Saturday, October 17, 2009

Obama is criticized and praised for his federal judicial appointments

A Washington Post article outlines criticism of President Obama based on the slow rate of judicial appointments.  In his first nine months in office, Obama has appointed 23 judges; Bush had appointed 95 during that same period in his presidency.  In addition, only 3 of Obama's 23 judicial picks has been confirmed.  The Post article posits that Obama's desire to ease partisan fights over judicial nominees has led to a failure to advocate strongly enough on behalf of his nominees against Republicans. Meanwhile, about 90 judicial seats remain empty (that is about 10% of the total).

In addition, Carl Tobias posted an essay in the National Law Journal praising Obama for increasing diversity in the federal court through his nominations. Tobias says:

Obama has adopted measures that will increase ethnic and gender diversity, as manifested in his judicial nominations to date. Justice Sonia Sotomayor is the classic example. Moreover, his 10 appeals court nominees include three African-Americans, one Asian-American and four women, while his 10 district court nominees include four African-Americans, three Asian-Americans, one Latino and four women.


October 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, October 16, 2009

Prof. Wasserman on "When Ricci Met Iqbal"

Professor Howard Wasserman (Florida International) has a very interesting post over at PrawfsBlawg on a potential relationship between the Supreme Court's decisions in Ricci and Iqbal last Term.

The Ricci case is back in the news because an African-American New Haven firefighter has filed a lawsuit under Title VII challenging the same exam that was at issue in Ricci. Readers will recall that the Supreme Court's Ricci decision was based in part on the majority's skepticism that New Haven would have been liable in a Title VII disparate impact lawsuit if it had used the results of the exam to make promotion decisions. Prof. Wasserman observes that the Court's logic in Ricci might be relevant to whether the claim filed last week will survive the "plausibility" prong of Iqbal:

There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason.

See the entire post here.

The complaint in the newly filed case is available here.


October 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 15, 2009

Waller, Siegel and Lahav on Teaching Civil Procedure

Over at the Mass Torts Litigation Blog, Alexandra Lahav has joined the debate started at Concurring Opinions by Spencer Waller (here) and Jonathan Siegel (here) about the role of theory and practice in teaching civil procedure.

Each of these posts explore the merits and drawbacks of focusing primarily on rules, or teaching a more in-depth look at jurisdiction, particularly personal jurisdiction.


October 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Academic Freedom & the Courts

Professor Amy Gajda (University of Illinois law & journalism) has published a new book "The Trials of Academe," about the erosion of so-called "academic abstention," the unformalized doctrine under which courts hesitated to second-guess academic institutions' policy decisions (such as tenure and promotions, admissions, grading policies, etc.) and tended to summarily dismiss suits challenging academic policy decisions.  Professor Gajda's book chronicles the increase in litigation regarding campus disputes and the increasing willingness of courts to entertain such cases, and discusses the negative impact the increase in such suits has had on the academic freedom of universities and their faculties.

Also, check out Professor Stanley Fish's (Florida International University School of Law) review of Professor Gajda's book in a New York Times op-ed entitled "The Rise and Fall of Academic Abstention."


October 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Three Justices issue statement in denying class-action cert. petition

Among the many cases for which the Supreme Court denied certiorari this week was DTD Enterprises Inc. v. Wells (No.08-1407). Our readers may be interested in a statement that Justice Kennedy issued in the case (joined by Chief Justice Roberts and Justice Sotomayor). Although he agreed with the denial of certiorari, Justice Kennedy wished to "notethat the petition for certiorari does implicate issues of constitutional significance."

A New Jersey trial court had certified a class action against a commercial dating referral service and ordered that the dating service bear all costs of class notification "on the sole ground (or so it appears) that petitioner could afford to pay and respondent could not." Justice Kennedy's statement expressed the following concern:

To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised. Where a court has concluded that a plaintiff lacks the means to pay for class certification, the defendant has little hope of recovering its expenditures later ifthe suit proves meritless; therefore, the court’s order requiring the defendant to pay for the notification “finally destroy[s] a property interest.” Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-34 (1982). The Due Process Clause requires a “‘hearing appropriate to the nature of the case.’” Boddie v. Connecticut, 401 U. S. 371, 378 (1971). And there is considerable force to the argument that a hearing in which the trial court does not consider the underlying merits of the class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.

Justice Kennedy's statement is available here, on Westlaw (2009 WL 3255157) or on Lexis (2009 U.S. Lexis 7158)

For additional coverage, see here.


October 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 14, 2009

Filing of patent subjects Canadian firm to 4(k)(2) personal jurisdiction

The Federal Circuit recently decided Touchcom, Inc. v. Bereshkin & Parr, 574 F.3d 1403 (Fed. Cir. 2009). 

In this case, a Canadian law firm's sole contact with the United States was the filing of a patent application.  The law firm prosecuted a patent for Touchcom that was later held by a Texas district court to be invalid.  Touchcom sued Bereshkin & Parr for legal malpractice in the Eastern District of Virginia (which includes Alexandria, the location of th
e federal Patent and Trademark Office).  The district court dismissed the case for lack of personal jurisdiction. 

The Federal Circuit overturned the district court, holding that there were no contacts with Virginia in particular, since contact was limited to the patent filing and subsequent long-distance communications.  The filing of a patent did, however, subject the defendant to jurisdiction under the "nationwide aggregate contacts" Federal Rule of Civil Procedure 4(k)(2).

Additional coverage here and here.


October 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Discovery & Academic Freedom

The Chronicle of Higher Education reports here on a tobacco suit in which the defendant R.J. Reynoldss's lawyers are seeking discovery of a Stanford professor's unfinished, unpublished manuscript of a book on the tobacco industry.  Professor Robert Proctor, the author, has refused to produce the manuscript, claiming that the book ought not be discoverable until it is in final form.  "They can see it when it's finished,' he said, and he claimed that release of the unfinished manuscript, which contains his "private thoughts," would "cause damage to [his] professional credibility and professional standing as this manuscript is a work-in-progress and does not represent completed and fact-checked research."

(Hat Tip to Marjorie Silver)


October 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 13, 2009

Birther sanctioned under Rule 11

Birther Orly Taitz was ordered by Judge Clay Land of the United States District Court for the Middle District of Georgia to pay $20,000 in sanctions under Rule 11 for filing a frivolous case.  In a detailed opinion, Judge Land stated that "a clearer case [for sanctions] could not exist; a weaker message would not suffice."  

Judge Land's opinion and order is here.


October 13, 2009 | Permalink | Comments (1)

Cert. Grant in Case Involving Complete Preemption and Federal Officer Removal

Today the Supreme Court granted certiorari in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). BNA reports that the questions presented are:

(1) Does the Federal Employee Health Benefits Act, 5 U.S.C. §§ 8901-14, completely preempt--and therefore make removable to federal court--a state suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA?

(2) Does the federal officer removal statute, 28 U.S.C. § 1442 (a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] ... office," encompass a suit against a government contractor administering a FEHBA plan, when the contractor is sued for actions taken pursuant to the government contract?

The Seventh Circuit's per-curiam opinion (Easterbrook, Rovner & Evans) held that further proceedings were necessary to determine whether federal officer removal was proper. On the complete preemption issue, it reasoned:

Preemption is a defense, and a federal defense does not allow removal. Things are otherwise for "complete preemption," the misleadingly named doctrine that applies when federal law has occupied a field, leaving no room for any claim under state law. "Complete preemption" is not a defense; instead it represents a conclusion that all claims on the topic arise under federal law, so that 28 U.S.C. § 1441 permits removal. But EmpireHealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), holds that federal law does not completely occupy the field of health-insurance coverage for federal workers. Empire HealthChoice shows that the district court erred in allowing removal under § 1441 and dismissing the suit as completely preempted.

558 F.3d at 616 (some citations omitted).

The Supreme Court's docket for the case is here. For additional coverage, see SCOTUS Blog.


October 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Civil Procedure Dominates SCOTUS Argument in Major Establishment Clause Case

Salazar v. Buono (No. 08-472) involves an Establishment Clause challenge to a cross erected as a war memorial in the Mojave National Preserve in California. Last week's oral argument garnered considerable attention, especially for some of the exchanges with Justice Scalia about the merits of the Establishment Clause issue (during which "Justice Scalia grew visibly angry" according to the New York Times). But the argument focused on civil procedure, in particular, the potentially preclusive effect of an injunction that had been issued in prior litigation over the cross. Dahlia Lithwick of Slate described the argument as "a protracted civil-procedure exam question."

The oral argument transcript is available here.

For additional coverage of the argument, see ABA Journal, ACSblog, Faculty Lounge (Prof. Kathleen Bergin), FindLaw (Prof. Vikram Amar), PrawfsBlawg (Prof. Paul Horwitz), and SCOTUS Blog.

SCOTUS Blog's wiki on the case is here.


October 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, October 12, 2009

Comparative and International Scholarship Roundup

Here are a few recent articles posted to SSRN that address civil procedure and/or federal courts issues from a comparative and international perspective.

Amalia Kessler (Stanford Law School), Marginalization and Myth: The Corporatist Roots of France's Forgotten Elective Judiciary

Helena Gluzman (University of Toronto), On Universal Jurisdiction - Birth, Life and a Near-Death Experience?

Joanna Kulesza (University of Lodz Faculty of Law and Administration), Internet Governance and the Jurisdiction of States: Justification of the Need for an International Regulation of Cyberspace

Cormac S. MacAmhlaigh and Andrew R. Glencross, Sovereignty in the EU Constitutional Order: Integrating Law and Political Science

Abstracts after the jump.


Continue reading

October 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Article of Interest: Redish, Julian & Zyontz on Cy Pres Relief in Class Actions

Professor Martin Redish (Northwestern), Peter Julian (Northwestern) and Samantha Zyontz (Searle Civil Justice Institute) have a forthcoming article in the Florida Law Review that may be of interest to our readers. The article is Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, and it can be accessed either at Northwestern's website or via SSRN.

Here's the abstract:

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class actions, courts have utilized the doctrine as a means of disposing of unclaimed class wide relief. Where a substantial portion of the fund is likely to go unclaimed by absent class members, courts either order or authorize the payment of all or part of the remaining funds to a charitable interest that has some connection - however loose - to the subject matter of the suit. In recent years, use of cy pres in federal class actions has increased dramatically.

Use of cy pres in class actions has largely escaped either judicial or scholarly scrutiny or critique. This is unfortunate, since the doctrine’s use distorts the class action in a manner that undermines the inherently adversary nature of the federal adjudicatory process and the inherently compensatory nature of the underlying substantive law being enforced in the class proceeding. At the same time, resort to cy pres threatens the due process rights of both defendants and absent class members. It achieves these pathological ends by creating an illusion of victim compensation through adversary adjudication when in reality it transforms the underlying law into the forced payment of the equivalent of a civil fine to an entity that has no legitimate interest in the proceeding and has suffered no injury at the hands of the defendants.

In this article, we initially explore the history and current use of cy pres relief in the modern class action. We then explain - for the first time ever in legal scholarship - why the doctrine’s use so seriously undermines norms that are central both to our constitutional system and to American democracy. We then conduct a detailed empirical examination of the available data concerning the use of cy pres relief in class actions. Our empirical analysis underscores our normative critique of the doctrine by highlighting both its rapid expansion and the manner in which it has been abused.

For a video of Professor Redish discussing the paper, see here.


October 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Alfieri on Discovering Identity in Civil Procedure

Professor Anthony V. Alfieri (Miami) has posted "Discovering Identity in Civil Procedure," which will be published in the Southern California Law Review.


This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn’t believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs or rather reconstructs identity - both race and gender - from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in the twentieth century American history of racial and gender identity occurring initially when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.” 

During these moments, she notes, the forum for the “determination” of racial identity moved to the local courthouse, “a key arena through-out the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of a courthouse and the “legal case” at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.” Because of its cultural import, Gross argues, “law has been a crucial institution in the process of creating racial meaning at every level.” Both trials and trial transcripts, she observes, disclose “glimpses of ordinary people’s, as well as lower-level legal actors’ understandings of legal and racial categories and of their own places in the racial hierarchy.” Race trials, Gross emphasizes, “brought to the surface conflicting understandings of identity latent in culture, and brought into confrontation everyday ways of understanding race with definitions that fit into the official, well-articulated racial ideology that supported the maintenance of slavery and post war racial hierarchy.” Witnesses, lawyers, and litigants entangled in this cultural conflict “learned to tell stories that resonated with juries” and judges; in doing so, they actively participated in “the day-to-day creation of race.” 

This Essay extends Gross’s historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Gross’s analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Norelus’s civil rights case. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.


October 12, 2009 | Permalink | Comments (0)

Sunday, October 11, 2009

Sharpe on Service of Process and Venue

Jamelle Sharpe (University of Illinois College of Law) has posted Beyond Borders: Disassembling the State-Based Model of Federal Forum Fairness on SSRN.

Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long been a limiting principle in the exercise of federal judicial power. Rules governing federal service of process and venue play a critical role in providing this protection, as they are the initial means by which plaintiffs select the place of trial. Surprisingly, the courts and the academy have expended comparatively little analytical energy to analyze how well these rules protect defendants from litigating in unfair locations. Utilizing first principles of rule precision and information analysis not previously applied in this context, this Article asserts that the rules governing federal service of process and venue largely fail in this task. By focusing on the connections between the defendant and the state in which the federal district court sits, venue and service of process rules call for limited information that ultimately provides a poor proxy for federal forum fairness. The crudeness of this proxy could more easily be excused if it provided a substantial benefit in the form of administrative simplicity. Unfortunately, the current regime is nothing if not baroque, consisting of a maze of rules, tests, and standards that elicit information which is, ultimately, a highly imprecise approximation of a defendant’s ability to litigate in a particular location. Though perfection is impossible, we can certainly do better. Accordingly, courts and scholars should end their attempts to refine the current tests in the hopes of better scrutinizing suboptimal information. Instead, this Article proposes both a reevaluation of the information used to determine forum fairness, and a reassessment of whether courts or litigants are in the best position to optimally use this information.


October 11, 2009 | Permalink | Comments (0) | TrackBack (0)