Wednesday, September 28, 2016

Vazquez and Vladeck on a Constitutional Right to Collateral Post-Conviction Review

Carlos Vazquez and Steve Vladeck have posted on SSRN a draft of their article, The Constitutional Right to Collateral Post-Conviction Review, which will be published in the Virginia Law Review. Here’s the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

 

 

 

 

September 28, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, September 27, 2016

Ninth Circuit Decision on FRCP 44.1, Foreign Law & the Uniform Recognition Act

Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in de Fontbrune v. Wofsy. The court unanimously held that the district court was correct to consider expert declarations on the content of French law in connection with the defendants’ Rule 12(b)(6) motion to dismiss, although it reversed on the issue of whether the French award at issue in the case was cognizable under California’s Uniform Recognition Act.

Here are the opinion’s opening paragraphs:

Justice Holmes once observed that foreign legal systems can appear to the uninitiated “like a wall of stone,” impenetrable and unyielding. Diaz v. Gonzales, 261 U.S. 102, 106 (1923) (Holmes, J.). For over a century, the federal courts attempted to scale this stone wall by treating questions of foreign law as questions of fact to be pleaded and proved. But over the years, this method proved unsatisfactory, obscuring rather than illuminating the content and nuance of foreign laws. Finally, in 1966, following a proliferation of international litigation, Federal Rule of Civil Procedure 44.1 was adopted to furnish federal courts with a uniform procedure for raising and determining an issue concerning foreign law. Fed. R. Civ. P. 44.1 advisory committee’s note. Now, according to the Rule, a “court’s determination [of foreign law] must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1.

Despite the clear mandate of the federal rule, this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings. The dispute stems from the transcontinental attempts of Yves Sicre de Fontbrune to protect his copyright in photographs of Pablo Picasso’s artworks after an American art editor, Alan Wofsy and Alan Wofsy and Associates (collectively, “Wofsy”), reproduced the photographic images. As part of his efforts, de Fontbrune received a judgment in French court of two million euros in “astreinte” against Wofsy for copyright violations. De Fontbrune sought to enforce this astreinte in federal court in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act (“Uniform Recognition Act” or “the Act”), Cal. Civ. Proc. Code §§ 1713 et seq.

The Picasso photographs—intended to convey the quintessence of Picasso’s artworks—now require us to delve into the essence of astreinte, a French judicial device. The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty—which the Uniform Recognition Act does not recognize—or as a grant of monetary recovery—which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.

Download DeFontbrune v Wofsy (9th Cir)

 

 

 

September 27, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

Wednesday, September 21, 2016

Ever Wonder Which SCOTUS Cases Have Been Cited the Most?

We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.

So which Supreme Court decisions have been cited the most? The top-ranked cases, it turns out, are right in your 1L civil procedure syllabus. My article that came out this spring (The Rise and Fall of Plausibility Pleading?) includes some data on this from the Shepard’s citation service. In terms of citations by federal courts, the Top-5 are all civil procedure cases: the 1986 summary judgment trilogy (#1, #2, #5) plus Twombly (#3) and Iqbal (#4). Here’s the Top-20:

Rank

Case

Federal Court Citing References

1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

195,159

2

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

183,365

3

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)

127,521

4

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

104,712

5

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)

94,229

6

Strickland v. Washington, 466 U.S. 668 (1984)

70,312

7

Thomas v. Arn, 474 U.S. 140 (1985)

68,944

8

Conley v. Gibson, 355 U.S. 41 (1957)

60,389

9

Slack v. McDaniel, 529 U.S. 473 (2000)

51,901

10

Haines v. Kerner, 404 U.S. 519 (1972)

51,029

11

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

44,833

12

Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)

44,577

13

Neitzke v. Williams, 490 U.S. 319 (1989)

42,084

14

Richardson v. Perales, 402 U.S. 389 (1971)

41,975

15

Estelle v. Gamble, 429 U.S. 97 (1976)

41,044

16

Williams v. Taylor, 529 U.S. 362 (2000)

40,156

17

Farmer v. Brennan, 511 U.S. 825 (1994)

37,406

18

Miller-El v. Cockrell, 537 U.S. 322 (2003)

35,293

19

Erickson v. Pardus, 551 U.S. 89 (2007)

28,298

20

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

26,999

You can find the full Top-100 in Appendix A of the article (p.59-62 of the pdf file).

 

 

 

 

September 21, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (3)

Tuesday, September 20, 2016

Second Circuit Reverses $147M Judgment Against Chinese Companies on International Comity Grounds

Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re: Vitamin C Antitrust Litigation. The plaintiffs had obtained a judgment for $147 million in damages (as well as injunctive relief) against two Chinese companies, but the Second Circuit found that the district court should have abstained on international comity grounds. From the opinion:

This case presents the question of what laws and standards control when U.S. antitrust laws are violated by foreign companies that claim to be acting at the express direction or mandate of a foreign government. Specifically, we address how a federal court should respond when a foreign government, through its official agencies, appears before that court and represents that it has compelled an action that resulted in the violation of U.S. antitrust laws. ***

Here, because the Chinese Government filed a formal statement in the district court asserting that Chinese law required Defendants to set prices and reduce quantities of vitamin C sold abroad, and because Defendants could not simultaneously comply with Chinese law and U.S. antitrust laws, the principles of international comity required the district court to abstain from exercising jurisdiction in this case.

Download In re Vitamin C Antitrust Litigation (2d Cir)

 

 

September 20, 2016 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Tuesday, September 13, 2016

Newly Approved Federal Court Pilot Programs

Today’s announcement on the U.S. Courts website begins:

Two pilot programs – one that will allow pro se prisoners to file certain federal court documents electronically from a kiosk in a prison and a second that will provide judicial assistance to select district courts with unusually high civil caseloads – were approved today by the Judicial Conference at its biannual meeting in Washington, D.C.

 

 

Publish

 

September 13, 2016 in Federal Courts, In the News | Permalink | Comments (0)

Sunday, September 11, 2016

House to Explore Expanding Diversity Jurisdiction

The House Judiciary Committee, Subcommittee on the Constitution and Civil Justice, will hold a hearing on Tuesday, September 13 at 11:00 a.m. on "Exploring Federal Diversity Jurisdiction."

Witnesses:

  • Mr. Charles Cooper, Partner, Cooper & Kirk, PLLC
  • Ms. Joanna Shepherd, Professor of Law, Emory Law School
  • Mr. Ronald Weich, Professor of Law, University of Baltimore

In 2014, Mr. Cooper co-authored an article, Complete Diversity and the Closing of the Federal Courts, which argued for minimal diversity as the jurisdictional standard and was published in the Harvard Journal of Law & Public Policy, a forum for conservative scholarship.

In 2015, Professor Shepherd published a study conducted for the National Association of Manufacturers entitled Estimating the Impact of a Minimal Diversity Standard on Federal Court Caseloads, which concluded:

This study shows that concerns of diversity jurisdiction burdening the federal courts are largely unfounded. Empirical analysis of almost 3,600 complaints filed in state court shows that replacing complete diversity with a minimal diversity standard would increase existing federal district court caseloads by less than 8 percent. Distributed evenly over existing federal judgeships, this caseload increase translates into an additional 43 cases per year for each judgeship.

Ronald Weich is the dean of University of Baltimore College of Law. 

Hat tip: Altom Maglio.

 

September 11, 2016 in Current Affairs, Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, September 9, 2016

Strong on Diversity Jurisdiction & Commercial Trusts After Americold

S.I. Strong has posted on SSRN a draft of her article, Congress and Commercial Trusts: Dealing With Diversity Jurisdiction Post-Americold, which will be published in the Florida Law Review. Here’s the abstract:

Commercial trusts are one of the United States’ most important types of business organizations, holding trillions of dollars of assets and operating nationally and internationally as a “mirror image” of the corporation. However, commercial trusts remain underappreciated and undertheorized in comparison to corporations, often as a result of the mistaken perception that commercial trusts are analogous to traditional intergenerational trusts or that corporations reflect the primary or paradigmatic form of business association.

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties’ ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state court, despite their complexity, their impact on matters of national public policy and their effect on the domestic and global economies. 

Americold will also result in differential treatment of commercial trusts and corporations for purposes of federal jurisdiction, even though courts and commentators have long recognized the functional equivalence of the two types of business associations. Furthermore, as this research shows, there is no theoretical justification for this type of unequal treatment. 

This Article therefore suggests, as a normative proposition, that Congress override Americold and provide commercial trusts with access to federal courts in a manner similar to that enjoyed by corporations. This recommendation is the result of a rigorous interdisciplinary analysis of both the jurisprudential and practical problems created by Americold as a matter of trust law, procedural law and the law of incorporated and unincorporated business associations. The Article identifies two possible Congressional responses to Americold, one involving reliance on minimal diversity, as in cases falling under 28 U.S.C. §§1332(d) and 1369, and the other involving a statutory definition of the citizenship of commercial trusts similar to that used for corporations under 28 U.S.C. §1332(c). In so doing, this Article hopes to place commercial trusts and corporations on an equal footing and avoid the numerous negative externalities generated by the Supreme Court’s decision in Americold.

 

 

 

September 9, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 8, 2016

Sachs on Pennoyer, Personal Jurisdiction & General Law

Steve Sachs has posted on SSRN a draft of his article, Pennoyer Was Right: Jurisdiction and General Law, which will be published in the Texas Law Review. Here’s the abstract:

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law--that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn't be recognized elsewhere, in other states or in federal courts--any more than if they'd tried to redraw their borders.

As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. Courts applying the Due Process Clause should avoid pitched battles between "sovereignty" and "liberty," looking instead to current conventions of general and international law. International law may not be much, but it's something: the conventional settlement of the problems of political authority that personal jurisdiction so obviously raises.

Pennoyer's reasoning can be right without International Shoe's outcome being wrong. International law and American practice might be different now than in 1878, or even in 1945. But if not, or if the rules need improvement anyway, Congress has power to improve them--providing federal rules to govern a federal system.

 

 

 

 

September 8, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, September 7, 2016

Update on the 2016 FRCP Amendments

In April 2016, the U.S. Supreme Court adopted amendments to Rules 4, 6, and 82 of the Federal Rules of Civil Procedure. These amendments would:

(1) add to the last sentence of Rule 4(m) a clarification that Rule 4(m)’s 90-day deadline for serving process does not apply to service in a foreign country under Rule 4(h)(2);

(2) amend Rule 6(d) to remove service by electronic means from the modes of service that allow 3 added days to act after being served; and

(3) amend Rule 82 to reflect the 2011 legislation enacting 28 U.S.C. § 1390 and repealing § 1392.

Download FRCP Amendments (Adopted April 2016)

Unless Congress intervenes, these amendments will go into effect on December 1, 2016.

Last week, Sixth Circuit Judge Jeffrey Sutton, who chairs the Standing Committee, sent the following letter to Vice President Joe Biden (who in that capacity is also President of the U.S. Senate) and to Speaker of the House Paul Ryan:

Download 2016-08-31-sutton_to_biden_and_ryan_re_civil_rule_4m

The letter addresses an issue regarding the 2015 and 2016 amendments to Rule 4(m). The final text of the amendment that the Supreme Court adopted in April 2016 omitted language that had been added in 2015, which instructed that Rule 4(m)’s 90-day deadline for serving process does not apply to “service of a notice under Rule 71.1(d)(3)(A).” The omission appears to have been inadvertent—that language was not stricken in the redlined version of the 2016 amendment, nor was it referred to in the advisory committee note for the 2016 amendment.

Judge Sutton writes that, despite the omission, the “net effect” of the 2015 and 2016 amendments would include language regarding both Rule 4(h)(2) and Rule 71.1(d)(3)(A) in the last sentence of Rule 4(m). He concludes:

[I]f the current amended rule pending before Congress goes into effect on December 1, 2016, it henceforward will read:

“This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).”

 

 

 

 

September 7, 2016 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Eighth Circuit Refuses to Set Aside Order that Missouri Disclose Its Execution Drug Suppliers

Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment. 

MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.

Download In re Missouri DOC (8th Cir)

 

 

 

 

 

September 7, 2016 in Current Affairs, Discovery, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, September 6, 2016

Call for Nominations: AALS Federal Courts Section’s Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

Here is the announcement:

The AALS Section on Federal Courts is pleased to announce the fifth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2017 AALS Annual Meeting in San Francisco, CA. 

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School (bclark@law.gwu.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.

 

 

 

 

 

September 6, 2016 in Conferences/Symposia, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, August 31, 2016

Second Circuit reverses $655 Million verdict against PLO & PA for lack of personal jurisdiction

Today the Second Circuit issued its decision in Sokolow v. Palestine Liberation Organization. The claims in the case were brought by eleven American families against the Palestine Liberation Organization and the Palestinian Authority under the Anti-Terrorism Act (18 U.S.C. § 2333(a)), based on terror attacks in Israel. The plaintiffs had won a $655.5 million jury verdict in the district court, but the decision today ruled that U.S. courts lacked personal jurisdiction.

The Second Circuit found that general jurisdiction was not permissible in light of the U.S. Supreme Court’s decision in Daimler. As for specific jurisdiction, the court concluded:

In sum, because the terror attacks in Israel at issue here were not expressly aimed at the United States and because the deaths and injuries suffered by the American plaintiffs in these attacks were “random [and] fortuitous” and because lobbying activities regarding American policy toward Israel are insufficiently “suit-related conduct” to support specific jurisdiction, the Court lacks specific jurisdiction over these defendants.

Here are the opinion’s final paragraphs:

The terror machine gun attacks and suicide bombings that triggered this suit and victimized these plaintiffs were unquestionably horrific. But the federal courts cannot exercise jurisdiction in a civil case beyond the limits prescribed by the due process clause of the Constitution, no matter how horrendous the underlying attacks or morally compelling the plaintiffs’ claims.

The district court could not constitutionally exercise either general or specific personal jurisdiction over the defendants in this case. Accordingly, this case must be dismissed.

Download Sokolow v PLO (2d Cir)

 

 

 

 

August 31, 2016 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Tuesday, August 30, 2016

Dodson on Jurisdiction

Scott Dodson has posted on SSRN a draft of his article, Jurisdiction and Its Effects, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:

Jurisdiction is experiencing an identity crisis. The Court has given jurisdiction three different identities: jurisdiction as power, jurisdiction as defined effects, and jurisdiction as positive law. These identities are at war with each other, and each is unsustainable on its own. The result has been a breakdown in the application of the basic question of what is jurisdictional and what is not.

I aim to rehabilitate jurisdiction. Jurisdiction is none of the three identities above. Rather, jurisdiction determines forum in a multi-forum system. It seeks not to limit a particular court in isolation but instead to define boundaries and relationships among forums. Because it speaks to relationships generally, jurisdiction exhibits neither unique nor immutable effects. Instead, positive law can prescribe whatever effects - including waivability, forfeitability, and even equitable discretion - best fit a particular jurisdictional rule.

This identity for jurisdiction resolves tensions across a wide range of doctrines. For example, it reconciles personal jurisdiction and original subject-matter jurisdiction as jurisdictional kin, a pair long estranged because of personal jurisdiction’s waivability. Other categorizations are more surprising. For example, venue, abstention, and even the Federal Arbitration Act are all jurisdictional because they select among forums, while Article III standing is non-jurisdictional because it does not. These categorizations are unconventional, but they ultimately produce a more coherent, consistent, and useful jurisdictional identity.

 

 

 

August 30, 2016 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (1)

Wednesday, August 24, 2016

Second Circuit Opinion on the Alien Tort Statute: Licci v. Lebanese Canadian Bank

Today the U.S. Court of Appeals for the Second Circuit handed down another post-Kiobel decision on the Alien Tort Statute (ATS). Licci v. Lebanese Canadian Bank involves claims against a Lebanese bank alleging that they provided international financial services to Hezbollah that facilitated Hezbollah’s rocket attacks on civilians in Israel.

From the opinion’s introductory paragraphs:

This case is not new to our Court. In fact, this appeal is in its third appearance before us in the last five years. In our prior opinions, we determined (with an assist from the New York Court of Appeals, see Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 339 (2012) (“Licci III”)) that the District Court had personal jurisdiction over defendant LCB, and that subjecting the foreign bank to personal jurisdiction in New York comports with due process protections provided by the United States Constitution. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 165 (2d Cir. 2013) (“Licci IV”); Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 73–74 (2d Cir. 2012) (“Licci II”). This case presents a different question: Whether the District Court has subject matter jurisdiction over Plaintiffs’ ATS claims. The District Court dismissed the ATS claims under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (“Kiobel II”), reasoning that Plaintiffs failed to displace the presumption against extraterritorial application of the ATS. Though we disagree with the District Court’s basis for dismissal, we affirm because the ATS claims seek to impose corporate liability in contravention of our decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010) (“Kiobel I”).

Here’s the full opinion:

Download Licci v. LCB (2d Cir 2016)

Particularly notable is the Second Circuit’s discussion of the Supreme Court’s Kiobel decision [pp.18-30 of the opinion], and its conclusion that “Plaintiffs have surpassed the jurisdictional hurdle set forth in Kiobel II, 133 S. Ct. at 1669.”

 

 

 

 

 

August 24, 2016 in Federal Courts, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, August 22, 2016

Federal Court Dismisses Alien Tort Statute Claim Against U.S.-Based Turkish Cleric

Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)

Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.

Download Ates v Gulen (MD Pa)

 

 

 

August 22, 2016 in Current Affairs, Federal Courts, In the News, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Gelbach & Marcus on Federal Court Social Security Disability Litigation

Jonah Gelbach & Dave Marcus have posted on SSRN A Study of Social Security Disability Litigation in the Federal Courts, Final Report to the Administrative Conference of the United States. Here’s the abstract:

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent. 

The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation. 

Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly. 

Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.

 

 

 

 

August 22, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, August 15, 2016

Ninth Annual Junior Faculty Federal Courts Workshop

Howard Wasserman has posted the details for the Ninth Annual Junior Faculty Federal Courts Workshop, which will take place at Emory on March 31 - April 1, 2017. If you’d like to present, submit an abstract to federalcourtsworkshop2017@gmail.com by November 1, 2016.

 

 

 

 

August 15, 2016 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Thursday, August 4, 2016

Federal Court Dismisses Roy Moore’s Lawsuit Based on Younger Abstention

Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:

Download Moore v JIC

Coverage here and here.

 

 

 

August 4, 2016 in Current Affairs, Federal Courts, Recent Decisions | Permalink | Comments (0)

Wednesday, July 13, 2016

Smith on Prudential Limits on Federal Judicial Power

Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.

 

 

 

July 13, 2016 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, June 22, 2016

Judge Pro on Federal Magistrate Judges

Judge Philip M. Pro (United States District Court for the District of Nevada) has posted on SSRN his article United States Magistrate Judges: Present but Unaccounted For, forthcoming in the Nevada Law Journal.

Abstract:

The relationship between United States district judges and United States magistrate judges is unique within the American judiciary. United States magistrate judges are the first judges encountered in most federal civil or criminal cases and play an increasingly important role in the adjudication of virtually every case in United States district court. Yet, while the behavior of Article III judges has been the subject of active academic scrutiny, the behavior of magistrate judges, who are appointed to renewable eight-year terms by their Article III district judge colleagues, has largely been ignored. This paper reports the results of interviews of thirty-four magistrate judges and district judges, and through their experiences, explores whether their judicial decision-making relationship, a motivation for re-appointment, or elevation to Article III status influences their judicial behavior and that of their district judge colleagues. The answers to these questions are nuanced and dependent on variables not previously considered, and are best understood in the context of the remarkable evolution of the Magistrate Judges System, which has existed for less than fifty years.

June 22, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)