Thursday, May 11, 2017

Murray on Harmless Error Review (and a Response by Garrett)

Justin Murray has published A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017). Here’s the abstract:

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.

The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.

I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.

Brandon Garrett has published a response, Patterns of Error, 130 Harv. L. Rev. F. 287 (2017).

 

 

 

May 11, 2017 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, May 3, 2017

AALS Section on Federal Courts: Call for Nominations for the Daniel J. Meltzer Award

Here is the announcement:

The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the new Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer.  The Award will recognize a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts.  Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools and have not served as an officer of the Federal Courts Section in the two previous years.  It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years.  Nominations (and questions about the award) should be directed to Prof. Curtis Bradley at Duke University School of Law (cbradley@law.duke.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2017.  Nominations will be reviewed by a prize committee consisting of Professors Curtis Bradley (Duke), John Manning (Harvard), Judith Resnik (Yale), Amanda Tyler (Berkeley), and Ernest Young (Duke).  If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2018 AALS Annual Meeting in San Diego, California.

[Update: Nominees may include emeritus professors who previously were members of the full-time faculty of an AALS member or affiliate school.]  

 

 

 

 

May 3, 2017 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Tuesday, May 2, 2017

SCOTUS Decision on the Foreign Sovereign Immunities Act

Yesterday the Supreme Court issued a unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., covered earlier here. The case involves the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), which provides that foreign states are not immune from jurisdiction in U.S. courts when, among other things, “rights in property taken in violation of international law are in issue.”

Justice Breyer’s opinion concludes that it is not sufficient to “make a ‘nonfrivolous’ argument that the case falls within the scope of the exception.”

Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.

Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493–494 (1983).

Part III of the opinion contrasts the FSIA with 28 U.S.C. § 1331, finding that Bell v. Hood’s approach to the existence of a federal question does not apply to the FSIA’s expropriation exception.

Justice Gorsuch took no part in the consideration or decision of the case.

Download Venezuela v. Helmerich & Payne

 

 

 

 

May 2, 2017 in Federal Courts, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, May 1, 2017

SCOTUS Cert Grant in Patchak v. Zinke

Today the Supreme Court granted certiorari in Patchak v. Zinke, which will address the separation-of-powers principles stemming from United States v. Klein. The grant is limited to the first question presented:

Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

May 1, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, April 17, 2017

Today’s SCOTUS Oral Arguments

Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:

 

 

 

April 17, 2017 in Class Actions, Federal Courts, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, April 13, 2017

Morley on Spokeo, Standing & the Quasi-Hohfeldian Plaintiff

Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:

In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim. 

Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.

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April 13, 2017 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Friday, April 7, 2017

And then there were nine

After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues. 

Monday, April 17:

Tuesday, April 25:

 

 

 

 

 

April 7, 2017 in Federal Courts, In the News, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, April 6, 2017

Pfander on Morley on Erie and Federal Equity

Now on the Courts Law section of JOTWELL is Jim Pfander’s essay, Erie and Equity. Jim reviews Michael Morley’s recent article, The Federal Equity Power.

 

 

 

 

April 6, 2017 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, April 3, 2017

SCOTUS Cert Grant on Corporate Liability under the Alien Tort Statute

Today the Supreme Court granted certiorari in Jesner v. Arab Bank, PLC. Here’s the question presented:

This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

April 3, 2017 in Federal Courts, International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 21, 2017

March Oral Arguments at SCOTUS

Several interesting civil procedure cases on the Supreme Court’s March 2017 oral argument calendar (more details in the links)...

Today (3/21): Microsoft v. Baker

Tomorrow (3/22): Water Splash v. Menon

Monday (3/27): TC Heartland v. Kraft Foods

 

 

 

 

March 21, 2017 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Supreme Court Cases | Permalink | Comments (0)

Sunday, March 12, 2017

Morley on Federal Equity Power

Michael Morley has posted on SSRN a draft of his article, The Federal Equity Power. Here’s the abstract:

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.

Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. 

There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.

Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.

 

 

 

March 12, 2017 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Friday, March 10, 2017

House of Representatives Passes H.R. 725 & H.R. 985

We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.

Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.

 

 

 

 

March 10, 2017 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, March 6, 2017

Professor Thomas Creates a TED-Ed Video on the Vanishing Jury

Professor Suja Thomas (Illinois) has produced an entertaining TED-Ed video called "What Happened to Trial by Jury?"   Ten online review questions follow the video.

In my opinion, the video is suitable for law students and also the general public.  I think there is a great need for clear, brief videos on various aspects of the U.S. government.  There appears to be a dearth of knowledge on that score.  For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.  

 

March 6, 2017 in Current Affairs, Federal Courts, Web/Tech | Permalink | Comments (0)

Monday, February 27, 2017

SCOTUS Cert Grant on Habeas Review of Unexplained State Court Decisions

Today the U.S. Supreme Court granted certiorari in Wilson v. Sellers, which presents the following question:

Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas proceedings should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Whether FRAP 4(a)(5)(C) is Jurisdictional

Today the U.S. Supreme Court granted certiorari in Hamer v. Neighborhood Housing Services of Chicago, which presents the following question:

Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the Second, Fourth, Seventh, and Tenth Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the Ninth and D.C. Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver, and the unique-circumstances doctrine.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Supplemental Jurisdiction & 1367(d)'s Tolling Provision

Today the U.S. Supreme Court granted certiorari in Artis v. District of Columbia, which presents the following question:

Section 1367 of Title 28 authorizes federal district courts in certain circumstances to exercise supplemental jurisdiction over claims arising under State law.

Section 1367 further provides that "[t]he period of limitations for any [such] claim ...shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. § 1367(d).

The question presented is whether the tolling provision in §1367(d) suspends the limitations period for the state-law claim while the claim is pending and for thirty days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, February 23, 2017

Gugliuzza & La Belle on the Patent Venue Statute

Paul Gugliuzza and Megan La Belle have posted on SSRN a draft of their article, The Patently Unexceptional Venue Statute, which will be published in the American University Law Review. Here’s the abstract:

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct. 

This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond. 

This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation.

 

 

 

 

February 23, 2017 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, February 20, 2017

Burch on MDL Monopolies

Elizabeth Burch has recently published Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Here’s the abstract:

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety may peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that may permit lead lawyers to act, at times, like a cartel.

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February 20, 2017 in Federal Courts, MDLs, Recent Scholarship | Permalink | Comments (0)

Friday, February 17, 2017

Five Questionable Bills About Civil Lawsuits Pass House Judiciary Committee

Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House: 

Bill

Title

Original sponsor

H.R. 985

Fairness in Class Action Litigation Act

Bob Goodlatte (R-VA-6)

H.R. 906

Furthering Asbestos Claim Transparency (FACT) Act

Blake Farenthold (R-TX-27)

H.R. 732

Stop Settlement Slush Funds Act

Bob Goodlatte (R-VA-6)

H.R. 725

Innocent Party Protection Act

Ken Buck (R-CO-4)

H.R. 720

Lawsuit Abuse Reduction Act

Lamar Smith (R-TX-21)

            We briefly described four of the bills here.  The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.  

February 17, 2017 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, February 9, 2017

Ninth Circuit Refuses to Stay District Court’s TRO Against Trump’s Executive Order

Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:

Download WA v Trump (9th Cir 2-9-17)

  • Yes to appellate jurisdiction
  • Yes to Article III standing for Washington and Minnesota
  • No to the federal government’s request to narrow the TRO

Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:

Download 2-9-17 Procedural Order

 

 

February 9, 2017 in Current Affairs, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Travel | Permalink | Comments (0)