Thursday, April 23, 2015
The Eighth Annual Junior Faculty Federal Courts Workshop is happening at the University of California, Irvine School of Law on September 11-12, 2015. If you wish to present a paper, the deadline to submit abstracts is June 19, 2015. Howard Wasserman has posted the details over at PrawfsBlawg.
As we covered earlier, the first annual Civil Procedure Workshop is being held July 16-17 at Seattle University School of Law. You can find more details and registration information in the document linked below:
Wednesday, April 22, 2015
Today the Supreme Court issued its decisions in United States v. Wong and United States v. June. As covered earlier, the cases address whether two time limits contained in the Federal Tort Claims Act are subject to equitable tolling. (Although Wong and June were not formally consolidated, the Court explains in footnote 1 that “we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines.”)
It’s a 5-4 split. Once again, the Justices examine—and disagree about—whether a statutory time limitation is “jurisdictional.” Justice Kagan writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Here’s the opening paragraph (emphasis added):
The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.
Justice Alito writes a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas. He argues that these limitations are jurisdictional and create an “absolute bar” that “is not subject to equitable tolling.”
Monday, April 20, 2015
The movant was defendant Shaquille O’Neal. The plaintiff Jahmel Binion—a Michigan resident—alleged claims for invasion of privacy, intentional infliction of emotional distress, defamation, and general negligence based on posts Shaq had made on Instagram and Twitter that included pictures of Binion. Although the court stated that Shaq’s posts were “highly offensive,” it found after a discussion of Zippo and the “effects test” from Calder v. Jones that jurisdiction in Michigan would not comport with due process.
Here’s the New York Daily News with some background on the incident that gave rise to the lawsuit.
Sunday, April 19, 2015
Shay Lavie has published Are Judges Tied to the Past? Evidence from Jurisdiction Cases in the Hofstra Law Review. Here’s the abstract:
Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case if the trial judge invested a large amount of resources in coming to a decision.
To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this Article finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdictional determination. This correlation is statistically significant and non-trivial in size.
This Article then discusses the normative implications of this phenomenon. The major implication is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.
Wednesday, April 15, 2015
The Sedona Conference has posted a "Commentary on Rule 34 and Rule 45 'Possession, Custody, or Control.'” The commentary suggests uniform principles as to the meaning of "possession, custody, or control" as used in Federal Rules of Civil Procedure 34 and 45.
The commentary can be downloaded without charge here.
Tuesday, April 14, 2015
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).
Thursday, April 9, 2015
In In re Blood Reagents Antitrust Litigation, No. 12-4067 (3d Cir. April 8, 2015), the court vacated the trial court's certification of a class of purchasers of blood reagents, which alleged price-fixing by the two defendants.
In part, the court vacated because the class certification had occurred before the Supreme Court's decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In addition, the court held that if, on a motion for class certification, plaintiffs relied on expert testimony to establish "predominance" under Rule 23(b)(3), then the expert's testimony must satisfy the Daubert standard for admissibility.
On the earlier motion for class certification, the plaintiffs had relied in part on expert testimony to produce their antitrust impact analyses and damages models. The district court held that the expert's testimony "could evolve to become admissible evidence" at trial. The Third Circuit held that "the trial court should have scrutinized the plaintiffs' expert's testimony under Daubert."
The court stated that it was joining the Seventh and Eighth Circuits in holding Daubert applicable on class certification motions.
Tuesday, April 7, 2015
The 21st Annual Clifford Symposium on Tort Law and Social Policy will be held April 16 and 17, 2015 at DePaul University College of Law. The topic this year is "The Supreme Court, Business and Civil Justice." Presenters and discussants include (in order of appearance) David Horton, Anthony Sebok, Katherine Stone, Stephan Landsman, Margaret Blair, Elizabeth Pollman, Gregory Mark, Eric Orts, Thomas Colby, Mark Geistfeld, John Goldberg, Benjamin Zipursky, Thomas Lee, Sandra Sperino, Richard Epstein, Stephen Burbank, Sean Farhang, Richard Marcus, Joanna Schwartz, Elizabeth Thornburg, Margo Schlanger, Elizabeth Burch, Erwin Chemerinsky, Marc Galanter, Jeffrey Rachlinski, and David Franklin.
From the web site:
Recent empirical research suggests that corporate interests do unusually well in the United States Supreme Court. The Court’s decisions concerning business entities do not only affect matters of corporate law and regulation, but also a wide array of civil justice issues. They have enhanced the reach of arbitration as a substitute for court-based adjudication. They have dramatically altered federal civil procedure. They have changed the tort law landscape despite the traditional anchoring of tort principles in state legislation and judicial precedent. These shifts and their implications for the civil justice system will be the focus of this year’s Clifford Symposium on Tort Law and Social Policy.
This event is free and open to the public but you must register to attend by April 13, 2015 at
Friday, April 3, 2015
Boston University Law School
October 2-3, 2015
This annual workshop brings together scholars focused on corporate and securities litigation to present their works-in-progress. The papers may address any aspect of corporate and securities litigation or enforcement, including but not limited to securities class actions, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics or other fields, and traditional doctrinal analysis. Participants will generally be expected to have drafts completed by the fall, although work in a more formative stage may also be included. Each author will provide a brief introduction, but most of the time in each session will be devoted to collective discussion of the paper.
Submission Procedure : If you are interested in participating in the conference, which will be held at Boston University Law School on October 2-3, 2015, please send an abstract or draft of the paper you would like to present to firstname.lastname@example.org no later than May 29, 2015. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by June 30, 2015.
Questions: Any questions concerning the workshop should be directed to the organizers: Professor David Webber (email@example.com), Professor Jessica Erickson (firstname.lastname@example.org) and Professor Verity Winship (email@example.com).
Just received the annual report of the Oklahoma Bar Association on attorney discipline in calendar year 2014. (86 Okla. B.J. No. 8, p. 624.) All 16 attorneys publicly disciplined in 2014 in Oklahoma were men (based upon their first names). Of three other attorneys charged with disciplinary violations who were exonerated, two were women.
Although Oklahoma is a relatively small and perhaps unrepresentative state, the outsized proportion of male disciplined attorneys is consistent with my study of all 3,500 publicly-disciplined US attorneys in the year 2000. My co-author Kevin Simmons and I found that although male and female attorneys comprised 76.4% and 23.6% of all licensed attorneys in the US in 2000, 88.3% of the disciplined attorneys were male and 11.7% were female.
Thursday, April 2, 2015
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).
Wednesday, April 1, 2015
Yesterday the Supreme Court decided Armstrong v. Exceptional Child Center, ruling by a 5-4 vote that Medicaid providers could not sue state officials for failing to comply with § 30(A) of the Medicaid Act (also known as the “equal access” provision). Justice Scalia writes the majority opinion, joined in full by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer joins part of Scalia’s opinion to provide the fifth vote, but also authors a separate concurring opinion. Justice Sotomayor writes the dissenting opinion, joined by Justices Kennedy, Ginsburg, and Kagan.
Tuesday, March 31, 2015
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.
This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.
My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.
[Cross-posted at PrawfsBlawg]
Thursday, March 26, 2015
Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract:
In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.
Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.
Tuesday, March 24, 2015
Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”
Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”
What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can. Quoting a number of earlier decisions (citations omitted), Justice Alito writes:
“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”
The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”
Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:
The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.
[Cross-posted at PrawfsBlawg]
Monday, March 23, 2015
The Advisory Committee on Civil Rules has released the 640-page agenda for its April 9-10, 2015 meeting.
The agenda includes many items that are of interest. The following is far from an exhaustive list:
- In the Draft Minutes for the Committee's October 30, 2014 meeting (p. 39):
"Judge Campbell reported that the Forms Working Group in the Administrative Office has already begun deliberating what response they might make if the proposed abrogation of Rule 84 and the Rule 84 Forms is approved by the Supreme Court and Congress. They have begun to think about new forms that might be created. This Committee will keep in touch with the Working Group, perhaps by means as formal as appointing a liaison member."
- The Report of the Rule 23 Subcommittee considers the following topics. Some contain "sketches" of possible amendments to the rule on class actions (p. 243):
- Settlement approval criteria (p. 246)
- Settlement class certification (p. 253)
- Cy pres treatment (p. 263)
- Dealing With Objectors (p. 272)
- Rule 68 Offers and Mootness (p. 277)
- Issue Classes (p. 281)
- Notice (p. 284)
- The Discovery Subcommittee reports on "Requester Pays Issues." (p. 333)
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at PrawfsBlawg]
Friday, March 20, 2015
Katherine Macfarlane (Louisiana State University) has published in the Stanford Journal of Civil Rights and Civil Liberties (Vol. 11, 2015) an article entitled A New Approach to Local Rules.
The Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed.
Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.
Wednesday, March 18, 2015
Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)
Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”
Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”
I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”