Tuesday, September 19, 2017
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Trouble with Qualified Immunity. Fred reviews Will Baude’s recent article, Is Qualified Immunity Unlawful?, which is forthcoming in the California Law Review.
Monday, September 18, 2017
Here’s the announcement from the Administrative Conference of the United States (ACUS):
The Forum on Federal Administrative Adjudication, which will take place on Friday, September 29 from 9:00 a.m. to noon, will now be held in Room 50 of the Dirksen Senate Office Building.
More information, including the final agenda, can be found on the Conference’s website (click here). If you are interested in attending, please RSVP to firstname.lastname@example.org, and include the following subject line in your email: “RSVP for Adjudication Forum.” If you have questions about the forum, please contact Attorney Advisor Dan Sheffner (email@example.com).
(H/T: Adam Zimmerman)
Wednesday, September 6, 2017
Eleventh Circuit reverses grant of summary judgment against plaintiffs challenging Alabama’s lethal injection protocol
Last week the U.S. Court of Appeals for the 11th Circuit issued a unanimous decision in Grayson v. Warden. The plaintiffs-appellants are challenging Alabama’s three-drug lethal injection protocol, and the Eleventh Circuit reversed the district court’s grant of summary judgment against them. The opinion considered a number of procedural issues, including the summary judgment standard, law-of-the-case doctrine, and statute of limitations.
With respect to summary judgment, the Eleventh Circuit found that it was error for the district court to reject at the summary judgment phase the appellants’ contention that a single-drug protocol was an available alternative method of execution that sufficiently reduced the risk of pain:
The District Court reached this conclusion with respect to Appellants’ proposed single-drug protocol based on the testimony of the ADOC’s General Counsel, Anne Adams Hill. In deciding to credit Hill’s testimony and then weigh it against Appellants’ proof, the District Court functioned as a finder of fact and ultimate decision maker and therefore erred. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court’s role to weigh conflicting evidence or to make credibility determinations; the non-movant’s evidence is to be accepted for purposes of summary judgment.”). The Court performed the same role when it determined the credibility of testimony and weighed the evidence in summarily disposing of Appellant’s midazolam proposal.
Also notable are the concluding pages of the opinion, which criticized the pleadings on both sides:
Tuesday, September 5, 2017
The Committee on Rules of Practice and Procedure (the Standing Committee) has published proposed amendments to several federal rules, requesting comments by February 15, 2018. Although this batch contains no proposed amendments to the Federal Rules of Civil Procedure, amendments to the Appellate Rules and the Rules for Section 2254 and Section 2255 proceedings may be of interest.
Friday, September 1, 2017
Dustin Benham forwarded the following announcement:
The AALS Section on Teaching Methods is hosting a teaching discussion forum via conference call on September 15, 2017, from 2-3 pm ET. During the call, a few presenters will present a teaching problem and solution for discussion with the group. We welcome your participation in the call but do ask that you RSVP via our short online form here.
Also, the Section needs presenters (on any teaching topic) for the September 15th call. The format is informal – all we ask is that you submit a short topic proposal in advance to allow us to coordinate and organize the call. Each topic and discussion usually run about 15 minutes. You can submit your proposal at the RSVP form mentioned above. The deadline for RSVPs and proposals has been extended to Friday, September 8, 2017.
For more information about the Teaching Methods conference call, descriptions of previous discussions, and online audio from the last call, see the full Teaching Methods newsletter here.
Wednesday, August 30, 2017
Bill Dodge and Scott Dodson have posted on SSRN a draft of their article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review. Here’s the abstract:
The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action is federal or state law, and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction and alien defendants that will resonate with the Supreme Court.
Tuesday, August 29, 2017
Joe Seiner has just published The Supreme Court’s New Workplace (Cambridge University Press 2017). Here’s the description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court's new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Friday, August 25, 2017
The deadline to submit papers has been extended to Tuesday, September 5, 2017. Here’s the updated announcement:
The AALS Section on Conflict of Laws invites papers for its program entitled “Crossing Borders: Mapping the Future of Conflict of Laws Scholarship” at the AALS Annual Meeting, January 3-6, 2018, in San Diego.
Thursday, August 24, 2017
On October 13, 2017, the Vanderbilt Law Review will be hosting a symposium entitled The Future of Discovery. From the announcement:
The Vanderbilt Law Review and Professor Brian Fitzpatrick are pleased to announce the 2017 Vanderbilt Law Review Symposium: The Future of Discovery. This year’s Symposium will take place on Friday, October 13, 2017 at Vanderbilt Law School. The Symposium will feature three panels of scholars discussing their recent work in the area of e-discovery, a keynote address delivered by U.S. District Judge Paul W. Grimm, and a round-table discussion with sitting federal judges to consider advances in and future challenges of discovery. The Symposium is open to practicing attorneys, and CLE credit will be available.
Panelists presenting at the Symposium will include:
Sergio J. Campos (University of Miami School of Law)
E. Donald Elliot (Yale Law School)
Jessica Erickson (University of Richmond School of Law)
Brian T. Fitzpatrick (Vanderbilt University Law School)
Robert Klonoff (Lewis & Clark Law School)
Alexandra D. Lahav (University of Connecticut School of Law)
Johnathan R. Nash (Emory University School of Law)
Martin H. Redish (Northwestern University School of Law)
David Rosenberg (Harvard Law School)
Linda Sandstorm Simard (Suffolk University Law School)
Joanna M. Shepherd (Emory University School of Law)
Paul Stancil (Brigham Young University Law School)
Jay Tidmarsh (University of Notre Dame Law School)
Thursday, August 17, 2017
This week the U.S. Court of Appeals for the Fifth Circuit issued its decision in Block v. Tanenhaus, reinstating a Loyola University professor’s claims for defamation and false light against the New York Times and two of its authors. The per curiam opinion acknowledges, but does not resolve, the interesting question of whether state “anti-SLAPP” statutes—such as Louisiana’s Article 971—apply in federal court under Erie:
Block argues that Article 971 is not applicable in federal court because it is procedural and because, even if it is substantive, it is in direct collision with the Federal Rules of Civil Procedure. The applicability of state anti-SLAPP statutes in federal court is an important and unresolved issue in this circuit.2 Unfortunately for Block, his arguments against application of Article 971 have been forfeited.
Footnote 2 describes the state of play in the Fifth Circuit:
We have noted on several occasions that this is an open question. See, e.g., Block, 815 F.3d at 221; Cuba v. Pylant, 814 F.3d 701, 706 & n.6 (5th Cir. 2016); Lozovyy, 813 F.3d at 582–83; Culbertson v. Lykos, 790 F.3d 608, 631 (5th Cir. 2015); Mitchell v. Hood, 614 F. App’x 137, 139 n.1 (5th Cir. 2015); NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 752–53 (5th Cir. 2014). These opinions post-date our decision in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009), which stated without explanation that “Louisiana law, including the nominally-procedural Article 971, governs this diversity case.” Id. 168–69. In Lozovyy, we noted the possibility that, particularly in light of our subsequent decisions, Henry could be interpreted as assuming the applicability of Article 971 for purposes of that case without deciding its applicability in federal courts more generally. Lozovyy, 813 F.3d at 582–83. Similarly, we noted in Pylant that Henry did not address “whether, under the Erie doctrine, the array of state procedural rules surrounding anti-SLAPP motions to dismiss (viz. discovery stays, accelerated timetables for decision, and the like) follow the core anti-SLAPP motion to dismiss into federal court.” Pylant, 814 F.3d at 706 n.6; cf. id. at 719 (Graves, J., dissenting) (addressing Erie question not reached by majority opinion and stating that similar anti-SLAPP statute in Texas is inapplicable in federal court because it is procedural (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)).
California Western School of Law (CWSL) is seeking applications from entry-level and junior-lateral candidates for a tenure-track position to begin on or about August 1, 2018. We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. The Appointments Committee is particularly interested in candidates with a strong desire to teach civil procedure, family law, immigration law, tax, or trusts/estates. CWSL welcomes applications from individuals who would contribute to the vibrancy and diversity of our faculty.
Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school located in downtown San Diego, California. We have the distinction of being San Diego’s oldest law school and are known for our commitment to preparing students to be practice-ready lawyers. Notably, our graduates regularly outperform the statewide average on the California bar exam. CWSL is the recipient of numerous community service awards, including the State Bar of California President’s Pro Bono Service Award, and the federal government’s President’s Higher Education Community Service Honor Roll. We are also home to numerous outstanding programs, including the California Innocence Project, Community Law Project, and the New Media Rights Program. Members of the faculty have national and international reputations for their scholarly contributions. Our faculty is dedicated to the community, teaching, and scholarship.
A substantial percentage of CWSL students come from diverse cultural, ethnic, and socioeconomic backgrounds. We are committed to developing a faculty that better reflects this reality, and to this end, we are particularly interested in candidates who are committed to teaching a diverse student body. All candidates are encouraged to submit a statement to our Appointments Committee addressing their commitment to diversity and how they can contribute to the educational experience of our students.
Please direct application materials (including cover letter, CV, and diversity statement) and questions to the chair of the Appointments Committee, Professor William Aceves, at the following email address: firstname.lastname@example.org. The other committee members are Professors Hannah Brenner, Nancy Kim, and Joanna Sax. The Appointments Committee is attending the AALS faculty recruitment conference in November 2017. Please reference your AALS FAR form number in any correspondence. For candidates seeking consideration outside of the AALS faculty recruitment conference, we encourage the submission of applications before September 1, 2017.
Wednesday, August 16, 2017
Last year we covered an interesting but somewhat obscure issue that came up in connection with the 2015 and 2016 amendments to Rule 4 of the Federal Rules of Civil Procedure. Inconsistencies in the text of these two amendments left it unclear which kinds of service were explicitly exempted from Rule 4(m)’s presumptive 90-day deadline for serving process. The situation prompted a letter to Congress by Sixth Circuit Judge Jeffrey Sutton, who was then the chair of the Standing Committee, seeking to clarify what the “net effect” of the two amendments would be.
This spring, the Supreme Court approved a new amendment that will remove any uncertainty on this question. Under the 2017 amendment, Rule 4(m) will read as follows:
If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
Unless Congress intervenes, this amendment will go into effect on December 1, 2017.
Thursday, August 10, 2017
Monday, July 31, 2017
Brian Farkas has posted The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act to SSRN.
Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Clarence Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court. Indeed, he has been among the most vocal and consistent opponents of the application of the FAA in state court proceedings. Yet his voice has always been in dissent, most recently in the December 2015 decision in DIRECTV, Inc. v. Imburgia. This Article represents the most comprehensive examination to date of Justice Thomas’ views on both the FAA and arbitration more broadly. Beginning with a background on the FAA’s history and the Supreme Court’s arbitration jurisprudence, it explores his unique judicial philosophy and its intersection with arbitration policy. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes.
Friday, July 28, 2017
This article by Bruce Kaufman in Bloomberg BNA describes the currently "stalled" status of these bills in the Senate.
Wednesday, July 19, 2017
Betty Dukes, the lead plaintiff in the historic class action Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Calif.), has died at age 67. Although the lower courts granted and affirmed class certification in a gender- and race-based discrimination suit, the Supreme Court, in a 5-4 decision authored by Justice Antonin Scalia for the majority, reversed the grant of class certification.
Hat tip: Janet Alexander.
Wednesday, July 12, 2017
An announcement from the CSLSA:
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
Hotel rooms are now available for pre-booking. The conference hotel is the Holiday Inn Conference Center in Carbondale. To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL. SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events. Other hotel options (without shuttle service) are listed on our website. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.
Monday, July 10, 2017
From the summary:
First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.
Friday, July 7, 2017
Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re Petrobras Securities. Among other things, the panel’s opinion addresses the role of “ascertainability” for class certification under FRCP 23:
“We take this opportunity to clarify the ascertainability doctrine’s substance and purpose. We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement. The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”
Specifically, the Second Circuit rejected what it called “[t]he heightened ascertainability test, as articulated by the Third Circuit,” which “treats administrative feasibility as an absolute standard: plaintiffs must provide adequate ‘assurance that there can be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’”
“We conclude that an implied administrative feasibility requirement would be inconsistent with the careful balance struck in Rule 23, which directs courts to weigh the competing interests inherent in any class certification decision.”
Wednesday, June 28, 2017
The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures. The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."
This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions: Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.
A few interesting highlights from the discovery order:
Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess." Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."
Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."
Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."
This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce. More info here.