Friday, January 12, 2018

SCOTUS cert grant on deference to a foreign sovereign’s interpretation of its own law

Today the Supreme Court granted certiorari in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220), limited to the following question:

Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

 

January 12, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, January 11, 2018

Case Law

I’ve just posted my recent article, Case Law, 97 B.U. L. Rev. 1947 (2017). Here’s the abstract:

Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.

This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.

This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.

Thanks once again to the editors at the Boston University Law Review and to my colleagues who gave me such great comments and suggestions.

 

 

January 11, 2018 in Adam Steinman, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, January 9, 2018

Campos on Shapira & Zingales on Discovery and Rational Wrongdoing

Now on the Courts Law section of JOTWELL is Sergio Campos’s essay, Uncovering Through Discovery. Sergio reviews Roy Shapira’s & Luigi Zingales’s article, Is Pollution Value-Maximizing? The DuPont Case.

 

 

January 9, 2018 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, January 8, 2018

SCOTUS decision in Tharpe v. Sellers: FRCP 60(b)(6) motion to reopen federal habeas proceedings

Today the Supreme Court issued its decision in Tharpe v. Sellers. In a per curiam opinion, it grants certiorari and vacates the Eleventh Circuit’s refusal to grant a certificate of appealability (COA) to a habeas petitioner challenging the district court’s denial of his Rule 60(b)(6) motion to reopen his federal habeas proceedings. It remands the case for further consideration of whether Tharpe is entitled to a COA.

Justice Thomas authors a dissenting opinion, joined by Justices Alito and Gorsuch.

Download Tharpe v Sellers (SCT 2018)

 

 

January 8, 2018 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Siddique on Nationwide Injunctions

Zayn Siddique has posted on SSRN his article, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). Here’s the abstract:

One of the most dramatic exercises of a court’s equitable authority is the nationwide injunction. Although this phenomenon has become more prominent in recent years, it is a routine fixture of the jurisprudence of federal courts. Despite the frequency with which these cases arise, there has been no systematic scholarly or judicial analysis of when courts issue nationwide injunctions and little discussion of when they should issue such relief.

This Article presents the first comprehensive account of when nationwide injunctions issue. Earlier attempts to answer this question have focused exclusively on challenges to federal regulatory action and have concluded that the domain is one of unconstrained judicial discretion. By contrast, this Article considers not only cases involving the federal government but also those exclusively between private parties. The conclusion from this expanded focus is that courts determining the geographic scope of injunctions in disputes between private parties are largely guided by a single principle: The injunction should be no broader than “necessary to provide complete relief to the plaintiffs.” While the “complete relief” idea has echoes throughout equitable jurisprudence, it proves particularly robust at organizing the conditions under which nationwide injunctions issue. The Article then examines the body of cases involving the federal government to test the explanatory power of the complete relief principle. Although there is more variation, here too complete relief provides a useful tool for categorizing seemingly disparate cases under a common classification scheme. The Article concludes by arguing not only that the complete relief principle is descriptively useful for focusing debates about nationwide injunctions but also that Federal Rule of Civil Procedure 65 should be amended to codify the principle as a formal limit on the appropriate geographic scope of an injunction.

 

 

 

January 8, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, January 3, 2018

2018 Association of American Law Schools Annual Meeting

The 2018 AALS Annual Meeting is happening in San Diego this week. Here are some panels that may be of interest:

Continue reading

January 3, 2018 in Conferences/Symposia | Permalink | Comments (0)

Sunday, December 24, 2017

Big week in the federal courts

Three interesting decisions during the last few days:

  • On Thursday, the U.S. District Court for the Southern District of New York granted President Trump’s motion to dismiss in CREW v. Trump, a case alleging that Trump’s business interests violate the Domestic and Foreign Emoluments Clauses of the United States Constitution. Judge George B. Daniels grants Trump’s Rule 12(b)(1) motion to dismiss, finding that the plaintiffs lack Article III standing. The court also finds that the case presents a non-justiciable political question and that the plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication. The courts states, however, that it “does not reach the issue of whether Plaintiffs’ allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6)” or “whether the payments at issue would constitute an emolument prohibited by either Clause.”

Download CREW v Trump (SDNY Dec 21 2017)

  • On Friday, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Hawaii v. Trump, affirming the district court’s order enjoining portions of President Trump’s Proclamation 9645 (also known as Travel Ban 3.0). The per curiam opinion—by Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez—concludes that the Proclamation exceeds the President’s statutory authority under the Immigration and Nationality Act.The court does not address whether the Proclamation also violates the Establishment Clause. The court does, however, limit the scope of the district court’s preliminary injunction to “foreign nationals who have a bona fide relationship with a person or entity in the United States.” 

Download Hawaii v Trump (9th Cir Dec 22 2017)

  • And on Saturday, the U.S. District Court for the District of Columbia issued an order in ACLUF v. Mattis, denying the Defense Department’s motion to dismiss a petition for a writ of habeas corpus filed on behalf of an American citizen being detained by U.S. forces in Iraq. Judge Tanya S. Chutkan concludes that the American Civil Liberties Union Foundation (ACLUF) has standing under Article III as the detainee’s “next friend.” The court also orders the Defense Department to allow ACLUF “immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf,” and “to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes.”

Download ACLU v Mattis (DDC Dec 23 2017)

 

 

 

 

December 24, 2017 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, December 12, 2017

Ninth Circuit Oral Argument in the Juliana Case: Climate Change, Standing, Mandamus & More

Yesterday the U.S. Court of Appeals for the Ninth Circuit heard oral argument in United States v. United States District Court for the District of Oregon. The Ninth Circuit is considering the federal government’s petition for a writ of mandamus challenging the district court’s order in Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The district court had denied the government’s motion to dismiss a lawsuit that the court summarized as follows:

Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶ 5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.

217 F. Supp. 3d at 1233.

Here is a link to the audio and video of yesterday’s argument.

Here’s coverage from NBC Bay Area and The Mercury News.

 

 

 

December 12, 2017 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, December 11, 2017

Malveaux on Coleman on Women in Complex Litigation

Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, A Prescription for Overcoming Gender Inequity in Complex Litigation: An Idea Whose Time Has Come. Suzette reviews Brooke Coleman’s recent article, A Legal Fempire?: Women in Complex Civil Litigation, which is forthcoming in the Indiana Law Journal.

 

 

December 11, 2017 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, December 8, 2017

Two Interesting SCOTUS Cert Grants

Today the U.S. Supreme Court granted certiorari in several cases, including these two:

United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”

China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Sanchez-Gomez and China Agritech.

 

 

 

December 8, 2017 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, December 4, 2017

Fourth Annual Junior Scholars’ Conference at Michigan Law School (April 13-14, 2018)

Here is the call for papers: Download Michigan Junior Scholars Conference 2018

The deadline for submitting abstracts is January 8, 2018.

H/T: Paul Caron

 

December 4, 2017 in Conferences/Symposia | Permalink | Comments (0)

Friday, December 1, 2017

SCOTUS Cert Grant on Appellate Jurisdiction: Salt River Project v. SolarCity

Today the U.S. Supreme Court granted certiorari in Salt River Project Agricultural Improvement & Power District v. SolarCity Corp. It presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”

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

 

 

 

December 1, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, November 27, 2017

Michalski on Dodge & Dodson on Personal Jurisdiction over Aliens

Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, In Search of a Parsimonious Model of Personal Jurisdiction. Roger reviews Bill Dodge’s and Scott Dodson’s recent article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review.

 

 

 

 

November 27, 2017 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, November 14, 2017

Detroit-Mercy Law Review Symposium -- Call for Papers

UNIVERSITY OF DETROIT MERCY LAW REVIEW
CALL FOR PROPOSALS

The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between


The University of Detroit Mercy Law Review is pleased to announce its annual academic
Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.
This Symposium will contemplate a broad range of issues associated with Sanctuary Cities –
presentations may focus on a specific era – past, present, or future – or may discuss a subject
through the past, present and propose future solutions. Presentation topics could include, but are
not limited to:


• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact
information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not
required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review.

The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication.

The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at gnittje@udmercy.edu. Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at tapiama@udmercy.edu.

November 14, 2017 in Conferences/Symposia | Permalink | Comments (0)

Wednesday, November 8, 2017

SCOTUS Decision in Hamer v. Neighborhood Housing Services: A Question of Time

Today the Supreme Court issued its decision in Hamer v. Neighborhood Housing Services, the first merits decision of the new Term. The Court unanimously holds that FRAP 4(a)(5)(C)’s limit on extensions of time to file a notice of appeal is not jurisdictional. (Rule 4(a)(5)(C) provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”)

Justice Ginsburg’s opinion begins:

This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell, 551 U. S. 205, 210–213 (2007), this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Ibid.; Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Because the Court of Appeals held jurisdictional a time limit specified in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016), we vacate that court’s judgment dismissing the appeal.

The Court left open, however, several issues for the lower court to address on remand, including:

(1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see id., at 23–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see id., at 29–43.

 

 

 

 

November 8, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (1)

Tuesday, November 7, 2017

Erbsen on Lahav on Procedural Design

Now on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Sequential Progression of Dispute Resolution in Federal Courts. Allan reviews Alexandra Lahav’s recent article, Procedural Design.

 

 

 

November 7, 2017 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Weblogs | Permalink | Comments (1)

Thursday, October 26, 2017

The Supreme Court’s Post-Prudence Jurisprudence

Now up on the Vanderbilt Law Review’s website is my essay, Lost in Transplantation The Supreme Court’s Post-Prudence Jurisprudence, 70 Vand. L. Rev. En Banc 289 (2017). It’s a response to Fred Smith’s article, Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017).

 

 

October 26, 2017 in Federal Courts, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 25, 2017

Senate votes to repeal CFPB’s rule on arbitration

Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action. 

The vote was 50-50, with Vice President Pence breaking the tie. (The vote in the House of Representatives back in July was 231-190.)

 

 

 

 

October 25, 2017 in Class Actions, In the News | Permalink | Comments (0)

Tuesday, October 24, 2017

Access to Justice and the Legal Profession in an Era of Contracting Civil Liability (Fordham Law School, Oct. 27)

This Friday (10/27) Fordham Law School is hosting a colloquium entitled Access to Justice and the Legal Profession in an Era of Contracting Civil Liability.

Here is the schedule:

Download Access to Justice and the Legal Profession Program Schedule

(H/T: Suja Thomas)

 

 

 

October 24, 2017 in Conferences/Symposia | Permalink | Comments (0)

Thursday, October 19, 2017

Rood Chair of Trial Advocacy and Procedure at University of Florida

The University of Florida Levin College of Law is seeking applications for the Ed Rood Chair of Trial Advocacy and Procedure. They are particularly interested in scholars whose work focuses on Civil Procedure, Federal Courts, Evidence, Trial Practice, Professional Responsibility, and other litigation-related courses.

Here is the full announcement:

Download UF Hiring Announcement

 

 

 

October 19, 2017 | Permalink | Comments (0)