April 6, 2007
Reinventing Appellate Jurisdiction
Appellate jurisdiction in the federal system is a mess. The current regime has been properly criticized for both its doctrinal incoherence and its procedural complexity, and the Supreme Court has failed to address these problems despite a consistent diet of cases raising issues of appellate jurisdiction. While the critiques of the current regime are well-founded, this Article reveals that as applied in practice, federal appellate courts have drawn sensible lines between interlocutory orders that are immediately subject to appellate review and those that are not. There is a limited category of interlocutory orders (primarily orders rejecting governmental and other immunities from suit) that are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review, although such review is sparingly exercised. The doctrinal morass of the present framework - principally the collateral order doctrine and appellate mandamus - has obscured this basically sensible structure, and has led to unnecessarily complex and inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime's pragmatic structure without its conceptual, doctrinal, and procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that this is a superior method for engaging in discretionary appellate review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, section 1292(a)'s provision of appellate jurisdiction over orders relating to injunctions provides a more coherent doctrinal foundation than the collateral order doctrine's awkward interpretation of the term final decision under section 1291.
April 5, 2007
The Thursday Interview: Judge Lee H. Rosenthal
Click the link at the bottom of the post to listen to this week's installment of the Thursday Interview. This week's interview is with Judge Lee H. Rosenthal about the new federal rules on electronic discovery, which took effect on December 1, 2006. Judge Rosenthal is a United States District Judge for the Southern District of Texas and is the Chair of the Judicial Conference Advisory Committee on Civil Rules. Judge Rosenthal recently authored a seven-part series for the Yale Pocket Part on the new rules, which we featured here. She was kind enough to speak with us yesterday about "one of [her] favorite topics in the world." Many thanks to Judge Rosenthal for a great interview.
April 4, 2007
Sorry, FDR, but I fear fear
When you ask a question of a student, what kind of answer do you want? When I first started teaching just four years ago, I would have replied, "the correct answer, of course." Now, I say, "I want an answer that's wrong in a helpful way." The process of bringing the student from helpfully wrong to precisely right is, in my opinion, more valuable to the rest of the class than hearing the correct answer from a student the first time you ask the question. I can't give you a precise definition of "helpfully wrong," except to say that such an answer is usually the product of a talented student's valiant struggle with difficult and unfamiliar material.
Of course, the helpfully wrong answer is not the only kind of wrong answer. There's also what I call the "grinding halt" answer, named for what it does to the class. That's the answer where other students (ordinarily sympathetic to the person being questioned) do one or more of the following: turn and stare at the answering student, sigh loudly, bury their face in their hands, and/or roll their eyes. The grinding halt answer is the one that makes me wonder if I've just called upon a college freshman who got lost on the way to his American History seminar. It's the answer that flies in the face of every CivPro concept, rule, and doctrine with which the student ought to be familiar. As often as not, the grinding halt answer is a product of the student's fear of being called on, not a lack of aptitude or preparation.
Most students feel some anxiety the first time they are called on, but every so often I find a student who is paralyzed by fear. As a teacher, I struggle with this issue. I fear this fear. On the one hand, the student's anxiety at being called on may have no affect on test performance. On the other hand, isn't the paralyzing fear going to be a bigger problem for the student than not knowing some detail of the law of procedure?
April 3, 2007
Yesterday, in Ambrosia Coal v. Morales, the Eleventh Circuit held that a subsidiary's assignment of a claim to its parent does not give rise to a presumption of collusion under section 1359, at least where the assignee has "business purposes beyond the litigation of the assigned claims and is the real party in interest."
The opinion is worth mentioning here based on the importance of the holding, but it caught my attention for an entirely different reason. To support the notion that the motives of a transfer are irrelevant in determining whether an assignment is collusive, the Eleventh Circuit cites the Supreme Court's opinion in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.--the case you probably cover between Swift and Erie in your Civil Procedure class.
This citation struck me as extremely odd because, in Erie, I see the Supreme Court saying "mea culpa" for Swift, and the Court uses the Taxicab case to illustrate the extent of its culpa. The Taxicab case certainly does (or at least did) support the proposition for which the Eleventh Circuit cites it, but using the Taxicab case in such a way, to me, is like writing an opinion with a skeleton from the Supreme Court's closet. --Counseller
April 2, 2007
Massachusetts v. EPA
Today the Supreme Court decided Massachusetts v. EPA, holding that Massachusetts (because it's a State and all) gets to play by special Article III rules. Professor Jonathan H. Adler provides a thoughtful review here, which is titled after the following cites-removed passage from the Chief Justice's dissent:
Today’s decision recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP). SCRAP involved “[p]robably the most attenuated injury conferring Art. III standing” and “surely went to the very outer limit of the law”—until today. In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area,resulting in increased refuse that might find its way into area parks, harming the group’s members.
Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation.