Judge Kozinski's opinion for the panel. What the ground of that opinion will be, who will write, and what the split among the judges will […]
In the complaint, A.G. Karl Racine says the defendants, a married couple named Hofgard who control at least 28 entities, renovated and sold 15 homes since 2013 that had not been properly permitted or inspected. In one instance, according to the complaint, the shoddy work caused the partial collapse of a neighboring property's wall. "They […]
The Supreme Court granted review this morning in Campbell-Ewald Company v. Gomez, which presents the following important issues about mootness: 1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim. 2. Whether the answer to the first question […]
In 2009, the U.S. Supreme Court decided a case called Ashcroft v. Iqbal. The issue before the Court was the adequacy of the complaint filed in the case, and the Court held that the case should be dismissed, prior to discovery, because the allegations in the complaint were too conclusory and not plausible. Although the […]
If you haven't seen analysis of the deadly Amtrak crash in Philadelphia this week, read this agonizing story from the New York Times. Amtrak was quite close to having a system that could have prevented the disaster, but "the system, which was tantalizingly close to being operational, was delayed by budgetary shortfalls, technical hurdles and […]
Yesterday, Brian flagged an article about courts' distortions of mootness doctrine in the context of Rule 68. Fortunately, help is on the way (at least in some circuits). For instance, the Second Circuit held this week (in a case in which Public Citizen filed an amicus brief) that an unaccepted Rule 68 offer does not […]
If you're interested in that topic, you may want to look at Don't Try this at Home: The Troubling Distortion Of Rule 68 by Bradley Girard. Here's the abstract: Rule 68 of the Federal Rules of Civil Procedure was enacted to promote consensual settlement. Through a mandatory cost-shifting mechanism, the Rule incentivizes defendants to make […]
We wrote yesterday about the failure of fast-track trade authority to proceed in the Senate. Today saw a reversal of fortune, with fast-track moving ahead along with two other bills meant to temper Senate opposition. The Washington Post reports. Also worth a read on the subject are two articles this week covering the cases for […]