Comments for Civil Justice Blog http://www.civiljusticeblog.org Current issues in civil justice in the UK and around the World Fri, 09 Oct 2009 11:05:17 +0100 http://wordpress.org/?v=2.8.4 hourly 1 Comment on How the twittering stops…? by RM http://www.civiljusticeblog.org/?p=176&cpage=1#comment-85 RM Fri, 09 Oct 2009 11:05:17 +0000 http://www.civiljusticeblog.org/?p=176#comment-85 'Positively' if words equate to units! ‘Positively’ if words equate to units!

]]> Comment on How the twittering stops…? by Philip Hesketh http://www.civiljusticeblog.org/?p=176&cpage=1#comment-84 Philip Hesketh Fri, 09 Oct 2009 10:48:53 +0000 http://www.civiljusticeblog.org/?p=176#comment-84 140 characters per tweet could affect billing. 140 characters per tweet could affect billing.

]]> Comment on Collective Actions by Richard Moorhead http://www.civiljusticeblog.org/?p=169&cpage=1#comment-61 Richard Moorhead Fri, 25 Sep 2009 13:46:25 +0000 http://www.civiljusticeblog.org/?p=169#comment-61 Steve, thanks for posting. What do you mean by negative value class actions: ones where the costs of claiming are greater than the compensation in issue? Would be interesting to hear some expansion of your reasoning. Best wishes Richard Steve, thanks for posting. What do you mean by negative value class actions: ones where the costs of claiming are greater than the compensation in issue? Would be interesting to hear some expansion of your reasoning.

Best wishes

Richard

]]> Comment on Collective Actions by stephen b. burbank http://www.civiljusticeblog.org/?p=169&cpage=1#comment-58 stephen b. burbank Wed, 23 Sep 2009 18:45:48 +0000 http://www.civiljusticeblog.org/?p=169#comment-58 If you will permit comment from the U.S., I have long believed and argued that the introduction of the modern small claims (negative value) class action by means of a transsubstantive Federal Rule of Civil Procedure was a mistake. It has seemed to me that the risk of inefficient overenforcement is too great. That said, I favor having a presumptively applicable set of rules to govern the process (class certification, notice, opt-out if relevant, etc.) in those areas where class litigation is permitted. There is a very interesting case before the United States Supreme Court -- due to be argued in November -- that may cast a little light on these issues (although, given the Court's recent track record in procedure cases, it could just as easily turn out the lights) -- Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., No. 08-1008. The question is whether a federal district (first instance) court, exercising subject matter jurisdiction on the basis of diversity of citizenship, is bound to apply a provision of New York law that prohibits class actions in suits to collect statutory penalties. I hope and expect that the Court will affirm the decisions below requiring application of the state law and that its opinion, dismissing simplistice "procedure" and "substance" labels, will acknowledge the evident goal of the N.Y. legislature to prevent over-enforcement. Steve Burbank University of Pennsylvania If you will permit comment from the U.S., I have long believed and argued that the introduction of the modern small claims (negative value) class action by means of a transsubstantive Federal Rule of Civil Procedure was a mistake. It has seemed to me that the risk of inefficient overenforcement is too great. That said, I favor having a presumptively applicable set of rules to govern the process (class certification, notice, opt-out if relevant, etc.) in those areas where class litigation is permitted. There is a very interesting case before the United States Supreme Court — due to be argued in November — that may cast a little light on these issues (although, given the Court’s recent track record in procedure cases, it could just as easily turn out the lights) — Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., No. 08-1008. The question is whether a federal district (first instance) court, exercising subject matter jurisdiction on the basis of diversity of citizenship, is bound to apply a provision of New York law that prohibits class actions in suits to collect statutory penalties. I hope and expect that the Court will affirm the decisions below requiring application of the state law and that its opinion, dismissing simplistice “procedure” and “substance” labels, will acknowledge the evident goal of the N.Y. legislature to prevent over-enforcement.

Steve Burbank
University of Pennsylvania

]]> Comment on ADR by Richard Moorhead http://www.civiljusticeblog.org/?p=104&cpage=1#comment-5 Richard Moorhead Thu, 30 Jul 2009 10:00:37 +0000 http://civiljustice.wordpress.com/?p=104#comment-5 Hello Phillip thanks for posting and apologies for the delay (I've been away from the office for an extended period and am catching up). I would have thought the main research relied on was Hazel Genn's Twisting Arms report. My reading of Hazel's report is that compulsion into ADR is counter productive (in costs and other terms) and that pushing parties too hard towards ADR processes may also increase costs especially for lower value cases (which mainly settle anyway). I don't think Jackson's report is anti-ADR, indeed as you know I am sure, he does want suggestions on how to promote it to less sophisticated clients. Hello Phillip thanks for posting and apologies for the delay (I’ve been away from the office for an extended period and am catching up). I would have thought the main research relied on was Hazel Genn’s Twisting Arms report. My reading of Hazel’s report is that compulsion into ADR is counter productive (in costs and other terms) and that pushing parties too hard towards ADR processes may also increase costs especially for lower value cases (which mainly settle anyway).

I don’t think Jackson’s report is anti-ADR, indeed as you know I am sure, he does want suggestions on how to promote it to less sophisticated clients.

]]> Comment on ADR by Philip Hesketh http://www.civiljusticeblog.org/?p=104&cpage=1#comment-2 Philip Hesketh Fri, 24 Jul 2009 08:42:28 +0000 http://civiljustice.wordpress.com/?p=104#comment-2 I'm not sure what evidence Jackson LJ relied on to reach his view - it may be in the report. What about cases where one party unreasonably refuses mediation? Or the lawyer is ignorant of or biased against the mediation procedure? How is consumer education to be delivered? What support is the government going to give to mediation providers who are already attempting to engage with public in this process of education? I’m not sure what evidence Jackson LJ relied on to reach his view – it may be in the report. What about cases where one party unreasonably refuses mediation? Or the lawyer is ignorant of or biased against the mediation procedure?
How is consumer education to be delivered? What support is the government going to give to mediation providers who are already attempting to engage with public in this process of education?

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