\u3ci\u3eAmEx\u3c/i\u3e and Post-Cartesian Antitrust

I. Introduction II. Situating American Express ... A. Different Sides of the American Express Opinion ... 1. Two-Sided Markets ... 2. The American Express Opinion ... B. The Real Issue Is Messy, Not Two-Sided, Markets … C. The Many Messes of Modern Markets III. Competition in Messy Markets ... A. Simple Competition in Simple Markets ... B. More Complex Competition in Messier Markets ... C. American Express: The Competition Is in the Pudding IV. The Many Sides of AmEx’s Rightness ... A. A Burden Best Born by Plaintiffs ... B. Economic Theory as a Question of Law or of Fact? V. Conclusio

The management of civil cases: a snapshot

Reports on research into the extent to which eight county courts have succeeded in using case management to fulfil the goals of the 1999 civil justice reforms. Reviews the main findings on whether the modifications have brought about a change in litigation culture, the practical application of the case management process, the use of experts, the role of case management conferences and the number of cases in which settlement occurs, including the impact of CPR Part 36. Discusses concerns relating to resources, court administration and the effect of the reforms on costs

Discovering Discovery: Non-Party Access to Pretrial Information in the Federal Courts 1938-2006

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where private attorneys general may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This article considers the legal history and case law of one aspect of openness in the federal courts: public access to discovery material gathered by parties engaged in federal litigation. The public, the press, researchers, and various others have legitimate interests in this information. This right should include pretrial material unprotected by valid protective orders issued under the Federal Rules of Civil Procedure

Notes Procedural Fencing in Retiree Benefits Disputes: Applications of the First-Filed Rule in Federal Courts

Basil Chapman retired from ACF Industries, a railroad-car maker, after thirty-eight years of service. In December 2003, he received an unexpected phone call at his West Virginia home from a union representative, who informed him that an ACF executive wanted to speak with him. When they spoke, the executive informed Mr. Chapman that ACF was planning on changing its retirees’ health coverage plan. The ACF plan would now have a lifetime maximum benefit cap on hospital and surgical expenses for each participant and would require retirees to make monthly contributions. According to court papers filed later, Mr. Chapman responded, “We have a contract. You can’t do that.” Then, he said that he would “file in federal court” against ACF. The next business day, ACF filed a declaratory judgment action in the United States District Court for the Eastern District of Missouri asking the court to rule that retiree benefits were not vested and that ACF accordingly could alter benefits unilaterally. On January 26, 2004, Mr. Chapman, other named plaintiffs, and their union sued ACF in the United States District Court for the Southern District of West Virginia

A New Guard at the Courthouse Door: Corporate Personal Jurisdiction in Complex Litigation After the Supreme Court’s Decision Quartet

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state\u27s exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court\u27s decision quartet recasts the International Shoe continuum of corporate contacts for which it would be reasonable for the state to exercise jurisdiction based on traditional notions of fair play and substantial justice into a more rigid bright-line dichotomy between general and specific jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of the suit\u27s connection to the state, the company must be essentially at home in the jurisdiction, generally requiring that the company be incorporated or have its principal place of business there. Otherwise, the court must have specific jurisdiction, in which the claims of each plaintiff must arise out of or relate to the company\u27s contacts with the state. Justice Sotomayor issued concurring and dissenting opinions warning that the Court\u27s new approach could seriously curtail nationwide class action and mass tort litigation involving corporate wrongdoing, particularly in cases involving foreign country corporations, multiple corporate defendants, and smaller claimants. Given the critical importance of personal jurisdiction as a gatekeeper for access to our courts, this Article analyzes the changes to International Shoe introduced by the decision quartet as applied to class actions, mass actions, and other large-scale litigation. It concludes that the Supreme Court\u27s decision quartet will reduce forum shopping, that there should continue to be meaningful access to the courts for nationwide or multi-state aggregate litigation, and that other options, such as state-wide only suits brought in states in which plaintiffs are injured, together with nationwide federal Multidistrict Litigation ( MDL\u27) centralization and federal/state court coordination, will also still be available and will often present a better alternative given choice-of-law and other challenges with nationwide and multi-state actions. However, this Article also addresses the very real threats that some courts may too narrowly apply the decision quartet\u27s new tests or apply the tests so as to insulate foreign country companies from jurisdiction. To address these threats, more flexible approaches are proposed for deserving cases with respect to both the decision quartet\u27s at home requirement for general jurisdiction and the quartet\u27s arising out of or related to requirement for specific jurisdiction. It is also proposed that for nationwide or multistate class actions, courts should apply a presumption that considers only the claims of the named plaintiffs for the specific jurisdiction claim connectedness requirement, rather than the claims of each absent class member, which is similar to how federal diversity jurisdiction is already tested only for the named plaintiffs in class actions, although defendants should be permitted to rebut the presumption by showing that the forum state bears insufficient connection to absent class members to satisfy the reasonableness requirement for the assertion of specific jurisdiction on a class-wide basis. Finally, addressing a troublesome topic concerning which the Supreme Court appears closely divided, it is proposed that a foreign company\u27s systematic fifty-state sales targeting be treated as a “purposeful” jurisdictional contact with any state where substantial injury is caused to the plaintiff by the targeting