February 10, 2012
SALT Teaching Conference, University of Maryland, Oct. 4-6: Call for Panels & Papers
The Society of American Law Teachers (SALT) is holding its Teaching Conference on October 4-6, 2012, in Baltimore. The conference includes the 10th Annual LatCrit-SALT Junior Faculty Development Workshop.
The theme is Teaching Social Justice, Expanding Access to Justice: The Role of Legal Education & the Legal Profession. SALT’s Call for Panels & Papers is available here (deadline March 30, 2012).
(Hat Tip: Brooke Coleman)
Thomas on Nonincorporation
Prof. Suja Thomas (Illinois) has posted on SSRN a draft of her article Nonincorporation. Here’s the abstract:
Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Court recently held that the Second Amendment right to bear arms, which the Court previously had decided was not incorporated, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided were not incorporated that remain not incorporated.
After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation — that a right is not fundamental — or, it could be, that the Court has not incorporated rights for some other reason.
This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court’s theory on selective incorporation more justifiable.
February 9, 2012
In case you were wondering what ever happened to the complaint filed by five killer whales (represented by PETA) alleging that Sea World was subjecting them to slavery in violation of the 13th Amendment, it was just dismissed. The district court in San Diego held that "the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas."
So corporations are people, but killer whales are not.
Hat tip to Huff Post Green; the article is here.
February 8, 2012
Easterbrook Sets Lawyers Straight (Again)
In a typically acerbic (but kind of funny) opinion, Judge Easterbrook again raised the issue of diversity jurisdiction at oral argument, which was apparently the first time the parties had considered it.
When we raised this issue at oral argument, counsel for
both sides were surprised to learn that “citizenship” for
the purpose of 28 U.S.C. §1332 depends on domicile
rather than residence.
The removing party, Northrop, then complied with the court’s order to amend its removal petition to properly allege citizenship. Nonetheless, Judge Easterbrook chided:
Jurisdiction should be ascertained before filing suit
in federal court (or, as here, removing a suit to federal
court). Counsel have wasted the court’s time, and their
clients’ money, by postponing essential inquiries until
after the case reached the court of appeals. That strategy
often leads to a jurisdictional dismissal and the need to
start over in state court. Why take that risk? Lawyers
have a professional obligation to analyze subject matter
jurisdiction before judges need to question the
On the merits, the court affirmed the district court’s dismissal of the suit on the grounds that a contract between the parties compelled arbitration of their dispute.
Judge Easterbrook then denied Northrop’s (appellee’s) request for sanctions on appeal – although the court agreed the appeal was frivolous – because Northrop had failed to follow proper procedures:
Northrop contends that the appeal is frivolous—which
it is—and asks for sanctions. The request is in Northrop’s
appellate brief. But Fed. R. App. P. 38 provides that a
litigant seeking sanctions must request them in a “separately
filed motion”. And this court is not inclined to
award sanctions in favor of a party that cannot be
bothered to follow the rules itself. Morgan, Lewis &
Bockius, LLP, which represents Northrop, should be
able to tell the difference between residence and
domicile, and should not have any difficulty complying
with Rule 38.
Two weeks after oral argument, on the same day it
filed its amended notice of removal, Northrop filed a
separate motion for sanctions. This comes too late. If we
were seriously considering sanctions, we could have
initiated the process ourselves promptly after oral argument
(if not before). There is little point to requesting
sanctions twice, once in a brief and again by motion,
and the duplication can cause both confusion and extra
work for everyone. Rule 38 permits a court of appeals
to award sanctions, after giving notice and an opportunity
to respond, whether or not a litigant files a
separate motion. Our Practitioner’s Handbook for Appeals 45
(2003 ed.) tells counsel that the court may elect to
issue such a notice if a brief requests sanctions. See also
Greviskies v. Universities Research Association, Inc., 417 F.3d
752, 760–61 (7th Cir. 2005); In re Bero, 110 F.3d 462 (7th
Cir. 1997). Unless the court gives notice, however, an
adverse litigant is free to ignore a request made in
a brief. Likewise an adverse litigant can safely ignore a
post-argument motion for sanctions, unless the court
calls for a response.
Many thanks to Shaun Shaughnessy for posting this case on the Civil Procedure listserv.
Proliferation of Local Rules, Judge-Specific Rules Reported
The ABA “Litigation News” has a brief article entitled “Does Federalism Work for the Federal Rules?” available here.
February 6, 2012
Zimmerman and Sant'Ambrogio on the Agency Class Action
Adam Zimmerman (St. Johns) and Michael Sant'Ambrogio (Michigan State) have posted The Agency Class Action to SSRN.
The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.
Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.
We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.