Thursday, April 14, 2011
Providing a Venue: DDC Opinion Raises Specter of No Proper Venue for Plaintiffs Seeking Declarations of Citizenship Based on Circuit Split
Circuit splits are always troubling because they can lead to inequitable results in different jurisdictions. For instance, in a recent post, I noted that there is a circuit split over whether to apply the first- or last-served rule for removal, which means that defendants in jurisdiction A might be able to remove a case from state court to federal court while defendants in jurisdiction B would be stuck in state court. But at least these latter defendants could have their case heard in some court. The recent opinion of the United States District Court for the District of Columbia in Roman-Saldago v. Holder, 730 F.Supp.2d 126 (D.D.C. 2010), however, raises the specter of a different circuit split leaving some cases in which plaintiffs cannot have their cases heard in any court. If this is correct, the Supreme Court should step in immediately and resolve the split.
Wednesday, April 13, 2011
Jotwell, the Journal of Things We Like (Lots), is intended to provide a space where legal scholars can go to identify and celebrate the latest work of their colleagues. The goal is to help Jotwell’s readers locate interesting developments both inside and outside of their particular areas of interest and to encourage positive reviews and discussion of legal scholarship.
The first contribution for the Courts Law section is Evidence Meets Civil Procedure by Howard Wasserman (Florida International). Howard's essay discusses the recent article by Michael Pardo (Alabama), Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C. L. Rev. 1451 (2010). Watch for contributions in the coming months from the roster of Courts Law editors, after the jump:
Under Federal Rule of Civil Procedure 4(k)(1)(B) Federal Rule of Civil Procedure 4(k)(1)(B), the so-called "bulge rule,"
Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant...
who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued....
After looking for a while for a good case to explain this "bulge rule" to students, I finally came across Tatar v. Levi, 2010 WL 3740610 (D.N.J. 2010), in which the United States District Court for the District of New Jersey applied Rule 4(k)(1)(B) in part because it found that "this case is not a ping pong ball to be batted back and forth between the Eastern District of Pennsylvania and the District of New Jersey."
Tuesday, April 12, 2011
Professor Nathan Oman (William & Mary) has posted on SSRN a draft of his article The Honor of Private Law. Here’s the abstract:
While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.
(Hat Tip: Concurring Opinions)
Monday, April 11, 2011
We covered earlier the symposium at Pepperdine on the most maligned decisions in Supreme Court history. Professor Suzanna Sherry (Vanderbilt) has posted on SSRN a draft of her contribution to that symposium, entitled Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time. Here's the abstract:
This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the usual suspects.
I begin, in Part I, by setting out the three criteria that I believe must be satisfied for a decision to qualify as the worst of all time. I also explain briefly why each of the usual suspects fails to meet one or more of those criteria. The heart of the essay is Part II, examining in detail how Erie satisfies each of the three criteria. I close with some concluding thoughts on the surprising relationship between Erie’s flaws and those of the other suspects.
Complete Disconnect: Does It Make Sense To Apply A Due Process-Based Personal Jurisdiction Test to Aliens?
I recently read a couple of interesting opinions, and a juxtaposition of the two raises a thought-provoking question, one addressed by Austen L. Parrish in his excellent article, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, 41 Wake Forest L. Rev. 1 (2006). The first of these was Doe v. United States, 95 Fed.Cl. 546 (Fed.Cl. 2010), in which the United States Court of Federal Claims concluded that an Iraqi plaintiff did not have standing to raise, inter alia, a Fifth Amendment takings claim based upon occupation of his home by the U.S. military because he did not have substantial connections to the United States. The second of these was GSS Group Ltd. v. National Port Authority, 2011 WL 1195775 (D.D.C. 2011), in which the United States District Court for the District of Columbia concluded that it could not exercise personal jurisdiction over a Liberian defendant because it lacked sufficient minimum contacts with the United States. So, can these two opinions be reconciled?