Friday, December 14, 2012
Mark Brown (Capital University) has posted Serving State Officers in Official-Capacity Actions: Is Mail an Option? to SSRN.
Rule 4 distinguishes service rules for states that are "subject to suit" from those rules that are applicable to individuals. In particular, Rule 4's mail "alternative," which provides incentives to defendants to accept informal service-by-mail, does not apply to state-defendants. Of course, states are ordinarily immune from suit in federal court because of the Eleventh Amendment, meaning they will usually not be subject to suit, let alone service of process. In Constitutional cases, however, states can be yoked into federal court under the fiction of Ex parte Young. Suits seeking prospective relief (as opposed to money damages) are not prohibited by the Eleventh Amendment (or the modern interpretation of 42 USC 1983) because they are not (wink, wink) suits against states. Given this fiction, the question I explore is how service should proceed in an Ex parte Young action. Should the state officials be served as individuals or as states. If the former, then mail is an option. If the latter, it is not under Rule 4. My thesis is that state officials in these cases must be served as individuals, which not only changes the basic mechanics of service, but also makes mail an option. The Circuits are presently split over this issue.
Thursday, December 13, 2012
A new Case Note posted by the ABA Class Action & Derivative Suits Committee:
Judge Posner's opinion in Johnson v. Meriter Health Services Employee Retirement Plan, No. 12-2216 (7th Cir. Dec. 4, 2012), focuses on one question arguably left open by Wal-Mart Stores v. Dukes – what kind of incidental monetary relief may be certified in a Rule 23(b)(2) case? The Court affirmed the class certification order in this ERISA class action, concluding that the variations and the complexity of the claims did not destroy commonality because the claims of each sub-class were homogeneous. The Court also noted that the Supreme Court's holding that damages could not be sought in a Rule 23(b)(2) action was limited to “monetary relief [which] is not incidental to
the injunctive or declaratory relief.” Here, the plan participants were permitted to seek monetary relief incidental to the declaration of their rights under the subject pension plan. The Court also provided detailed guidance as to calculating this incidental monetary relief where the plaintiffs' claims might require an evidentiary hearing, including certification of a Rule 23(b)(2) class with notice and opt out, bifurcated certification, or damage calculations via a computer program.
Submitted by Jocelyn Larkin, Impact Fund
- Walter Dellinger, No Harm, No Standing (Slate)
- Linda Greenhouse, Standing and Delivering (N.Y. Times)
“The Public Life of the Private Law: The Logic and
Experience of Mass Litigation”
A Conference in Honor of Richard A. Nagareda
Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program. “The Public Life of Private Law: The Logic and Experience of Mass Litigation” Conference will be held on September 27 and 28, 2013, at Vanderbilt and is jointly sponsored by the Branstetter Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media. Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas).
Junior scholars are invited to submit paper proposals for the conference by February 15. More details in the full announcement, linked below:
Tuesday, December 11, 2012
Today the Supreme Court issued an order in United States v. Windsor (docket no. 12-307) appointing Prof. Vicki Jackson (Harvard) “to brief and argue this case, as amicus curiae, in support of the positions that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of Representatives lacks Article III standing in this case.”
For more coverage, check out Lyle Denniston (SCOTUSblog).
Monday, December 10, 2012
We covered earlier the additional questions the Supreme Court asked the parties to brief in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307), especially on the issue of Article III standing. Here’s some recent coverage of those issues:
- Prawfsblawg, by Howard Wasserman (Florida International)
- SCOTUSblog, by Neal Devins & Tara Grove (William & Mary)