Thursday, June 22, 2017
I have posted my newest article, "Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion" to SSRN.
In litigation days of old, American courts jealously guarded their procedural powers through the doctrine of “ouster” and blocked most litigant efforts to create their own private procedural landscape. By the end of the Twentieth Century, the ouster doctrine was gone. Litigants now use an increasingly sophisticated set of contractual agreements that alter or displace standard procedural rules. But this is not to say that judicial power has been displaced. In fact, the downfall of traditional ouster doctrine was accompanied by a rise in the scope and use of judicial discretion in procedural matters, culminating in the emergence of the “managerial judge” with administrative powers and responsibilities that would have seemed entirely foreign to a modern judge’s earlier counterpart.
This Article examines the link between the scope of judicial discretion and the acceptance or even endorsement and encouragement of private procedural ordering (the use of private agreements to alter or avoid procedural rules). Examples from civil procedure demonstrate the varying dynamics of the relationship between judicial discretion and private procedural ordering, from the uneasy compatibility found in the rules of discovery to the outright clash of values in the enforcement of forum selection clauses.
The relationship between judicial discretion and private procedural ordering is not coincidental. Rather, it reveals that the civil litigation landscape is one in which litigants are “co-managers” of litigation alongside the increasingly “managerial” judges. More controversially, this relationship also shows that litigants are also “co-interpreters” of procedural rules alongside judges, sharing the authority to shape the contours of the meaning, scope, and application of many procedural rules.
Now on the Courts Law section of JOTWELL is Nancy Leong’s essay, On Gender Disparity and Dialogue. Nancy review’s Jennifer Mika’s recent article, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017).
Tuesday, June 20, 2017
Yesterday the Supreme Court issued its decision in Ziglar v. Abbasi, covered earlier here and here. By a 4-2 vote, the Court reversed the Second Circuit and ordered the dismissal of most of the plaintiffs’ claims that they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. Justice Kennedy wrote the Opinion of the Court, joined (though not in its entirety) by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer wrote a dissenting opinion, joined by Justice Ginsburg. Justices Sotomayor, Kagan, and Gorsuch took no part (Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch was not on the Court at the time of oral argument). Although the cert. petitions presented three issues—Bivens, qualified immunity, and pleading standards—the bulk of the majority’s reasoning and analysis focused on Bivens.
Here are the concluding paragraphs from Justice Kennedy’s opinion:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
For more detailed coverage, check out:
Monday, June 19, 2017
Today the Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court, covered earlier here and here. By an 8-1 vote, the Court reverses the California Supreme Court’s conclusion that asserting personal jurisdiction over Bristol-Myers Squibb (BMS) was constitutional. Justice Alito writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan and Gorsuch. Justice Sotomayor is the lone dissenter.
The case involves a “group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States”—who sued BMS in California state court alleging injuries arising from BMS’s drug Plavix. The issue was whether personal jurisdiction was proper over the claims by plaintiffs who were not residents of California. The California Supreme Court concluded that although BMS was not subject to general jurisdiction in California, the nonresidents’ claims were covered by specific jurisdiction.
Monday, June 12, 2017
Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”
Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:
We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.
A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”
Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.
Today the U.S. Supreme Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, limited to the following question:
Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents— violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, June 7, 2017
This week on the Courts Law section of JOTWELL is Marin Levy’s essay, Rethinking Judicial Independence. Marin review’s Tara Grove’s recent article, The Origins (and Fragility) of Judicial Independence, which is forthcoming in the Vanderbilt Law Review.
Tuesday, June 6, 2017
Yesterday the Supreme Court issued a unanimous decision in Town of Chester v. Laroe Estates, Inc., covered earlier here and here. Justice Alito’s opinion for the Court decides the case on very narrow grounds—here’s how it begins:
Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief.
Friday, June 2, 2017
Nease v. Ford Motor Co., distributed for next week’s Supreme Court conference, presents some interesting questions regarding the procedure surrounding Daubert motions:
1) When a district court grants or denies a motion in limine concerning expert testimony, need it state only its ultimate ruling on admissibility (as permitted in the First and Second Circuits), or must it also set forth explicit findings of fact regarding each aspect of the expert testimony rules cited in the motion (as required by most other circuits, including the Fourth Circuit below)?
2) When a federal appellate court concludes that a district court erred procedurally by admitting or excluding expert testimony in a jury trial without explicit Daubert factfinding, is the appropriate remedy for such procedural error: (a) a remand so that the omitted findings can be made by the district court (the rule applied in at least two circuits); (b) a remand for a mandatory new trial (the rule applied in the Ninth and Tenth Circuits); or (c) de novo decision of the admissibility issue on appeal (the rule applied by the Fourth Circuit below and by the Seventh Circuit)?
Here is the full cert. petition:
And here is the Fourth Circuit’s decision below.
Tuesday, May 30, 2017
Today the Supreme Court issued its decision in BNSF Railway Co. v. Tyrrell, which was argued just over a month ago (and covered earlier here and here). Justice Ginsburg writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. (In fact, this is the first merits opinion in which Justice Gorsuch participated.) Justice Sotomayor concurs in part and dissents in part.
The Court addresses two issues: one statutory and one constitutional. The first is the effect of § 56 of the Federal Employers’ Liability Act (FELA), which provides:
“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.”
The Montana Supreme Court reasoned that these two sentences combined to authorize personal jurisdiction in any state where the defendant was “doing business.” The Supreme Court unanimously rejects this theory. Justice Ginsburg writes that § 56 “does not address personal jurisdiction.” The first sentence “is a venue prescription governing proper locations for FELA suits filed in federal court.” And the second sentence “simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too.” As to this part of the majority opinion, Justice Sotomayor concurs.
Had this first issue come out the other way, the constitutional analysis might have been more friendly toward allowing personal jurisdiction—although there are some interesting wrinkles on that point that the Court, having rejected the plaintiff’s statutory argument, did not need to address. Without federal statutory authorization, the constitutionality of jurisdiction hinges on the more commonplace inquiry into whether jurisdiction over BNSF would comport with the Fourteenth Amendment’s Due Process Clause. And on this issue, the case follows in the line of the Court’s Goodyear (2011) and Daimler (2014) decisions (which Justice Ginsburg also authored), with a similar end result: due process forbids personal jurisdiction.
Wednesday, May 24, 2017
This week on the Courts Law section of JOTWELL is Suja Thomas’s essay, What Judges Can Do About Implicit Bias. Suja reviews Andrew Wistrich & Jeffrey Rachlinski’s contribution to a new American Bar Association book entitled Ensuring Justice: Reducing Bias (Sarah Redfield ed., forthcoming 2017). Their chapter is Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It.
Monday, May 22, 2017
Today the Supreme Court issued unanimous decisions in two cases we’ve been covering:
- Water Splash, Inc. v. Menon (service by mail under the Hague Convention)
- TC Heartland LLC v. Kraft Foods Group Brands LLC (venue in patent cases)
Thursday, May 18, 2017
This week the Supreme Court issued its decision in Kindred Nursing Centers Limited Partnership v. Clark, a case we covered earlier here. The vote was 7-1, with Justice Kagan writing the majority opinion, Justice Thomas dissenting based on his view that the Federal Arbitration Act does not apply to proceedings in state court, and Justice Gorsuch (who joined the Court after oral argument occurred) taking no part.
Justice Kagan’s opinion begins:
The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements “on equal footing with all other contracts.” DIRECTV, Inc. v. Imburgia, 577 U. S. __, __ (2015) (slip op., at 6) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006)); see 9 U. S. C. §2. In the decision below, the Kentucky Supreme Court declined to give effect to two arbitration agreements executed by individuals holding “powers of attorney”—that is, authorizations to act on behalf of others. According to the court, a general grant of power (even if seemingly comprehensive) does not permit a legal representative to enter into an arbitration agreement for someone else; to form such a contract, the representative must possess specific authority to “waive his principal’s fundamental constitutional rights to access the courts [and] to trial by jury.” Extendicare Homes, Inc. v. Whisman, 478 S. W. 3d 306, 327 (2015). Because that rule singles out arbitration agreements for disfavored treatment, we hold that it violates the FAA.
Friday, May 12, 2017
Lou reviews a recent article by Steve Subrin and Thom Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).
Thursday, May 11, 2017
Justin Murray has published A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017). Here’s the abstract:
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.
The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.
I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.
Brandon Garrett has published a response, Patterns of Error, 130 Harv. L. Rev. F. 287 (2017).
Wednesday, May 3, 2017
Here is the announcement:
The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the new Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer. The Award will recognize a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts. Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools and have not served as an officer of the Federal Courts Section in the two previous years. It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years. Nominations (and questions about the award) should be directed to Prof. Curtis Bradley at Duke University School of Law (email@example.com). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2017. Nominations will be reviewed by a prize committee consisting of Professors Curtis Bradley (Duke), John Manning (Harvard), Judith Resnik (Yale), Amanda Tyler (Berkeley), and Ernest Young (Duke). If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2018 AALS Annual Meeting in San Diego, California.
[Update: Nominees may include emeritus professors who previously were members of the full-time faculty of an AALS member or affiliate school.]
Tuesday, May 2, 2017
Yesterday the Supreme Court issued a unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., covered earlier here. The case involves the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), which provides that foreign states are not immune from jurisdiction in U.S. courts when, among other things, “rights in property taken in violation of international law are in issue.”
Justice Breyer’s opinion concludes that it is not sufficient to “make a ‘nonfrivolous’ argument that the case falls within the scope of the exception.”
Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.
Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493–494 (1983).
Part III of the opinion contrasts the FSIA with 28 U.S.C. § 1331, finding that Bell v. Hood’s approach to the existence of a federal question does not apply to the FSIA’s expropriation exception.
Justice Gorsuch took no part in the consideration or decision of the case.
Monday, May 1, 2017
Today the Supreme Court granted certiorari in Patchak v. Zinke, which will address the separation-of-powers principles stemming from United States v. Klein. The grant is limited to the first question presented:
Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.