Thursday, December 8, 2016

Effron on Gardner on Forum Non Conveniens

Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).

 

 

December 8, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Institute for Law Teaching and Learning Summer 2017 Conference

Below is a call for presentation proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference (University of Arkansas at Little Rock William H. Bowen School of Law, July 7-8, 2017). The deadline for submissions is Feb. 1, 2017.

Download CFP Summer 2017 Bowen Conference

 

 

 

December 8, 2016 in Conferences/Symposia | Permalink | Comments (0)

Friday, December 2, 2016

SCOTUS Cert Grant on Service by Mail Under the Hague Convention: Water Splash v. Menon

Today the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon. Here is the question presented:

In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:

Does the Hague Service Convention authorize service of process by mail?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 2, 2016 in International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, December 1, 2016

December 1, 2016: FRCP Amendments Now In Effect

Back in April the U.S. Supreme Court adopted amendments to Federal Rules of Civil Procedure 4, 6 ,and 82. Today is the effective date of those amendments.

More details on the amendments are here.

 

 

December 1, 2016 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, November 30, 2016

SCOTUS Decision on Issue Preclusion

Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):

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November 30, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, November 29, 2016

This Week's NYU Symposium on Class Actions

The NYU Law Review and the Center on Civil Justice are hosting a symposium entitled “Rule 23 @ 50” this Friday and Saturday. From the announcement:

This is a wonderful time to reflect on Rule 23 – what it was meant to do; whether it has met its promise; if not, why not, and what can be done to remedy the situation; and what is in store for the Rule going forward.

When: December 2–3, 2016.

Where: Vanderbilt Hall, 40 Washington Square South.

Panels will explore the history of the rule, its use in civil rights and mass tort cases, what the rule was meant to accomplish, whether it has done so, and if not, whether there are ways to fix the situation. There will be an oral history interview with Professor Arthur Miller, who was there at the creation of the rule. The conference will conclude with a judges’ roundtable moderated by Professor Miller.

Here is a more detailed program, and here’s where you can RSVP.

 

 

 

November 29, 2016 in Class Actions, Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, November 28, 2016

Walsh on Bray on the National Injunction

Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.

 

 

 

November 28, 2016 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, November 18, 2016

Interesting SCOTUS Dismissal: Don’t Change Issues After Cert Grant

Yesterday the U.S. Supreme Court issued a summary disposition in two antitrust cases—Visa v. Osborn and Visa v. Stoumbos—for which it had earlier granted certiorari. Here’s the text of yesterday’s ruling:

These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.

 

 

 

 

 

 

November 18, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, November 14, 2016

Cheng on Legal Publication Bias

Ed Cheng has posted on SSRN a draft of his article, Detection and Correction of Legal Publication Bias. Here’s the abstract:

Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.

 

 

 

 

November 14, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 10, 2016

Grossi on Klonoff’s Introduction to U.S. Law

The Courts Law section of JOTWELL now features Simona Grossi’s essay, Introducing U.S. Law. Simona reviews Bob Klonoff’s new book Introduction to the Study of U.S. Law (West Academic 2016).

 

 

 

November 10, 2016 in Books, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, November 8, 2016

Today’s SCOTUS Oral Argument in Bank of America v. Miami

Today the Supreme Court hears oral argument in Bank of America v. Miami, which involves standing to sue under the Fair Housing Act. Here are the questions presented:

  1. By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
  1. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?

You can find links to all of the briefing at SCOTUSblog.

[Update: Here is the oral argument transcript.]

 

 

 

November 8, 2016 in Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Monday, November 7, 2016

SCOTUS Cert Grant on Preemption: Coventry Health Care v. Nevils

On Friday, the Supreme Court granted certiorari in Coventry Health Care of Missouri, Inc. v. Nevils, which presents the following questions:

  1. Whether FEHBA preempts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts.
  2. Whether FEHBA’s express-preemption provision, 5 U.S.C. § 8902(m)(1), violates the Supremacy Clause.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

November 7, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, November 1, 2016

Public Hearing on Proposed FRCP Amendments: Thursday (11/3) in Washington, D.C.

As covered earlier, the Standing Committee has published proposed amendments to the Federal Rules of Civil Procedure (along with proposed amendments to the Appellate, Bankruptcy & Criminal Rules). The proposed amendments to Rule 23 (which deal principally with class action settlements) have received much of the attention, but the proposals also include changes to Rules 5, 62, and 65.1.

The first public hearing on the proposed civil rules amendments takes place this Thursday, November 3, in Washington, D.C. The public comment period runs until February 15, 2017.

Here are the U.S. Courts website’s general links for published proposed amendments and rules committee hearings

 

 

 

 

November 1, 2016 in Class Actions, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, October 31, 2016

SCOTUS Cert Grant on Arbitration: Kindred Nursing Centers v. Clark

On Friday, the Supreme Court granted certiorari in Kindred Nursing Centers Limited Partnership v. Clark, which presents the question:

"Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement."

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

October 31, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, October 28, 2016

Bone on Statistical Adjudication & Tyson Foods v. Bouaphakeo

Bob Bone has posted on SSRN a draft of his article Tyson Foods and the Future of Statistical Adjudication, which will be published in the North Carolina Law Review. Here’s the abstract:

Statistical adjudication, the practice of using sampling and other statistical techniques to adjudicate large case aggregations, is highly controversial today. In all its forms, statistical adjudication decides cases on the basis of statistical extrapolation rather than case-specific facts. For example, a court adjudicating a large class action might try a random sample of cases, average the trial verdicts, and give the average to all the other cases in the aggregation. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court rejected a sampling proposal as inconsistent with the Rules Enabling Act, calling it “Trial by Formula.” In the wake of this decision, at least one commentator declared the death of statistical adjudication.

In an important decision last term, Tyson Foods, Inc. v. Bouaphakeo, the Court changed course and breathed new life into statistical adjudication. It upheld the use of sampling to establish liability and damages in a Fair Labor Standards Act case and indicated that the procedure might be available in other cases as well. The Court’s opinion is far from clear, however, and offers little guidance to lower court judges trying to determine when and how to use the procedure in future cases.

This Article explores the impact of Tyson Foods on the future of statistical adjudication. Part I defines statistical adjudication and distinguishes it from statistical evidence. Part II shows that Tyson Foods is a case of statistical adjudication, not statistical evidence. Part III takes a closer look at the Court’s opinion in an effort to tease out factors and principles to guide future use. Part IV explores reasons for the vague discomfort with the procedure, reasons that seem to be tied to nagging doubts about the legitimacy of the procedure. Critics worry that statistical adjudication is too strange a fit with adjudication, too substantive to be legitimately implemented as procedure, and too mechanical to count as a proper form of adjudicative reasoning. Part IV argues that statistical adjudication is not as strange as it might seem, that its outcome effects do not make it too substantive, and that while it substitutes a mechanical decision algorithm for the usual reasoning process, it does so in a way that can be justified as legitimate. It is time that we recognize statistical adjudication for what it is: a useful procedural tool that, when carefully designed and selectively deployed, is capable of adjudicating large case aggregations fairly and efficiently.

 

 

 

 

October 28, 2016 in Class Actions, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, October 27, 2016

Delaney on Avoidance

Erin Delaney has posted on SSRN her article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016). Here’s the abstract:

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of — or the evolution of popular societal consensus around — a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.

 

 

 

 

October 27, 2016 in Federal Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Tuesday, October 25, 2016

Call for Papers: The Ninth Annual Junior Faculty Federal Courts Workshop

Here’s an announcement with the dates and details for the Ninth Annual Junior Faculty Federal Courts Workshop:

Emory University School of Law School will host the Ninth Annual Junior Faculty Federal Courts Workshop on March 31-April 1, 2017. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2017 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.   There is no registration fee. The conference will begin with a dinner on Friday March 31; panels will take place on Saturday, April 1. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as commentator while leading a group discussion on the papers. Scheduled commentators include Heather Elliot, Richard Freer, Jonathan Nash, and James Pfander.

Emory Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to federalcourtsworkshop2017@gmail.com by November 1, 2016. Papers will be selected by a committee of past participants, and presenters will be notified by early January. Those planning to attend must register by February 20, 2017.

(H/T: Fred Smith)

 

 

 

October 25, 2016 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Monday, October 24, 2016

Vladeck on Thomas on the Missing American Jury

Today on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing in the Jury. Steve reviews Suja Thomas’s recent book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016).

 

 

 

 

October 24, 2016 in Books, Recent Scholarship, Weblogs | Permalink | Comments (0)

Eichensehr on Foreign Governments as SCOTUS Amici

Kristen Eichensehr has a post up at SCOTUSblog discussing her recent article Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289 (2016). Here’s the article abstract:

This Article presents the first systematic study of foreign sovereign amicus briefs in the Supreme Court. Based on an analysis of the briefing, oral arguments, and opinions in every Supreme Court merits case involving a foreign sovereign amicus since 1978, this Article argues that foreign sovereigns do and should play an important role in shaping foreign relations law. 

The Article begins with an empirical investigation of which sovereigns file, the types of cases in which they file, and the nature of the arguments they make. To a surprising extent, the Court cites foreign sovereign briefs, discusses them at argument, and even grants oral argument time to foreign sovereign amici — all despite the widespread perception that the Court is ambivalent or even hostile to foreign and international law. 

The Article then situates the Supreme Court’s treatment of foreign sovereign amici within a larger story about how the Court approaches foreign relations questions. Although scholars have attempted to systematize and explain the deference the Court gives to the U.S. government in foreign relations cases, they have largely ignored the role that foreign sovereign amici play in the very same disputes. Accounting for the role of foreign sovereign amici challenges existing scholarly accounts of how and why the Court defers to the U.S. government on foreign relations issues. 

The Article argues that the reasons underlying the Court’s deference to the U.S. government — the executive’s expertise, status as a lawmaker, and exercise of control over relevant policies — often apply to foreign sovereigns as well. This overlap in justifications for deference supports treating foreign sovereign amici similarly to the U.S. government in cases involving “international facts,” treaty interpretation, and customary international law. In cases involving foreign law, the justifications for deference suggest that foreign sovereign amici should receive more deference than the U.S. government. 

In sum, attention to foreign sovereign amici sheds light on executive-to-judicial transnational networks and provides a more nuanced picture of the competing influences on the Court’s foreign relations jurisprudence.

 

 

 

October 24, 2016 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Sunday, October 23, 2016

Workshop at FIU: Sant'Ambrogio on Inside the Agency Class Action

On October 25, Michael Sant'Ambrogio will be presenting Inside the Agency Class Action (covered earlier here) at Florida International University.

(H/T Howard Wasserman)

 

 

 

 

 

October 23, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)