Friday, January 11, 2013
Prof. Michael Steven Green (William & Mary) is celebrating Erie’s 75th anniversary year with daily “Erieblogging.” His kick-off is here, and you can follow the rest at Prawfsblawg. The most recent installment (as of this post) is Day 10.
Thursday, January 10, 2013
Prof. Steve Vladeck (American University) has posted on SSRN a draft of his essay, Pendent Appellate Bootstrapping, which will be published in the Green Bag. He also has a Prawfsblawg post on the topic. Here’s the abstract:
Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."
Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, this short essay demonstrates that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.
Wednesday, January 9, 2013
Today the Supreme Court issued its decision in Already, LLC v. Nike, Inc., covered earlier here and here. The unanimous opinion by Chief Justice Roberts begins: “The question is whether a covenant not to enforce a trademark against a competitor’s existing products and any future ‘colorable imitations’ moots the competitor’s action to have the trademark declared invalid.”
Recognizing that “[a] case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” [Slip Op. 4], Chief Justice Roberts proceeds to apply the voluntary cessation doctrine. [Slip Op. 6-14.] He concludes:
Already’s only legally cognizable injury—the fact that Nike took steps to enforce its trademark—is now gone and, given the breadth of the covenant, cannot reasonably be expected to recur. There being no other basis on which to find a live controversy, the case is clearly moot. [Slip Op. 13-14]
There was also no need to remand the case for further proceedings: “The uncontested findings made by the District Court, and confirmed by the Second Circuit, make it absolutely clear this case is moot.” [Slip Op. 15]
Justice Kennedy authors a concurring opinion that is joined by Justices Thomas, Alito, and Sotomayor. He writes [Concurring Op. 2]:
This brief, separate concurrence is written to underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor with trademark infringement suddenly to abandon the suit without incurring the risk of an ensuing adverse adjudication. Courts should be well aware that charges of trademark infringement can be disruptive to the good business relations between the manufacturer alleged to have been an infringer and its distributors, retailers, and investors. The mere pendency of litigation can mean that other actors in the marketplace may be reluctant to have future dealings with the alleged infringer.
Now available on the Courts Law section of JOTWELL is an essay by Suja Thomas (Illinois) entitled Considering the Civil Jury. It reviews a recent article by Jason Solomon (William & Mary), The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012). Suja's review begins:
The civil jury is in this year. In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy. Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.
Tuesday, January 8, 2013
Yesterday the Supreme Court heard oral argument in The Standard Fire Insurance Co. v. Knowles (No. 11-1450), which considers whether plaintiffs can block CAFA removal by stipulating that the class is seeking damages below the $5 million threshold for CAFA diversity jurisdiction. Check out the oral argument transcript.
For additional coverage:
- Associated Press (Mark Sherman)
- Bloomberg (Greg Stohr)
- How Appealing (Howard Bashman)
- National Law Journal (Tony Mauro)
- N.Y. Times (Adam Liptak)
- Reuters (Jonathan Stempel)
- SCOTUSblog (Prof. Debra Lyn Bassett, Southwestern Law School)
- @SCOTUSHUMOR (Prof. Jay Wexler, Boston University)