Copyright (c) 2011 All rights reserved. http://works.bepress.com/m_berry Recent documents in M. Anderson Berry en-us Sun, 13 Feb 2011 01:31:14 PST 3600 http://works.bepress.com/m_berry/13 http://works.bepress.com/m_berry/13 Fri, 11 Feb 2011 14:02:35 PST Because parties do not always comply with arbitration awards, it may be necessary for the prevailing party to seek enforcement of the award in a court of law—typically in a jurisdiction where the losing party has sufficient assets. This article focuses on whether the prevailing party can recover attorneys’ fees accrued during the enforcement procedure in U.S. district court under the Federal Arbitration Act (FAA). M. Anderson Berry Domestic and International Arbitration Clauses International Law Federal Rules of Civil Procedure http://works.bepress.com/m_berry/12 http://works.bepress.com/m_berry/12 Tue, 04 Jan 2011 07:59:32 PST Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word. In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of these changes, but did comment that because of the poverty of drafting history modern commentators have been forced to concentrate on the text of the ATS itself. Commentators have remarked on the innovative use of the word tort and the mixture of expansive and restrictive terms, but despite considerable scholarly attention, Justice Souter admitted that it is fair to say that a consensus understanding of what Congress intended has proven elusive. When Justice Souter pointed out that the first House made hardly any changes when it modified the Senate’s draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction of all causes where a FOREIGNER sues for a tort only in violation of the law of nations. The house retained that sentence, except for changing “foreigner” to ALIEN. The word “alien” did not appear in this part of the bill until the House put it there. This was not mere happenstance. In 1789 relevant legislators and writers acknowledged a difference between the terms “alien” and “foreigner.” This Article details the changes made from Oliver Ellsworth’s initial handwritten draft of the first judiciary bill to the final product: the Judiciary Act of 1789. Defining “alien” and “foreigner” and related words using legal, international, and general lexicons available to the First Federal Congress, this Article details an understanding of the terms as used in relevant historical writings, and introduces the ramifications and possible reasons for the change from “foreigner” to “alien.” I conclude that the Senate’s original intent was to make the ATS available to all non-citizens born outside the United States, but because Congress narrowed the scope in the Judiciary Act of 1789 and later relevant legislation, the ATS is only available to plaintiffs who are foreign-born residents of the United States. REPRINT: Originally published as M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, 27 Berkeley J. Int'l L. 316 (2009). M. Anderson Berry Legal History International Law Constitutional Law Human Rights Law Alien Tort Statute http://works.bepress.com/m_berry/11 http://works.bepress.com/m_berry/11 Wed, 29 Dec 2010 08:43:24 PST On Dec. 1, 2010, changes to Rule 26 of the Federal Rules of Civil Procedure (FRCP) extended work-product protection to discovery of draft reports by testifying experts and, with three exceptions, to communications between those experts and retaining attorneys. The amendments also require attorneys relying on experts who will provide testimony - but who are not required to provide a full expert report - to disclose the subject matter of the planned testimony and summarize the facts and opinions that the expert expects to offer.What is not clear is whether this "attorney-expert work-product doctrine" applies to draft reports and communications made before Dec. 1, 2010 in ongoing cases. For example, if you've been dealing with a testifying expert since July in a pending case, and you continue to communicate and receive draft reports through February, are these protected? Or is it only protected if made after Dec. 1? And are drafts completed before Dec. 1 still fair game? Read this to find out... M. Anderson Berry Federal Rules of Civil Procedure http://works.bepress.com/m_berry/9 http://works.bepress.com/m_berry/9 Thu, 21 Jan 2010 13:13:12 PST It is now routine for litigators to conduct internet research to work up a case. Indeed, for many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites like Twitter, MySpace and Facebook, and the party's personal websites. During the life of any case, there will likely be valuable information obtained from the internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a screen shot of the web page, which was either downloaded as a .pdf or printed directly from the website. The process is like taking a photograph of the image as it appears on the monitor. In general, this captures not only the look, but also the download date and the URL. If proper steps are not taken to admit the evidence, the value of this information may be lost. M. Anderson Berry Evidence Authentication - Federal Court http://works.bepress.com/m_berry/8 http://works.bepress.com/m_berry/8 Mon, 11 Jan 2010 10:17:42 PST Leah D. Harhay, Managing Editor of the World Arbitration & Mediation Review, provided key insights as an expert on this subject, having co-authored a forthcoming article on the topic with Professor David D. Caron of U.C. Berkeley Law School.Due to an accident of legislative history, for the past decade California law has barred foreign attorneys from participating in international arbitrations located in the state, and erected significant barriers to such participation by attorneys from United States jurisdictions outside California. A previous proposal that would lower these barriers—endorsed by the California State Bar—failed to gain sufficient political momentum to rouse the attention of the Legislature. In 2011, however, the current law allowing out-of-state attorneys to practice in arbitrations (both domestic and international) will expire, presenting a unique opportunity to call the Legislature to action. With the Legislature focused on renewal of that law, and the State looking for new sources of revenue, now is the ideal time to enact overdue legislation that would encourage the establishment of California as a world center for international arbitration. Yuval Miller Domestic and International Arbitration Agreements http://works.bepress.com/m_berry/7 http://works.bepress.com/m_berry/7 Tue, 17 Nov 2009 15:46:28 PST For many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites and the party’s websites. And during the life of the case, there will likely be other valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a “screen shot” of the webpage, which was either downloaded as a .pdf or printed directly from the website. If proper steps are not taken to admit the evidence, the value of this information may be lost. As with all evidence, the proponent must be prepared to establish that the evidence is relevant, authentic, and not subject to exclusion under the hearsay or best evidence rules. This article focuses on the second evidentiary hurdle: authenticity. Although the burden of authenticating a document is usually quite low, authenticating a screen shot of a website presents an additional challenge, as courts generally view such information with suspicion. As one federal district judge noted, “Anyone can put anything on the Internet. . . . [The Internet is] one large catalyst for rumor, innuendo, and misinformation." It is “voodoo information.” M. Anderson Berry Evidence Authentication - Federal Court http://works.bepress.com/m_berry/6 http://works.bepress.com/m_berry/6 Fri, 23 Oct 2009 11:21:16 PDT Parties agree to arbitrate disputes because, among other things, arbitration can be quicker and more flexible than judicial proceedings. This leads to advantages that all parties desire: decreased costs and better predictability of outcome. However, problems arise in domestic and international arbitrations that may defeat these advantages. As this article explains, well thought‐out and effective arbitration provisions can significantly reduce the incidence of these problems. While primarily relying on specific examples from the U.S. domestic sphere, this article also applies to the international sphere unless otherwise indicated.The core assertion of this article is this: instead of cutting and pasting boiler‐plate arbitration clauses into contracts, one should identify in advance as many details as possible, including, inter alia: (A) the scope of the arbitral agreement; (B) decisions as to substantive and procedural choice‐of‐law; (C) the chosen institutional rules and the administering institution; (D) the location of the arbitration and the venue for confirmation of the award; (E) whether significant access to facts will be needed to establish claims; (F) available remedies, fees and expenses; and (G) limitations of grounds for vacatur.Our goal is to aid the practitioner in identifying and addressing as many questions and issues as possible during the process of drafting an arbitration clause, so as to avoid costly confusion and conflict later. Our focus is therefore on the questions, more than the answers. Various rules and examples are offered to help refine the drafter’s inquiry and define the possible universe of drafting choices, but this discussion is far from exhaustive. Practitioners must always keep in mind the opportunities for and limitations on their drafting as defined by the dispute, the parties and the specific rules of the administering institution. Pamela Fulmer Domestic and International Arbitration Clauses International Law Domestic and International Arbitration Agreements http://works.bepress.com/m_berry/5 http://works.bepress.com/m_berry/5 Tue, 29 Apr 2008 10:35:56 PDT Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word. In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of these changes, but did comment that because of the poverty of drafting history modern commentators have been forced to concentrate on the text of the ATS itself. Commentators have remarked on the innovative use of the word tort and the mixture of expansive and restrictive terms, but despite considerable scholarly attention, Justice Souter admitted that it is fair to say that a consensus understanding of what Congress intended has proven elusive. When Justice Souter pointed out that the first House made hardly any changes when it modified the Senate’s draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction of all causes where a FOREIGNER sues for a tort only in violation of the law of nations. The house retained that sentence, except for changing “foreigner” to ALIEN. The word “alien” did not appear in this part of the bill until the House put it there. This was not mere happenstance. In 1789 relevant legislators and writers acknowledged a difference between the terms “alien” and “foreigner.” This Article details the changes made from Oliver Ellsworth’s initial handwritten draft of the first judiciary bill to the final product: the Judiciary Act of 1789. Defining “alien” and “foreigner” and related words using legal, international, and general lexicons available to the First Federal Congress, this Article details an understanding of the terms as used in relevant historical writings, and introduces the ramifications and possible reasons for the change from “foreigner” to “alien.” I conclude that the Senate’s original intent was to make the ATS available to all non-citizens born outside the United States, but because Congress narrowed the scope in the Judiciary Act of 1789 and later relevant legislation, the ATS is only available to plaintiffs who are foreign-born residents of the United States. M. Anderson Berry Legal History