March 14, 2013
Goldberg on Article III standing in the SCOTUS same-sex marriage cases (Perry and Windsor)
The University of Pennsylvania Law Review Online has a featured essay by Suzanne B. Goldberg (Columbia) entitled Article III Double-Dipping: Proposition 8's Sponsors, BLAG, and the Government's Interest. It begins:
A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act in the name of the Bipartisan Legal Advisory Group. Not only are these parties not clearly authorized by the appropriate legislative bodies to pursue such actions, but there are two more fundamental difficulties with the Perry petitioners’ and BLAG’s claims to standing. First, each presents the Article III double-dipping problem to which this Essay’s title refers. The problem arises because there are parties asserting the government’s interest and, therefore, the government’s standing, on both sides of each case. The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government’s standing derives from its interest in enforcing its laws, which is not an interest shared by either group. In this essay, I argue that both the double-dipping problem and the limits on a government’s ability to transfer its standing to private actors in this context leave Proposition 8’s sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the “concrete and particularized” stake it would need to have standing in its own right rather than on the government’s behalf. In short, neither party can answer the Supreme Court’s question in the affirmative.
March 13, 2013
Erbsen on Cheng on Aggregate Litigation and Sampling
Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen (Minnesota) entitled Seeking Accuracy in Aggregate in Litigation. It reviews a recent article by Edward Cheng (Vanderbilt), When 10 Trials Are Better Than 1000: An Evidentiary Perspective on Trial Sampling, 160 U. Pa. L. Rev. 955 (2012).
March 12, 2013
2012 Annual Report on Federal Courts Released
The Administrative Office of the United States Courts has just released its 2012 Annual Report of the Director. This report contains detailed statistics for all federal courts for the fiscal year ending September 30, 2012.
As reported earlier here, civil case filings fell 4% to 278,442, with cases involving diversity jurisdiction falling 15% from the previous year.
March 11, 2013
Stanford Journal of Complex Litigation: Call for Articles and Peer Reviewers
See announcement below:
The Stanford Journal of Complex Litigation is seeking articles for Volume 2 of the Journal. The Journal publishes articles and essays that are timely and make a significant, original contribution to the field of complex litigation. The Journal publishes scholarship on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, and transnational litigation. Published articles not only address issues pertinent to complex litigation practice, but also comment on theoretical aspects of the law.
The Stanford Journal of Complex Litigation prefers to accept submissions through ExpressO. However, submissions may also be sent directly to firstname.lastname@example.org. All submissions should be in Microsoft Word format. PDF and other text formats are not accepted. The text and citations of submissions should generally conform to The Bluebook: A Uniform System of Citation (19th ed. 2010). Submissions should also include a brief abstract and a resume or CV. Cover letters are not required but are permitted. The Stanford Journal of Complex Litigation has a word limit of 30,000 words (including footnotes), and a preference for 25,000 words or fewer.
The Stanford Journal of Complex Litigation is a peer-reviewed journal, meaning all final decisions regarding publication offers are made by a panel of anonymous faculty reviewers. To that end, the Journal is continually looking for more peer reviewers. If you are interested in serving as a reviewer, please contact: email@example.com.