Monday, January 26, 2015
Now available on the Courts Law section of JOTWELL is an essay by Nancy Leong entitled The Federalism Argument for Judicial Diversity. Nancy reviews a recent article by Sharon Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, which was published in the Missouri Law Review.
Saturday, January 24, 2015
Back at the end of last Term we covered the Supreme Court’s grant of certiorari in Gelboim v. Bank of America (No. 13-1174). This week the Court issued a unanimous opinion in Gelboim, authored by Justice Ginsburg. Here’s how she teed things up:
An unsuccessful litigant in a federal district court may take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U.S.C. §1291. The question here presented: Is the right to appeal secured by §1291 affected when a case is consolidated for pretrial proceedings in multidistrict litigation (or MDL) authorized by 28 U.S.C. §1407?
The Court’s answer: No. Plaintiffs whose action was consolidated for pretrial MDL proceedings could still appeal the dismissal of their action, even though other cases in the MDL remained pending. It was not necessary for such plaintiffs to obtain authorization to appeal via Federal Rule of Civil Procedure 54(b).
In footnote 4, though, the Court reserved judgment on whether it would reach the same conclusion when cases were “combined in an all-purpose consolidation,” as opposed to an MDL consolidation for pretrial purposes only. (Not as glamorous as footnote 4 of Carolene Products, but worth keeping an eye on.)
For more, Howard Wasserman has an analysis of the opinion over at SCOTUSblog.
Friday, January 16, 2015
Now available on the Courts Law section of JOTWELL is an essay by Mark Tushnet discussing The Federal Courts Junior Scholars Workshop. Some interesting thoughts on faculty workshops generally, as well as trends in federal courts scholarship.
Saturday, January 3, 2015
Chief Justice John Roberts once suggested that legal scholarship was not helpful to the bar, inventing a humorous parody of a law review article about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria." I find his 2014 Year-End Report on the Federal Judiciary only slightly more practical than the fictional article.
In a report almost entirely devoted to the federal courts' plodding adoption of technological advances, the Chief Justice began with a lengthy description of the Court's 1935 installation of a pneumatic tube system. He then praised the courts' use of "computer-assisted legal research" and the CM/ECF electronic filing system as though these were new developments.
Finally, he announced the Supreme Court's anticipated 2016 rollout of "its own electronic filing system," which will make "all filings at the Court . . . available to the legal community and the public without cost on the Court's website." However, as several commentators noted, this newfangled phenomenon has already been a reality for years through SCOTUSBlog and The American Bar Association.
Observers from The Washington Post to CBS News criticized the Chief Justice's failure, in his discussion of technology, to mention the clamor to allow video cameras (or even still photos) in the Supreme Court. The Wall Street Journal reports that even the ranking Republican member of the Senate Judiciary Committee, Iowa Senator Chuck Grassley, said "the courts have yet to embrace the one technology that the founders would likely have advocated for--cameras in the courtroom.”
What else is going on in the federal courts? Not much, according to the report. Filings decreased in the Supreme Court, the federal courts of appeal, and the bankruptcy courts. Filings for criminal defendants in the districts courts decreased also.
In fact, only civil case filings in the district courts nominally increased by 4% to 295,310. Diversity filings increased 13%, "mainly because of growth in personal injury and product liability filings." The Chief Justice doesn't say it, but those are typically cases that are subjected to Multidistrict Litigation (MDL).
According to the MDL Panel's statistical analysis for fiscal 2014, 53,103 civil cases in 2014 were subjected to MDL proceedings. In fact, there has been a steady rise in the number of cases subjected to MDL proceedings for over 25 years.
In contrast to the almost-meaningless number of "filings" that end up in MDL, there are only 314 pending MDL "litigations," and 46 of them were centralized in fiscal year 2014. That means that what counts for official purposes as around 50,000 cases boiled down to 46 "litigations." So it's not really clear that civil filings have increased, either.
Of course, it is unrealistic to expect the Year-End Report of the Chief Justice to explain this. The 2012 Year-End Report spoke raptly of the U.S.S. Constitution and the War of 1812. The 2013 Year-End report wistfully referenced A Christmas Carol and It's A Wonderful Life in connection with Congress' "sequester" of funds that year.
This year, the Chief Justice closed with a reference to the "sturdy bronze tortoises" at the bases of "the Court's exterior lampposts," "symbolizing the judiciary's commitment to constant but deliberate progress in the cause of justice." Hmm. I wonder if he's read The Case Against the Supreme Court by Erwin Chemerinsky.
Monday, December 15, 2014
Today the Supreme Court issued a 5-4 decision in Dart Cherokee Basin Operating Co. v. Owens. It’s an interesting breakdown. Justice Ginsburg writes the majority opinion, joined by Roberts, Breyer, Alito, and Sotomayor. The dissenters are Scalia, Kennedy, Thomas, and Kagan.
The question presented in Dart Cherokee involves what a party must include in a notice of removal. The answer, from Justice Ginsburg’s majority opinion:
To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.
In sum, as specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.
The dissenters in Dart Cherokee don’t challenge the majority on this. The cause of the disagreement, rather, is an issue that received considerable attention during the oral argument—one that was first flagged by Public Citizen in an amicus brief questioning the proper standard of review and the extent to which the Supreme Court could review a Court of Appeals’ decision to deny permission to appeal under the Class Action Fairness Act (CAFA). Review of the Tenth Circuit’s decision was complicated by the fact that it issued only a short order that failed to explain why it denied permission to appeal the district court’s remand order.
Justice Ginsburg finds that these concerns did not prevent Supreme Court review in this case, noting that “[t]he case was ‘in’ the Court of Appeals because of Dart’s leave-to-appeal application, and we have jurisdiction to review what the Court of Appeals did with that application. See 28 U. S. C. §1254; Hohn v. United States, 524 U. S. 236, 248 (1998),” and that “[t]here are many signals that the Tenth Circuit relied on the legally erroneous premise that the District Court’s decision was correct” in denying permission to appeal. In remanding the case, however, Justice Ginsburg notes that “[o]ur disposition does not preclude the Tenth Circuit from asserting and explaining on remand that a permissible ground underlies its decision to decline Dart’s appeal.”
Justice Scalia writes the dissenting opinion, arguing that the Court should have dismissed the writ as improvidently granted.
“Because we are reviewing the Tenth Circuit’s judgment, the only question before us is whether the Tenth Circuit abused its discretion in denying Dart permission to appeal the District Court’s remand order. Once we found out that the issue presented differed from the issue we granted certiorari to review, the responsible course would have been to confess error and to dismiss the case as improvidently granted.”
The most amusing part of the Dart Cherokee decision comes in Justice Scalia’s dissent, where he responds to Justice Ginsburg’s observation that a 2013 case, Standard Fire v. Knowles, came to the Court in a similar posture, yet Justice Scalia joined that decision without raising these concerns. Justice Scalia writes:
As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion), quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J., dissenting).
Finally, it’s worth noting that Justice Thomas does not join the final sentence of Justice Scalia’s dissenting opinion, where Justice Scalia writes that he would vote “to affirm” the Tenth Circuit if the writ were not dismissed as improvidently granted. This is because, as Justice Thomas explains in a separate dissenting opinion, he believes that the Supreme Court lacks jurisdiction even to review the Tenth Circuit’s decision under 28 U.S.C. § 1254.
Sunday, December 14, 2014
On Friday the Supreme Court granted certiorari in several new cases. A couple of them raise some interesting federal-courts issues.
Bullard v. Hyde Park Savings Bank (No. 14-116) presents the question: Whether an order denying confirmation of a bankruptcy plan is appealable.
Toca v. Louisiana (No. 14-6381) is a follow-up to the Supreme Court’s 2012 decision in Miller v. Alabama, which found that the Eighth Amendment forbids life-without-parole sentences for juvenile offenders. It presents the questions:
1) Does the rule announced in Miller apply retroactively to this case?
2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?
Thursday, December 11, 2014
Mulligan on Preis on the Relationship Between Federal Causes of Action, Rights, Remedies, and Jurisdiction
Now available on the Courts Law section of JOTWELL is an essay by Lou Mulligan entitled Federal Causes of Action and Everything that Follows.
Lou reviews a recent article by Jack Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, which is forthcoming in the Florida Law Review.
Friday, December 5, 2014
A couple of interesting posts this week about standing issues in some high-profile pending and perhaps-soon-to-be-once-again-pending Supreme Court cases:
- Richard Re, Is Fisher v. University of Texas a Precedent on Jurisdiction? (Re’s Judicata)
- Will Baude, The standing problem in Zivotofsky, revisited (Volokh Conspiracy)
Monday, December 1, 2014
Friday, November 14, 2014
Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).
Tuesday, November 4, 2014
Michael J. Gerhardt and Michael Ashley Stein have posted on SSRN their article, The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861, forthcoming in Iowa Law Review.
Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.
Monday, November 3, 2014
Over on the Courts Law section of JOTWELL is an essay by Steve Vladeck entitled Appealing to Injustice. Steve reviews Bill Richman and Bill Reynolds' recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford Univ. Press 2013).
Tuesday, October 14, 2014
Far from resting on its laurels after pushing through the latest round of defense-oriented amendments to the FRCP, the Advisory Committee on Civil Rules continues its assault. This time, among many other things, it's tackling class actions – as if the Supreme Court wasn't already doing a pretty good job of eviscerating class actions by itself.
The 588-page agenda book for the Committee's meeting in Washington, D.C. on October 30-31, 2014 is on the U.S. Courts website here.
Tuesday, September 16, 2014
Monday, August 18, 2014
We covered earlier the upcoming Hastings Law Journal symposium on the Supreme Court’s recent decision in Atlantic Marine Construction Co. v. U.S. District Court. It will take place in San Francisco on Friday, September 19th. Here’s an announcement/invitation with more details:
You are cordially invited to attend a symposium on Atlantic Marine v. U.S. District Court, a decision by the U.S. Supreme Court last Term that held forum-selection clauses to be enforceable under Sec. 1404(a)'s authorization of venue transfer. The symposium, co-sponsored by UC Hastings and Hastings Law Journal, will bring renowned scholars from across the country to discuss the importance of the decision and its implications for civil litigation. Up to 3.5 hours of California MCLE credit is available. Free and open to the public, the symposium will be held at UC Hastings College of the Law, 198 McAllister St., in the Louise B. Mayer Room from 1:00-4:30pm on Friday, September 19, 2014. A reception for all attendees will immediately follow. Register here: http://www.hastingslawjournal.org/symposium/.
Saturday, August 16, 2014
Stephen Burbank and Sean Farhang have posted on SSRN their article Federal Court Rulemaking and Litigation Reform: An Institutional Approach (forthcoming in Nevada Law Journal).
Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
Wednesday, July 23, 2014
By now most folks have seen yesterday’s conflicting rulings over whether the Affordable Care Act authorizes subsidies for individuals who purchase insurance on a federal exchange (as opposed to exchanges run by the states). The D.C. Circuit found that such subsidies were not statutorily authorized (the Halbig case). And an hour later, the Fourth Circuit found that the subsidies were statutorily authorized (the King case).
The merits of these decisions, as a practical matter and in terms of statutory interpretation, have received tremendous attention. But Article III standing was also an issue in both Halbig and King. Who, after all, suffers the constitutionally required “injury in fact” by virtue of receiving a subsidy? The answer: People who would be subject to the individual mandate if they are entitled to the subsidy but would not be subject to the individual mandate (on income grounds) without the subsidy. Here’s how the Halbig majority explained it with respect to one of the plaintiffs in that case, David Klemencic:
Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year. He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.
The D.C. Circuit found that this was sufficient for purposes of Article III standing, and the Fourth Circuit reached the same conclusion. From the Halbig majority opinion (footnote omitted):
The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized. But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (explaining that a “threatened injury” that is “certainly impending” may “constitute injury in fact” (emphasis and internal quotation marks omitted)). Those consequences may be small, but even an “‘identifiable trifle’” of harm may establish standing. Chevron Natural Gas v. FERC, 199 F. App’x 2, 4 (D.C. Cir. 2006) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)); see Bob Jones Univ. v. United States, 461 U.S. 574, 581-82 (1983) (noting that Bob Jones University sued for a tax refund of $21.00). Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.
And from the King opinion:
We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule. The IRS Rule forces the plaintiffs to purchase a product they otherwise would not, at an expense to them, or to pay the tax penalty for failing to comply with the individual mandate, also subjecting them to some financial cost. Although it is counterintuitive, the tax credits, working in tandem with the Act’s individual mandate, impose a financial burden on the plaintiffs.
The defendants’ argument against standing is premised on the claim that the plaintiffs want to purchase “catastrophic” insurance coverage, which in some cases is more expensive than subsidized comprehensive coverage required by the Act. The defendants thus claim that the plaintiffs have acknowledged they would actually expend more money on a separate policy even if they were eligible for the credits. Regardless of the viability of this argument, it rests on an incorrect premise. The defendants misread the plaintiffs’ complaint, which, while mentioning the possibility that several of the plaintiffs wish to purchase catastrophic coverage, also clearly alleges that each plaintiff does not want to buy comprehensive, ACA-compliant coverage and is harmed by having to do so or pay a penalty. The harm in this case is having to choose between ACA-compliant coverage and the penalty, both of which represent a financial cost to the plaintiffs. That harm is actual or imminent, and is directly traceable to the IRS Rule.
Monday, June 9, 2014
AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The AALS Section on Federal Courts is pleased to announce the third 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 2015 AALS Annual Meeting in Washington, D.C.
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, 2014 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2014), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (email@example.com), Chair of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2014. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Allan Erbsen (Minnesota), Tara Leigh Grove (William & Mary), James Pfander (Northwestern), and Judith Resnik (Yale), with the result announced at the Federal Courts section program at the 2015 AALS Annual Meeting.
Saturday, June 7, 2014
The Standing Committee met on May 29-30, 2014 in D.C. and unanimously approved the amendments as they were modified by the Advisory Committee at its meeting in April.
Hat tip: Center for Constitutional Litigation
Tuesday, June 3, 2014
Some people really, really want to be in federal court instead of state court. In Arnold Crossroads v. Gander Mountain, No. 13-2020 (8th Cir. Jun. 2, 2014), defendant Gander tried and failed to remove the case three times. Plaintiff filed this breach-of-lease case on February 24, 2009 in Missouri state court, seeking one month's damages of $40,000. Defendant's first attempt at removal on the basis of diversity failed for lack of the amount-in-controversy requirement. Defendant then filed a declaratory judgment action in federal court, which was dismissed on abstention grounds in light of the pending state case.
Plaintiff eventually amended its complaint to seek millions of dollars in damages for breach of the lease's entire 15-year period, and defendant attempted to remove again, but this time failed because the effort to remove was untimely under 28 U.S.C. §1446 (one year for diversity actions).
A year later, the City where the lease was to have operated intervened as a plaintiff, seeking $750,000 from defendant. Defendant attempted a third time to remove, purporting to remove only the City. The federal district court once again remanded, and defendant appealed.
The Eighth Circuit dismissed the appeal for lack of appellate jurisdiction under 28 U.S.C. §1447(d) (an order remanding a case to the state court from which it has been removed "is not reviewable on appeal or otherwise"), because the district court's remand order was based on the "§1447(c) procedural flaw of untimely removal." Judge Smith dissented: "I would reach the primary issue in this case and hold that Gander can remove the City's claim because that civil action involved a new party who asserted a new and original claim."