Saturday, March 3, 2012
Thursday, March 1, 2012
Lumen Mulligan (University of Kansas Law School) has posted You Can't Go Holmes Again to SSRN.
Under the standard interpretation of 28 U.S.C. § 1331, the so-called Holmes Test, pleading a federal cause of action constitutes a sufficient condition for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, re-characterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this right-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights and Justice Holmes’ overall “bad man” jurisprudential position. I argue further that Mims’ rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which pass legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.
Wednesday, February 29, 2012
Today, the Supreme Court issued its decision in Kurns v. Railroad Friction Products, covered earlier here. Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Kagan. Justice Kagan filed a separate concurring opinion as well.
Justice Sotomayor wrote an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Ginsburg.
Justice Thomas’s majority opinion begins:
This case requires us to determine whether petitioners’ state-law tort claims for defective design and failure to warn are pre-empted by the Locomotive Inspection Act (LIA), 49 U. S. C. §20701 et seq. The United States Court of Appeals for the Third Circuit determined that petitioners’ claims fall within the field pre-empted by that Act, as that field was defined by this Court’s decision in Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926). We agree.
Tuesday, February 28, 2012
The Wall Street Journal reports that a news station, WOIO 19 is covering one of Ohio's biggest corruption trials using puppets in a show called The Puppet's Court. Because cameras are not allowed in the courtroom, reporter Kirk Maynard reenacts bits of testimony and trial with scenes like this:
According to the WSJ,
The result is a cross between "The Sopranos" and "The Muppet Show" that has elicited some complaints from viewers and hand-wringing from journalism professors. But since the trial began in January, "The Puppet's Court" has led a ratings surge for the station's late news show and won praise from some politicians.
I, personally, think it is one of the funniest things I've ever seen, and a genuinely creative response to some of the absurdities of American courts. Perhaps next year I'll allow my students to perform a puppet show in lieu of the final exam.
Lots of coverage on Kiobel v. Royal Dutch Petroleum, which is being argued today:
- Kenneth Anderson (Volokh Conspiracy)
- Lyle Denniston (SCOTUSblog)
- Jonathan Hafetz (ABA Preview)
- Julian Ku (Point of Law)
- Juan Mendez (Opinio Juris)
- David Savage (Los Angeles Times)
- Nina Totenberg (NPR)
- Peter Weiss (New York Times)
- David Weissbrodt (Point of Law)
- Stephen Wermiel (SCOTUSblog)
One issue that isn’t squarely raised by the questions presented is whether the Alien Tort Statute applies to claims brought by one alien against another (as in Kiobel). Amanda Frost’s Academic Round-up for SCOTUSblog covers an essay by Anthony Bellia and Bradford Clark, which argues that the Alien Tort Statute applies only to claims brought by an alien against a U.S. citizen. Marco Simons has a response on Concurring Opinions.
Monday, February 27, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Lonny Hoffman (Houston) entitled A Modest Proposal on Preservation. It reviews an article by Prof. William Hubbard (Chicago), Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero.
Magistrate Judge Peck has issued an opinion in Moore v. Publicis Groupe, 11 Civ. 1279, permitting the use of computer assisted discovery in an employment discrimination class action pending in the S.D.N.Y. The protocol will use trainable computer programs and a "seed set" of data coded by lawyers to engage in predicitve coding of a large number of documents.
The opinion is notable not only for the ruling itself, but for the lucid descriptions of computer assisted discovery methods and how they may or may not apply to situations beyond the case at hand.
More coverage is available at Law Technology News.
Now available from the ABA is a preview by Prof. Jonathan Hafetz (Seton Hall) of Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. At issue in these cases (as covered earlier here) is whether corporations, organizations, and other defendants that are not natural persons may be sued under either the Alien Tort Statute or the Torture Victim Protection Act. They will be argued in tandem tomorrow.
Sunday, February 26, 2012
The first phase of the trial was supposed to begin tomorrow before Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. It's been delayed until March 5. Story by Rebecca Mowbray of the Times-Picayune here.