scholarly journals Procedural Retrenchment and the States

2018 ◽  
Author(s):  
Zachary D. Clopton
Keyword(s):  
Federal Court ◽  
State Courts ◽  
State Court ◽  
The Political ◽  
Private Enforcement ◽  
Access To Justice ◽  
Public Enforcement ◽  
Class Actions ◽  
Summary Judgment ◽  
Procedural Decisions

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.

Class actions: The flood that never came

2018 ◽  
Vol 43 (3) ◽  
pp. 171-176
Author(s):  
David Barda
Keyword(s):  
Federal Court ◽  
Access To Justice ◽  
Unique Combination ◽  
Cost Shifting ◽  
Class Actions ◽  
Contingency Fees ◽  
The Right

After 25 years of class actions in Australia, it is worth reviewing whether the predictions made – that part IVA of the Federal Court of Australia Act 1976 would result in an Americanised litigious culture and a flood of spurious claims – came to pass. This article argues that the flood was more of a trickle and that Australia's unique combination of cost shifting rules, contingency fees and judicial supervision have mitigated against the deluge. It takes the position that Australia has struck the right balance between access to justice and protection against vexatious or unmeritorious claims.

scholarly journals Essay: Justiciability, Federalism, and the Administrative State

2017 ◽  
Author(s):  
Zachary D. Clopton
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Federal Court ◽  
The United States ◽  
Executive Branch ◽  
Judicial Power ◽  
Federal State ◽  
State Court ◽  
Access To Justice ◽  
Advisory Opinion

103 Cornell Law Review 1431 (2018)Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible.This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, case-or controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal–state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.

Measuring Accounting Fraud and Irregularities Using Public and Private Enforcement

2021 ◽  
Author(s):  
Dain C. Donelson ◽  
Antonis Kartapanis ◽  
John M. McInnis ◽  
Christopher G. Yust
Keyword(s):  
Future Research ◽  
Private Enforcement ◽  
Type I ◽  
Accounting Fraud ◽  
Public Enforcement ◽  
Public And Private ◽  
Legal Standards ◽  
Class Actions ◽  
Public And Private Enforcement ◽  
Fraud Prediction

Most accounting studies use only public enforcement actions (SEC cases) to measure accounting fraud. However, private cases (securities class actions) also play an important enforcement role. We discuss the legal standards and processes for both public and private enforcement regimes, emphasize the importance of screening cases for credible fraud allegations, and show both yield credible fraud measures. Further, we demonstrate these research design choices affect inferences from prior research and a hypothetical research setting. Finally, we show common measures of accounting irregularities using Audit Analytics to proxy for fraud result in significant false positives and negatives and develop a fraud prediction model for use in future research. We recommend using both public and private enforcement with appropriate screening when examining accounting fraud to reduce Type I and II errors, or reporting the sensitivity of findings across regimes. This is particularly important given the reduction in accounting-related enforcement after 2005.

scholarly journals OS ILÍCITOS E DAS AÇÕES PRIVADAS DE REPARAÇÃO DE DANO NO MERCADO DE CAPITAIS

2020 ◽  
Author(s):  
Marcus de Freitas Gouvea
Keyword(s):  
Insider Trading ◽  
Capital Market ◽  
Private Enforcement ◽  
Market Manipulation ◽  
Public Enforcement ◽  
The Public ◽  
Securities Law ◽  
Class Actions ◽  
The Law ◽  
The Individual

Resumo O Brasil inicia uma fase de aplicação da lei que rege o mercado de capitais, pela iniciativa privada, não em rompimento, mas em acréscimo a aplicação do direito por órgãos públicos. Aplicação da lei por iniciativa dos particulares vem a reboque do contexto histórico, relacionado tanto a ações privadas, individuais e coletivas, de outros ramos do direito, como consumidor, concorrência, quanto a notícias de escândalos e de combate a corrupção, envolvendo infrações ao mercado. Este texto procura apresentar as linhas gerais dos ilícitos mais importantes contra o mercado de capitais bem como das ações privadas de aplicação do direito que o regula. Dentre as infrações, o texto discute a manipulação do mercado, o uso indevido de informações privilegiadas e outros delitos informacionais. Quanto as ações, o artigo aponta os requisitos básicos da ação individual, da ação civil pública e da ação de responsabilidade do administrador, como meios de reparação de danos decorrentes de infrações ao mercado de capitais. Abstract Brazil begins to experience a private enforcement era of the law of the capital market, in addition to the public enforcement. The private enforcement of the securities law has been influenced by the development of the individual or class actions based on the law that regulates other areas, v.g. consumers law and antitrust law, and by news about the fight against corruption in Brazil. This paper presents the framework of the most important types of capital market misconducts and of the kinds of actions that can be used to enforce the law. The text discuss the practice of market manipulation, insider trading and other practices related to disclosure of information. Among the types of actions, the text discuss the basic requirements of the individual action, the collective action and the derivative action as ways to enforce the securities law in Brazil.  

State Courts: Enabling Access

Daedalus ◽  
2014 ◽  
Vol 143 (3) ◽  
pp. 28-36
Author(s):  
Jonathan Lippman
Keyword(s):  
New York ◽  
Low Income ◽  
Task Force ◽  
New York State ◽  
Unmet Need ◽  
The State ◽  
State Courts ◽  
State Court ◽  
Access To Justice ◽  
Legal Services

In New York, millions of civil litigants each year fight for the necessities of life without the aid of a lawyer because they are unable to afford one. While the state courts strive to provide access to justice for all constituents, this ideal becomes a promise unfulfilled due to the lack of available civil legal services for low-income populations. In this essay, I discuss access to justice in the state courts from the perspective of my role as Chief Judge of the State of New York. I examine the enormity of the unmet need in New York and around the country and discuss the measures I have taken as head of the New York State court system to address the crisis. These efforts have resulted in a substantial increase in state funding for civil legal services, the establishment of the Task Force to Expand Access to Civil Legal Services in New York, annual hearings in each of New York's four Judicial Departments, and the development of programs designed to spur the legal community (including law students) to greater involvement in pro bono work.

Why Habeas Review of State Court Convictions Is More Important than Ever

2012 ◽  
Vol 24 (4) ◽  
pp. 292-297 ◽  
Author(s):  
Lynn Adelman ◽  
Jon Deitrich
Keyword(s):  
Third Party ◽  
State Courts ◽  
State Court ◽  
The Political ◽  
Constitutional Rights ◽  
Habeas Corpus ◽  
Criminal Cases ◽  
Political Pressure ◽  
Judicial Elections ◽  
Federal Judges

This article discusses the continued importance of rigorous habeas corpus review of state court convictions, particularly those obtained in states with an elected judiciary. Given the political pressures faced by elected judges and the tremendous amounts of money now being spent by candidates and third party groups in state judicial elections, it is highly doubtful that state courts can sufficiently protect and enforce the constitutional rights of unpopular litigants such as the criminally accused. An emerging body of research demonstrates that political pressure does indeed affect the manner in which judges rule in criminal cases. Accordingly, habeas corpus review by life-tenured federal judges should, if anything, be expanded, rather than reduced or eliminated, as some have argued.

scholarly journals Unintended Consequences, Loopholes, and Gibberish

2019 ◽  
Vol 7 (1) ◽  
pp. 153-185
Author(s):  
Brian Elzweig
Keyword(s):  
Federal Court ◽  
Unintended Consequences ◽  
Federal Courts ◽  
Class Action ◽  
State Courts ◽  
State Law ◽  
Securities Litigation ◽  
Class Actions ◽  
National Importance ◽  
Beaver County

This Article examines Congress’s decades-long attempt to ensure that securities class action lawsuits of national importance are litigated in federal courts. The intent is limiting strike suits. Congress attempted to curtail strike suits through the enactment of the Private Securities Litigation Reform Act (“PSLRA”). The PSLRA required heightened pleading requirements to ensure the validity of federal securities class actions. Instead of solving the dilemma, plaintiffs circumvented the PSLRA by bringing fraud cases as state law claims. To combat the circumvention of the PSLRA, Congress enacted the Securities Litigation Uniform Standards Act (“SLUSA”). SLUSA federally preempted state law claims based on alleged misrepresentations, untrue statements, or omissions of material facts, requiring them to be brought in federal court. However, SLUSA did not address the concurrent jurisdiction provision of the Securities Act of 1933. This created an anomaly whereby many federal claims under the 1933 Act were brought in state courts, while state fraud claims were required to be brought in federal court. Congress could have addressed this enigma when it enacted the Class Action Fairness Act (“CAFA”). Instead, CAFA, which reformed class actions generally, exempted most securities class actions from its rules. In 2018, the Supreme Court decided Cyan v. Beaver County and allowed 1933 Act claims covered by SLUSA to continue to be brought in state courts. The Court was silent on non-covered securities. This Article recommends how Congress can accomplish its goal of forcing important securities class actions into federal courts.

Medicaid & Medicare: D.C. Appellate Court Denies Claim for Medicare Reimbursement of GME Cost

1999 ◽  
Vol 27 (2) ◽  
pp. 205-205
Author(s):  
choeffel Amy
Keyword(s):  
Medical Center ◽  
Federal District ◽  
Federal Court ◽  
University Of Pennsylvania ◽  
District Court ◽  
Appellate Court ◽  
Court Of Appeals ◽  
Department Of Health ◽  
Administrative Proceedings ◽  
Summary Judgment

The U.S. Court of Appeals for the District of Columbia upheld, in Presbyterian Medical Center of the University of Pennsylvania Health System v. Shalala, 170 F.3d 1146 (D.C. Cir. 1999), a federal district court ruling granting summary judgment to the Department of Health and Human Services (DHHS) in a case in which Presbyterian Medical Center (PMC) challenged Medicare's requirement of contemporaneous documentation of $828,000 in graduate medical education (GME) expenses prior to increasing reimbursement amounts. DHHS Secretary Donna Shalala denied PMC's request for reimbursement for increased GME costs. The appellants then brought suit in federal court challenging the legality of an interpretative rule that requires requested increases in reimbursement to be supported by contemporaneous documentation. PMC also alleged that an error was made in the administrative proceedings to prejudice its claims because Aetna, the hospital's fiscal intermediary, failed to provide the hospital with a written report explaining why it was denied the GME reimbursement.

Sign in / Sign up

Export Citation Format

Share Document