Civil Procedure & Federal Courts Blog

NY Times Editorial on the importance of funding state courts

The New York Times has run an editorial about the importance of state courts, writing that "[t]his vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits."

Happy Thanksgiving, dear readers.

RJE

Call for Papers: Iqbal Symposium

Penn State, Dickinson School of Law has issued this call for papers in connection with a March 26, 2010 symposium on "Reflections on Iqbal--Discerning Its Rule, Grappling With Its Implications":

Call for Papers

Symposium: Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications

Penn State Law Review

Penn State University, Dickinson School of Law

On Friday, March 26, 2010, the Penn State Law Review will hold a symposium addressing the Supreme Court's recent decision in Ashcroft v. Iqbal.  The symposium is entitled Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications and will feature panels addressing the following topics:

·         Iqbal's implications for the role of the courts and judges in providing American society with both the opportunity for redress of harms and a common law-based approach to the development of law. 
·         The majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.
·         Iqbal's implications for constitutional tort litigation, including the decision's potential impact on supervisory liability, qualified immunity, and the behavior of agency officials operating under adverse conditions. 

Presenters currently include: Hon. Anthony Scirica (Chief Judge, Third Circuit), Hon. D. Brooks Smith (Third Circuit), Mark Brown (Capital), Ray Campbell (Penn State), Gary Gildin (Penn State), Ramzi Kassem (CUNY), Kit Kinports (Penn State), Jim Pfander (Northwestern), Jeff Rachlinski (Cornell), Victor Romero (Penn State), Natsu Saito (Georgia State), Jean Sternlight (UNLV), Shoba Wadhia (Penn State), and Nancy Welsh (Penn State).  Presented papers will be published in a Symposium Issue of the Penn State Law Review.  Brief abstracts of the papers will be posted on the LawReview’s online companion, Penn Statim, by December 16, 2009. 

The Penn State Law Review issues this Call for Papers for submissions regarding Iqbal and particularly invites submissions regarding the topics to be covered at the Iqbal symposium and responding to the abstracts that will be posted on Penn Statim.  Submissions will be accepted, however, that are grounded in other areas of law relevant to understanding the reasoning in Iqbal (e.g., security, employment, antitrust, etc.), as well as other academic disciplines.  Papers submitted in response to this Call should be of essay length and type and should be no longer than 5,000 words, including footnotes.  Through its online companion, the Penn State Law Review hopes to encourage and host a scholarly online dialogue regarding Iqbal and its implications.  Therefore, after conducting an editorial review process, the Penn Statim will select and begin posting papers on December 17, 2009, with selections and postings to continue on an ongoing basis.  At least one of the papers submitted in response to this Call will be selected for hard-copy publication in the Summer Issue of the Penn State Law Review.  The author of any paper selected for such hard-copy publication will be invited (but not required) to expand upon his or her essay-length piece. 

The deadline for submissions in response to this Call is Friday, April 16, 2010.  All submissions must be sent to iqbalsymposium@law.psu.edu.  All submissions must be in English and comply with Bluebook formatting rules.  Penn Statim is available at http://www.pennstatelawreview.org/.

[Hat Tip: Nancy Welsh] 

~clf

South Africa to Create Special World Cup Courts

The BBC reports that South Africa is creating special courts to deal with crime during the World Cup.  The purpose of the courts is to allow visitors to testify even though they will be in the country for a short time.  The theory is that "fast tracking" crimes committed during the World Cup will act as an extra deterrent.

The 54 courts will operate in the nine World Cup cities and judges, lawyers and volunteers will receive special training.

RJE

Issacharoff & Klonoff on The Public Value of Settlement

Professor Samuel Issacharoff (NYU School of Law) and Dean Robert H. Klonoff (Lewis & Clark Law School) have posted "The Public Value of Settlement" on SSRN.  This paper will be published in the Fordham Law Review.

The abstract states:

This article, part of a symposium honoring the 25th anniversary of Owen Fiss’s Against Settlement, takes issue with the basic premise that settlement indicates defeat of the weak by the powerful, the poor by the rich, the injured by the wrongdoers. The argument is both empirical and normative. On the empirical side, this article challenges the basic claim advanced by Fiss and Marc Galanter that repeat players in the courts of justice are more likely to prevail because they will marshal and deploy greater resources. Over the past quarter century, the emergence of the well-heeled plaintiffs’ firm together with referral and other market organizing practices have allowed plaintiffs to fight and defeat institutional defendants across all sorts of mass harm cases. Normatively, this article challenges the assumption that the driving organizational framework of the court system should be derived from the structural injunction that characterized an episodic phase of the civil rights movement. Instead, resolution of mass harms has been and continues to be one of the great challenges of the judicial system, a process for which settlement is a critical and likely inescapable component.

~clf

Gilles on Judicial Hostility to Small-Claims Consumer Class Actions

Myriam E. Gilles (Cardozo Law School) has posted Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions to SSRN.

Abstract:     
I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model.

RJE

Now in Congress: The Federal Courts Jurisdiction and Venue Clarification Act

H.R. 4113 was introduced last week in the U.S. House of Representatives. It would amend sections of the U.S. Code dealing with:

• Diversity jurisdiction (28 U.S.C. 1332)

• Removal and remand (28 U.S.C. 1441 & 1446)

• Venue (revisions to 28 U.S.C. 1391, the deletion of 28 U.S.C. 1392, and the creation of a new 28 U.S.C. 1390)

• Transfer of venue (28 U.S.C. 1404 & 1406)

Here is the table of contents:

TITLE I—JURISDICTIONAL IMPROVEMENTS
Sec. 101. Treatment of resident aliens.
Sec. 102. Citizenship of corporations and insurance companies with foreign contacts.
Sec. 103. Indexing the amount in controversy.
Sec. 104. Facilitating use of declarations to specify damages.
Sec. 105. Removal and remand procedures.
Sec. 106. Effective date.

TITLE II—VENUE AND TRANSFER IMPROVEMENTS
Sec. 201. Scope and definitions.
Sec. 202. Venue generally.
Sec. 203. Repeal of section 1392.
Sec. 204. Change of venue.
Sec. 205. Cure or waiver of defects.
Sec. 206. Effective date.

For more information, see the Library of Congress's website here. The full text of the bill is available here (.xml format) or here (.pdf format)

(Hat Tips: Kevin Clermont & Jim Pfander)

--A

Bulto on Judicial Referral of Constitutional Disputes in Ethiopia

Takele Soboka Bulto (Melbourne Law School, The University of Melbourne) has posted "Judicial Referral of Constitutional Disputes in Ethiopia" on SSRN.  It will be published as part of "Constitutionalism and the Rule of Law in Ethiopia: Challenges and Opportunities," the editors of which are Assefa Fiseha and Getachew Assefa.

The abstract states:

The trend of swift and at times unquestioning judicial referral of constitutional disputes to the CCI has seemingly bordered judicial surrender of its proper province of refereeing the possible trespasses and frictions by the legislative and executive branches. The underlying reasons, real or apparent, are many and varied but two deserve an explicit mention here as they lie at the heart of jurisdictional dilemmas surrounding the procedure of judicial referral of constitutional issues to the CCI/HoF. The first is the legal argument arising from the provisions of Article 83(1) of the Constitution, which stipulates that ‘all constitutional disputes’ shall be decided by the HoF. This provision has given rise to the view, in judicial circles and beyond, that courts are relived of the duty to interpret and apply constitutional provisions. Thus it is believed that the constitution is taken away from the courts, and that for the regular judiciary to directly apply and interpret the constitution would tantamount to the courts ‘punching above their heights.’ Consequently, the regular courts have been ‘loathe doing anything which might indicate that they are engaged in constitutional interpretation.’ Another reason for judicial avoidance of constitutional adjudication is related to the judicial tendency to shun cases that involve politically sensitive issues which, more often than not, constitutional disputes tend to trigger. The overall consequence has been that litigants, as much as the courts, have avoided citing constitutional provisions for fear of risking judicial referral of their cases to the CCI/HoF. 

This paper sets out to depict that the constitution speaks with two voices: the main voice remains that of the regular courts while merely the residual powers are ceded to the CCI/HoF procedures. It is argued that judicial referral of constitutional issues is discretionary as opposed to mandatory, and that the procedure of referral pertains solely to questions of law as opposed to questions of fact, the latter being the court’s constitutional duty.

~clf

O'Hara & Ribstein on Conflict of Laws and Choice of Law

Professor Erin A. O'Hara (Vanderbilt University School of Law; Gruter Institute for Law and Behavioral Research) and Professor Larry E. Ribstein (University of Illinois College of Law) have posted "Conflict of Law and Choice of Law" on SSRN as part of the Working Paper Series.

The abstract states:

In this revised entry for a new edition of Elgar’s Encyclopedia of Law and Economics we discuss the law and economics of conflict of laws and choice of law, focusing on the law in the US. We first consider choice of law when the parties have not effectively chosen their governing law by contract. We address four questions: (1) Why do courts ever apply anything other than the law of the forum? (2) If a court sometimes applies foreign law, is a rule-based or more modern standard-based approach to its choice preferable? (3) Why have so many states abandoned rule-based approaches in favor of standard-based ones? and (4) Is there any real practical difference between the First Restatement and modern approaches? We then discuss costs and benefits of enforcing parties’ contractual choice of law provisions. We conclude that permitting parties to choose the governing law that best fits their transactions and future private disputes can enhance jurisdictional competition and help restore predictability to the conflict of laws problem. When states nevertheless wish to insist on the application of their own governing law, they should state that explicitly in statutes.

~clf

Seinfeld on Article III and the Limits of Enumeration

Professor Gil Seinfeld (Michigan) has posted on SSRN his article, Article I, Article III, and the Limits of Enumeration, which will be published in the Michigan Law Review. Here's the abstract:

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

--A

Michelman on standing to sue over government surveillance

Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc to SSRN.
Abstract:     
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

RJE

Pether on Constitutional Solipsism

Professor Penelope Pether (Villanova University School of Law) has published "Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits' Nonprecedential Status Rules are (Profoundly) Unconstitutional" on SSRN. The article will be published in the William & Mary Bill of Rights Journal.

Abstract:

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name. 

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right. 

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.

~clf

Thomas on the standard for motions to dismiss after Iqbal and Twombly

Professor Suja A. Thomas (University of Illinois College of Law) posted "The New Summary Judgment Motion:  The Motion to Dismiss Under Iqbal and Twombly" on SSRN as part of the Working Paper Series.

The abstract states:

Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.

~clf

Pimentel P.S. -- and an update!

Last year, the Supreme Court decided the case of Republic of Philippines v. Pimentel, 128 S. Ct. 2180 (2008) in which it held that the government of the Philippines and a government entity were necessary parties to an interpleader action.  Merrill Lynch had filed the action regarding assets that it held from a shell corporation that Ferdinand Marcos had set up to hide money during his reign as president of the Philippines.  The government entities were unavailable due to sovereign immunity, and the Supreme Court held that the case should be dismissed under Rule 19(b) because it could not proceed without these parties.

The case provided fresh material to anyone teaching mandatory joinder of parties, interpleader, or the FSIA.  And although the Supreme Court might have spoken, the fight over the money continues, the Associated Press reports that the Ninth Circuit has "rebuked" the district judge who was handling the assets for Merrill Lynch, accusing him of lax oversight.

There have also been developments at the state court level (H/T Kevin Clermont).  Some of the human rights judgment claimants have filed a petition in New York state court to enforce the judgment and have Merrill Lynch turn over the Arelma assets.  The Philippine National Bank and Arelma moved to intervene, and then to dismiss the complaint because the Republic and the Commission were not joined.  In a November 6, 2009 opinion (available here: Download 09-104734 decision seq. 02), the NY trial judge granted the intervention but refused to dismiss the case because the governmental parties were not joined. 

The opinion is interesting on a few fronts.  First, the question of mandatory joinder of parties proceeds somewhat differently under the CPLR, as the question relates to the provisions for turnover of assets and enforcement of judgments, rather than a specific rule that addresses mandatory joinder of parties.  It contains a res judicata issue concerning the U.S. Supreme Court's ruling on the Rule 19 joinder issue.  Second, it addresses two changed circumstances since the Supreme Court decision, (1) that the Philippino court has found that the assets should revert to the government of the Philippines (although judgment is not final; and (2) The government of the Philippines has waived sovereign immunity in a similar action in Singapore, indicating a willingness to waive sovereign immunity under certain circumstances.  The trial judge then held that the action should continue without the government parties.  It also ruled that the judgment from the District of Hawaii had not lapsed.

All in all, a virtual treasure trove of procedural issues from federal and state courts. 

I guess that the Marcos family is the gift that keeps on giving.

RJE

Hot Off The Presses: Recent Articles Of Interest

With a hat tip to the latest installment of the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Dustin E. Buehler, Revisiting Rooker-Feldman: Extending the Doctrine to State Court Interlocutory Orders, 36 Fla. St. U. L. Rev. 373 (2009)

Paul E. Lund, Federally Chartered Corporations and Federal Jurisdiction, 36 Fla. St. U. L. Rev. 317 (2009)

A. Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1 (2009)

S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?, 30 Mich. J. Int'l L. 1017 (2009)

Edmund Ursin, How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking, 57 Buff. L. Rev. 1267 (2009).

--A

Amended Settlement Agreement in Google Book Class Action

As covered earlier here, the FRCP 23(e) fairness hearing on the controversial settlement in the Google Book class action -- originally scheduled for last month -- was postponed by U.S. District Judge Denny Chin. The reason was "ongoing negotiations with the Department of Justice that, according to plaintiffs, will result in significant changes to the existing settlement agreement."

The amended settlement agreement that resulted from these negotiations was submitted last Friday and is available here.

For coverage of the amended settlement agreement, see Concurring Opinions, CNET, Financial Times.

Filings in the case (The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.)) can be accessed via Justia or Pacer.

Other good resources on the case include the website of the Settlement Administrator, Wikipedia and The Public Index (a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School).

--A

Administrative procedure in Europe

Anne Meuwese, Ymre Schuurmans, and Wim J. M. Voermans, have posted Towards a European Administrative Procedure Act on SSRN.

Abstract:     
Under the joint responsibility of the Member States to implement EU law, administrative law systems of the EU are converging and a common body of EU administrative law is emerging. Most debates on this process of EU administrative law integration have focused on differences and divergences between national systems vis-à-vis the EU system. The concept of administration at the level of the EU, however, is difficult to compare to that in use in most domestic systems in continental Europe. In this contribution we bring the lens of the United States (U.S.) approach to the debate. The problems and challenges the EU administration faces do resemble those which confronted the federal administration in the U.S. more than 50 years ago. The article discusses some of the parallels between the U.S. and EU system and zooms in on the EU’s ‘problem zones’: preparation of regulation – in particular the role of participation and the use of evidence therein – and the position of agencies. On the basis of experiences with the Administrative Procedure Act (APA) in controlling the U.S. administration and the federal agencies, the contribution then reflects on the desirability of a general EU administrative law act, especially in view of the upcoming extension of judicial review of general rules the Lisbon Treaty will most likely bring. The conclusion is in short that the American APA offers food for European thought and that a lot could be gained with a European styled APA ‘light version’.

RJE

Geyh on Judicial Independence

Charles G. Geyh (Indiana University Bloomington School of Law) has posted "Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence" on SSRN.  It will be published in the Notre Dame Journal of Law, Ethics and Public Policy.

The abstract states:

In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.

~clf

Burger King franchisees strike back

The franchisees are suing over losses stemming from the $1 menu promotion.
Perhaps, hidden somewhere down the road, another civil procedure issue is in the making!

RJE

Conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court"

George Washington University Law School is hosting a conference on "Rethinking the Law Governing the Structure and Operation of the Supreme Court" on November 20, 2009.  The conference website states:

This conference explores laws governing the structure and operation of the Supreme Court, which is the next step in the work begun by Professors Paul Carrington and Roger Cramton, to encourage the political branches to take a serious look at those issues for the first time since the 1920s.  They have been assisted in planning this conference by Daniel Meador, Judith Resnik, George Liebmann, and Alan Morrison.

Speakers include Daniel Meador, Stephen Burbank, Amanda Tyler, Judith Resnik, Linda Greenhouse, Lee Epstein, David Levi, George Liebmann, Gerald Tjoflat, William Marshall, Kenneth Starr, Mark Harrison, Gilbert Merritt, Charles Geyh, and Russel Wheeler.

The conference website is here.  

The conference agenda is here.  

Links to conference papers may be found here.

~clf

Coverage of SCOTUS Argument in Hertz Corp. v. Friend (Where Is a Corporation's Principal Place of Business?)

One notable event during this oral argument (previewed here and covered here) was this exchange between Chief Justice Roberts and respondent's counsel:

MR. SCHNEIDER: Mr. Chief Justice, did the Court have interest in the jurisdictional argument?

CHIEF JUSTICE ROBERTS: I don't know.

(Laughter.)

CHIEF JUSTICE ROBERTS: I can only speak for one member of the Court, and that one doesn't.

The Blog of Legal Times has coverage here ("Lawyer Learns that Roberts Speaks Only for Himself").

The "jurisdictional argument" to which respondent's counsel referred appears in two paragraphs at the very beginning of respondent's brief. The theory is that Supreme Court review is precluded by 28 U.S.C. § 1447(d), because CAFA's exception to 1447(d)'s bar on review of remand orders (28 U.S.C. § 1453(c)) does not explicitly allow for Supreme Court review. Here's the relevant text from respondent's brief:

Respondents dispute Petitioner’s assertion that appellate jurisdiction exists here pursuant to 28 U.S.C. § 1254. Generally, there is no appellate review of a district court order remanding a case for lack of subject matter jurisdiction. 28 U.S.C. § 1447(d); Carlsbad Tech., Inc. v. HIF BIO, Inc., 129 S. Ct. 1862, 1866 (2009). This prohibition manifests a long-standing Congressional policy opposing “interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court.” See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. 633, 640 (2006).

The Class Action Fairness Act (“CAFA”) created a limited exception, codified at 28 U.S.C. § 1453(c), which provides only a 70-day window in which an appeal must be brought to final judgment. 28 U.S.C. § 1453(c)(4) (“If a final judgment on appeal under paragraph (1) is not issued before the end of [70 days], the appeal shall be denied”). However, nothing in that section provides for additional review by this Court. There is no tension between applying § 1453(c)’s limited window of appellate review and holding that § 1447(d)’s prohibition of appellate review applies thereafter; the express language of § 1453(c) and the legislative history confirm that is what Congress intended. See 28 U.S.C. § 1453(c)(1) (stating that § 1447 applies to CAFA remands, excepting the limited appeal provided elsewhere in § 1453). Here, appellate jurisdiction terminated, at the latest, 70 days after the appeal was docketed by the Ninth Circuit (i.e., November 4, 2008).

For additional coverage of the argument, see the National Law Journal and SCOTUSblog.

(Hat Tip: Beth Thornburg)

--A