Thursday, July 12, 2018

Wasserman on Mitchell on the Writ-of-Erasure Fallacy

Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, A Step Toward a Proper Understanding of Constitutional Litigation. Howard reviews Jonathan Mitchell’s recent article, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018).

 

 

July 12, 2018 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, June 29, 2018

SCOTUS Cert Grant in Franchise Tax Board of California v. Hyatt III

It may have been lost in all of the news surrounding Justice Kennedy’s retirement, but yesterday the Supreme Court granted certiorari in Franchise Tax Board of California v. Hyatt, which presents the question:

“Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.”

This is the case’s third trip to the Supreme Court.

You can follow the merits briefs as they come in at SCOTUSblog and at the Supreme Court’s website.

 

 

 

June 29, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, June 26, 2018

Some Interesting SCOTUS Cert Grants

Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:

Sudan v. Harrison presents the question:

Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

[You can follow the Sudan merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

Nutraceutical Corp. v. Lambert presents the question:

Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).

The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?

[You can follow the Neutraceutical merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:

Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

[You can follow the Henry Schein merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

 

 

 

 

 

June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 21, 2018

Swan on cities as plaintiffs

Sarah Swan has published Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018). Here’s the abstract:

When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities.

Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.

 

 

 

 

June 21, 2018 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Sunday, June 17, 2018

Singer on Rosen on William Howard Taft

Now on the Courts Law section of JOTWELL is Jordy Singer’s essay, Hail to the Chief Justice. Jordy reviews Jeffrey Rosen’s recent book, William Howard Taft.

 

 

June 17, 2018 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, June 14, 2018

SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law

Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:

When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).

We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.

[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]

 

 

 

June 14, 2018 in Federal Rules of Civil Procedure, International/Comparative Law, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Monday, June 11, 2018

SCOTUS decision in China Agritech v. Resh: American Pipe tolling and subsequent class actions

Today the Supreme Court issued its decision in China Agritech, Inc. v. Resh (covered earlier here). Justice Ginsburg authored the Court’s opinion, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. From the introduction:

This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The Court held in American Pipe that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class-action status has been denied, the Court further ruled, members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. See id., at 544, 552–553. Later, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), the Court clarified American Pipe’s tolling rule: The rule is not dependent on intervening in or joining an existing suit; it applies as well to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene . . . once the economies of a class action [are] no longer available.” 462 U. S., at 350, 353–354 * * * .

The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limi­tations? Our answer is no. American Pipe tolls the stat­ute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.

The opinion concludes:

The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of Amer­ican Pipe.

Justice Sotomayor wrote a concurring opinion, which begins:

I agree with the Court that in cases governed by the Private Securities Litigation Reform Act of 1995 (PSLRA),15 U. S. C. §78u–4, like this one, a plaintiff who seeks to bring a successive class action may not rely on the tolling rule established by American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). I cannot, however, join the majority in going further by holding that the same is true for class actions not subject to the PSLRA.

 

 

 

 

June 11, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, June 8, 2018

Marcus on the Second Era of the Modern Class Action (1981-1994)

Dave Marcus has published The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981-1994, 86 Fordham L. Rev. 1785 (2018). Here’s the abstract:

The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated.

This Article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device.

Below this surface tranquility lurked important developments in what the class action, newly embroiled in fundamental debates over litigation and legitimacy, was understood to implicate. Critics castigated the civil rights class action as an emblem of the “imperial judiciary’s” rise and of courts’ inability to separate law from politics. To industries targeted by plaintiffs’ lawyers, the securities fraud class action exemplified the “litigation explosion” and challenged judicial competence to screen for meritorious lawsuits. The emergence of the mass tort class action as an alternative to legislative and administrative processes made a determination of litigation’s legitimate role particularly urgent.

These second-era episodes deepened partisan divides over the class action and prompted new claims about what sort of private litigation could legitimately proceed. The three episodes drew new and influential participants into fights over the class action, and they eventually reengaged policymakers with class action regulation. Such developments made an era of significant reform all but inevitable.

June 8, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, June 7, 2018

Solberg & Diascro on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation

Rorie Spill Solberg (Oregon State Univ., Department of Political Science, School of Public Policy) and Jennifer Segal Diascro (University of California Washington Program (UCDC)) have published an article entitled "A Retrospective on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation" in the Journal of Politics, Groups, and Identities.  Here's the abstract: 

"Despite abundant attention to the judicial selection of U.S. Supreme Court justices, most federal legal disputes are resolved in the lower federal courts. Who the judges are and how they make their decisions matters enormously in a democracy that values the fair and equitable treatment of its citizens under the rule of law. Our focus in this study is on the demographic diversity of President Obama’s appointments to the lower federal bench. It is clear from the various methods of examining the numbers that Obama valued diversity – perhaps more so than any previous president. When we examine all lower courts in the aggregate, and then district and circuit courts separately, the total number of successful nominees, the replacement patterns for departing judges, and comparisons between active and senior status judges, we see a concerted and largely successful effort to increase symbolic representation on the federal judiciary. Under different political circumstances, the data would lead us to consider novel complexities in diversifying the federal bench in the next several years. But a Trump presidency and its expected focus on ideology over diversity is likely to lead the study of judicial selection in a different direction, at least for the time being."

June 7, 2018 in Current Affairs, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Strong on International Due Process and Procedural Jus Cogens

S.I. Strong has published General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn. St. L. Rev. 347 (2018). Here’s the abstract:

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law.

The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope, and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights, and the rule of law.

The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.

The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics, and practitioners in the United States and abroad and offers groundbreaking insights into the nature of international procedural rights.

 

 

 

 

June 7, 2018 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Tuesday, June 5, 2018

Shannon on Subject Matter Jurisdiction

Brad Shannon has published Reconciling Subject-Matter Jurisdiction, 46 Hofstra L. Rev. 913 (2018). From the conclusion:

Current subject-matter jurisdiction practice, though well-entrenched, seems upon closer examination to be somewhat indefensible. Changes should be made. Federal Rule of Civil Procedure 8 should be amended to eliminate the pleading of subject-matter jurisdiction. This should help obviate the need to respond to allegations of this nature. Moreover, Rules 12 and 60 should be amended to prevent the assertion of this defense beyond the pleading stage (except in the default judgment context). Such a move would significantly (and appropriately) limit the ability to raise this defense on direct or collateral review. It would, in short, help “secure the just, speedy, and inexpensive determination of every action.” Perhaps more importantly, the practice relating to federal subject-matter jurisdiction would be reconciled with that relating to other “jurisdictional” concepts such as personal jurisdiction and venue, as well as state subject-matter jurisdiction practice, which has avoided many of these problems without incident.

Alas, sound reasoning might not be enough to get the Rules Committee to proceed on some of these matters. Tradition is a powerful thing. Moreover, the fact that the amendments proposed here would, in actuality, have little effect on post-pleading practice, though seemingly a virtue, might actually be a deterrent. Hopefully it will be enough that these amendments would promote simplicity, uniformity, predictability, and avoid unnecessary waste. Exceptions might be unavoidable regardless of which way one goes on these issues, and cases probably will continue to be decided suboptimally. The questions for now relate to baseline presumptions and how best to minimize errors and increase the efficiency of the federal courts.

 

June 5, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, June 4, 2018

Arbitration takes center stage at federal court hearing in Fitbit class action

From Alison Frankel, Fitbit lawyers reveal ‘ugly truth’ about arbitration, judge threatens contempt (Reuters):

At a hearing Thursday in San Francisco federal court, a lawyer for the fitness tracking company Fitbit told U.S. District Judge James Donato that no rational customer would arbitrate a $162 claim against the company. The filing fee for a proceeding before the American Arbitration Association, said William Stern of Morrison & Foerster, is $750 - and that’s just to get the case started. It simply doesn’t make sense, Stern said no fewer than six times at Thursday’s hearing, to arbitrate a $162 claim.

* * *

Thursday’s hearing was supposed to be about the opt-outs’ class action, but Judge Donato quickly homed in on the arbitration controversy. He said Fitbit’s handling of the McLellan arbitration “appears to be an absolutely unacceptable level of gamesmanship” and ordered briefing from both sides on whether Fitbit had engaged in “a form of civil contempt.”

The judge said he had sent the case to arbitration because Fitbit said that’s where it belonged. It is “profoundly troubling,” Judge Donato said, that Fitbit unilaterally decided McLellan’s claim could not be arbitrated because, as he described the company’s position, “We think it’s a cheap case, and we offered her plenty money to get rid of it, and she said no, and she’s crazy as a result of that, so our hands are now tied.’”

(H/T: Bob Klonoff) 

 

 

June 4, 2018 in Class Actions, In the News | Permalink | Comments (0)

SCOTUS Decision in Hughes v. United States: No Guidance on the Marks Rule

Today the Supreme Court issued a 6-3 decision in Hughes v. United States (covered earlier here and here). The dispute between the litigants involved the defendant’s eligibility to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines. Two of the three questions presented in the defendant’s cert petition, however, involved how to determine the precedential effect of Supreme Court decisions with no majority opinion—an inquiry that is typically assessed using the rule from Marks v. United States. Marks played an important role in Hughes because the key Supreme Court decision on the substantive sentencing question—Freeman v. United States—was a 4-1-4 split.

In today’s Hughes opinion, the Court declined to address broader Marks-related issues. From Justice Kennedy’s majority opinion:

To resolve these differences over the proper application of Marks and the proper interpretation of §3582(c)(2), the Court granted certiorari in the present case. 583 U. S. ___ (2017). The first two questions, relating to Marks, are as follows: (1) “Whether this Court’s decision in Marks means that the concurring opinion in a 4–1–4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other”; and (2) “Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman, or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.” Pet. for Cert. i.

The third question is directed to the underlying statutory issue in this case, the substantive, sentencing issue the Court discussed in the three opinions issued in Freeman. That question is: “Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.” Pet. for Cert. ii.

Taking instruction from the cases decided in the wake of Freeman and the systemic concerns that have arisen in some Circuits, and considering as well the arguments of the parties as to question three, a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman.

As to the substantive sentencing question in Hughes, Justice Kennedy writes:

To resolve the uncertainty that resulted from this Court’s divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.

Justice Sotomayor writes a concurring opinion, and Chief Justice Roberts writes a dissenting opinion joined by Justices Thomas and Alito.

 

 

 

June 4, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, June 1, 2018

Hagan on A Human-Centered Design Approach to Access to Justice

Margaret Hagan (Stanford Design Lab) has posted an article entitled "A Human-Centered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Innovation to Make Courts User-Friendly."  Here's the abstract: 

"How can the court system be made more navigable and comprehensible to unrepresented laypeople trying to use it to solve their family, housing, debt, employment, or other life problems? This Article chronicles human-centered design work to generate solutions to this fundamental challenge of access to justice. It presents a new methodology: human-centered design research that can identify key opportunity areas for interventions, user requirements for interventions, and a shortlist of vetted ideas for interventions. This research presents both the methodology and these “design deliverables” based on work with California state courts’ Self Help Centers. It identifies seven key areas for courts to improve their usability, and, in each area, proposes a range of new interventions that emerged from the class’s design work. This research lays the groundwork for pilots and randomized control trials, with its proposed hypotheses and prototypes for new interventions, that can be piloted, evaluated, and—ideally—have a practical effect on how comprehensible, navigable, and efficient the civil court system is."

The article is available at SSRN or at the Indiana Journal of Law and Social Equality

June 1, 2018 in Current Affairs, Recent Scholarship | Permalink | Comments (1)

Kalajdzic on Burch and Fitzpatrick on Class Action Funding and Compensation

Now on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, Questions of Funding and Compensation on the 50th Anniversary of Modern Class Actions. Jasminka reviews articles by Beth Burch, Publicly Funded Objectors19 Theoretical Inquiries in Law 47 (2018), and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, 19 Theoretical Inquiries in Law 109 (2018).

 

 

 

 

June 1, 2018 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Thursday, May 31, 2018

Klonoff on the 2015 Discovery Amendments and Class Actions

Bob Klonoff has posted on SSRN a draft of his article, Application of the New “Proportionality” Discovery Rule in Class Actions: Much Ado About Nothing, which is forthcoming the Vanderbilt Law Review. Here’s the abstract:

The “proportionality” amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs’ bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, the author has reviewed every published judicial opinion (approximately 135) between December 1, 2015, and April 30, 2018, that applies the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. Nonetheless, the results are striking. At bottom, the proportionality amendment has had little impact, at least in the class action context. Courts have generally indicated that the new rule does not fundamentally change the governing principles. In ruling on discovery disputes in class actions, courts continue to conduct nuanced, highly fact-specific analyses, with results that differ little from pre-amendment case law. The courts are especially liberal in allowing discovery that is relevant to class certification. In short, the class action discovery decisions thus far do not support the predictions that the proportionality rule would lead to a sea change.

 

 

 

May 31, 2018 in Class Actions, Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Wednesday, May 30, 2018

Grove on Judicial Independence

Tara Grove has published The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018). Here’s the abstract:

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long-standing norms, federal judges should take none of their current protections for granted.

 

 

May 30, 2018 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, May 29, 2018

Milller on Forsaking the Procedural Gold Standard

Arthur Miller has published What Are Courts For? Have We Forsaken the Procedural Gold Standard?, 78 La. L. Rev. 739 (2018). The article expands on his Alvin and Janice Rubin Lecture at LSU.

 

 

May 29, 2018 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Monday, May 28, 2018

SCOTUS Decision in Epic Systems: Class Action Waivers in Employer-Employee Arbitration Agreements

Last week the Supreme Court issued a 5-4 decision in Epic Systems Corp. v. Lewis. Justice Gorsuch wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. It begins:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. 

Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. Here’s an excerpt from her introductory section:

Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”

In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), 29 U. S. C. §101 et seq., Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).

 

 

 

May 28, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 21, 2018

SCOTUS Grants Cert in Jam v. International Finance Corporation: Immunity for International Organizations

Today the Supreme Court granted certiorari in Jam v. International Finance Corp., limited to the following question:

Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)— confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.

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.

May 21, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)