Alison Frankel

Those non-random appellate panels? Study finds they’re (almost) everywhere

By Alison Frankel
December 4, 2014

The random assignment of federal circuit court judges to the three-judge panels that hear appellate arguments is a bedrock assumption about the U.S. judicial system. That’s why it’s notable when panel assignments appear to be the result of something other than sheer fate. I told you yesterday, for example, about a law review article by a University of Georgia law professor who hypothesized that two judges at the 7th U.S. Circuit Court of Appeals have taken advantage of an idiosyncratic policy that permits 7th Circuit judges serving on motions panels to claim authority over the merits of appeals they’ve allowed to proceed. When Edward Whelan of the Ethics and Public Policy Center, who writes the Bench Memos blog at the National Review Online, recently raised questions about assignment procedures at both the 7th and 9th Circuits, he drew responses from judges at both circuits.

At 7th Circuit, unseen judicial mechanics drive decisions: new paper

By Alison Frankel
December 3, 2014

Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?

Reverse the outrageous gag order in Don Blankenship criminal case

By Alison Frankel
December 2, 2014

Donald Blankenship, the former chairman and CEO of Massey Energy, has spent the past five years agitating for public attention in order to clear his name.

Why state AGs could be GM’s biggest litigation problem

By Alison Frankel
December 1, 2014

General Motors will have to face the people of the state of California in state court in Orange County, thanks to a decision last week by U.S. District Judge Jesse Furman of Manhattan, who is presiding over consolidated federal-court claims involving GM’s faulty ignition switches. Furman ruled that a consumer protection and trade practices suit by the Orange County district attorney is fundamentally a law enforcement action that can be litigated despite federal bankruptcy protection for GM’s predecessor. And because California’s suit otherwise involves only state-law claims, Furman said, the case belongs in state court.

Big pension funds mobilize against Delaware fee-shifting clauses

By Alison Frankel
November 26, 2014

Last June, when Delaware’s General Assembly was contemplating legislation to prohibit fee-shifting provisions that would require shareholders to pay defense costs for failed suits, the U.S. Chamber of Commerce’s Institute for Legal Reform moved fast. The Chamber sent a letter to the bill’s sponsor, Bryan Townsend, arguing that the proposed law be deferred. It also wrote to all of the members of the Assembly to urge them to oppose the legislation. Fee-shifting, according to the Chamber, was a great way to curtail meritless shareholder claims in “deal tax” suits. Why, the Chamber asked, would lawmakers “deprive” shareholders of the “opportunity” to rein in frivolous litigation?

4th Circuit makes new law: Remands based on fraud can be undone

By Alison Frankel
November 25, 2014

Do trial judges have to review their rulings in order to vacate them? You might assume so, but in an en banc decision Tuesday, the 4th U.S. Circuit Court of Appeals ruled that federal judges can vacate remand orders that turn out to have been based on misrepresentations – despite the procedural rule prohibiting judges from reconsidering their orders to remand cases to state court.

Does tort system make America safer? Lanier rebuts ‘blame the lawyers’ prof

By Alison Frankel
November 21, 2014

Mark Lanier, one of the most successful trial lawyers of the past quarter century – and also a Texan – isn’t the type to roll over for adversaries.

The Palestinian Authority faces a big terror trial. Will the State Dept. help?

By Alison Frankel
November 20, 2014

Late Wednesday, U.S. District Judge George Daniels of Manhattan ruled that the Palestinian Authority and the Palestine Liberation Organization are not entitled to summary judgment on Anti-Terrorism Act claims by more than 40 U.S. citizens (or their survivors) who were the victims of attacks in and around Jerusalem between 2000 and 2004. Judge Daniels’ decision clears the way for a trial, scheduled to begin on Jan. 12, against the Palestinian Authority and the PLO.

The fraud case Standard & Poor’s doesn’t want you to know about

By Alison Frankel
November 19, 2014

Last week, the Federal Home Loan Bank of Pittsburgh filed a brief opposing summary judgment for the credit rating agency Standard & Poor’s, which the bank has accused of fraud in Pennsylvania state court. The case, which involves FHLB’s investments in supposedly misrepresented mortgage-backed securities, dates back to 2009. The Pittsburgh lender’s doggedness has already pushed JPMorgan Chase into a settlement (on undisclosed terms) last January, after FHLB’s lawyers at Robins Kaplan Miller & Ciresi demanded to see the Justice Department’s draft complaint against JPM. Countrywide and the credit rating agency Moody’s also made deals with FHLB in June to have claims against them dismissed. S&P is the last remaining defendant in the case.

When judges say too much

By Alison Frankel
November 18, 2014

As I reporter, I love when federal judges say provocative things outside of their courtrooms. It’s news if U.S. District Judge Jed Rakoff of Manhattan publishes an article chastising the Justice Department for prosecuting corporations instead of individuals or if his colleague Shira Scheindlin gives interviews about her willingness to stand up to prosecutors. The public benefits when brave judges like U.S. Magistrate Stephen Smith of Houston, who highlighted the government’s secret use of electronic surveillance in a 2012 paper for the Harvard Law and Policy Review, call attention to what they’ve observed from the bench. I also understand that judges, just like ordinary people, want to share (or occasionally overshare) their thoughts in a forum aside from judicial opinions.