Friday, September 9, 2011
Professors Rory Ryan, Luke Meier, and William Counseller (Baylor) have posted on SSRN a draft of their article, Interlocutory Review of Orders Denying Remand Motions. Here’s the abstract:
When can an appellate court review a district court’s denial of a remand motion before a final judgment? Surprisingly little has been written on this topic, especially compared to how much has been written on the review of a district court’s grant of a remand motion. But recent developments in the Fifth Circuit, including a case in which we participated as amicus, provide a fine case study for addressing these questions. Our goal here is to guide judges and lawyers in answering the opening question. Our short answer is that a remand denial is not inherently different than the typical interlocutory ruling, and therefore a party must follow the ordinary appellate methods prescribed by Congress: either await final judgment or obtain certification under 28 U.S.C. § 1292(b). Mandamus review is generally unavailable because the petitioner has an adequate remedy by appeal. Neither the time, hassle and expense of enduring trial, nor the possibility that the appeal might ultimately prove unsuccessful, render the appellate remedy inadequate.
Thursday, September 8, 2011
Widgets are identical; snowflakes are unique. Quick: are lawsuits widgets or snowflakes? I'd be interested to hear people's immediate, visceral answers; I’m betting the answers would be, in order of frequency: (1) "both," (2) "snowflakes," and (3) "widgets."
One's immediate answer no doubt depends on what aspects of lawsuits quickly came to mind. Lawsuits, clearly, have both widget-like and snowflake-like qualities. Procedure can perhaps be thought of as an ongoing attempt to widgetize the parts of disputes that can sensibly be widgetized. Of course, what can be sensibly widgetized, and how, is no easy question. (An alternate title for this post might have been "Willy Wonka on Procedure.")
The metaphor is far from perfect and a bit silly, but I raise it because the first few classes of civil procedure with 1Ls always remind me that many if not most incoming students think of lawsuits and judging as almost purely snowflake enterprises. Some students have literally no conception of what civil procedure is; they have a sense that civil judges are essentially justice-givers empowered to resolve disputes through whatever processes are just. My pet theory for why this is -- a theory I've caringly nurtured by doing absolutely nothing to seek evidence confirming or refuting it -- is that people do not think naturally think of process, and in fact resist doing so, for a whole host of reasons. This disinclination remains even though most people are quite aware that throughout their lives much of what they have done has been mediated by some sort of externally-imposed process. And so -- comes now the point -- one of the pleasures of teaching civil procedure is seeing students slowly learn the importance of process. While still appreciating snowflakes.
The Fourth Circuit has held that it will not hear a challenge to the constitutionality of the individual mandate because it lacks jurisdiction under the Anti-Injunction Act. In a companion case, the court held that the state of Virginia lacks standing to sue to challenge the mandate. opinion is here courtesy of the BNA. More summaries of coverage to follow.