Monday, November 28, 2016

Walsh on Bray on the National Injunction

Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.

 

 

 

November 28, 2016 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, October 27, 2016

Delaney on Avoidance

Erin Delaney has posted on SSRN her article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016). Here’s the abstract:

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of — or the evolution of popular societal consensus around — a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.

 

 

 

 

October 27, 2016 in Federal Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Tuesday, October 25, 2016

Call for Papers: The Ninth Annual Junior Faculty Federal Courts Workshop

Here’s an announcement with the dates and details for the Ninth Annual Junior Faculty Federal Courts Workshop:

Emory University School of Law School will host the Ninth Annual Junior Faculty Federal Courts Workshop on March 31-April 1, 2017. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2017 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.   There is no registration fee. The conference will begin with a dinner on Friday March 31; panels will take place on Saturday, April 1. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as commentator while leading a group discussion on the papers. Scheduled commentators include Heather Elliot, Richard Freer, Jonathan Nash, and James Pfander.

Emory Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to federalcourtsworkshop2017@gmail.com by November 1, 2016. Papers will be selected by a committee of past participants, and presenters will be notified by early January. Those planning to attend must register by February 20, 2017.

(H/T: Fred Smith)

 

 

 

October 25, 2016 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Monday, October 17, 2016

Nielson & Walker on Strategic Judicial Behavior in Qualified Immunity Decisions

Aaron Nielson and Chris Walker have posted on SSRN their article, Strategic Immunity, 66 Emory L.J. 55 (2016). Here’s the abstract:

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes result. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives for the proper exercise of discretion.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public’s benefit. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge’s discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant “panel effects”: politically unified panels are more likely to exercise discretion either to find no constitutional violation, for “all Republican” panels, or to recognize new constitutional rights, for “all Democratic” panels. Yet on mixed panels there are no differences, suggesting a collegial concurrence or a majority compromise to avoid dissent. The decision to publish also appears to be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. This potential for strategic behavior — as in the administrative law context — begs for reform.

As Chris pointed out on twitter, this issue of the Emory Law Journal has a civ-pro/fed-courts vibe to it, including my article on the 2015 FRCP amendments and some interesting student comments on judicial immunity and personal jurisdiction. Check it out.

 

 

 

October 17, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Thursday, October 13, 2016

Third Circuit Decision on Standing, Pleading, and NSA Surveillance

Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.

The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.

Download Schuchardt (3d Cir)

It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation  v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:

Download Wikimedia v NSA (4th Cir) Law Professor Amicus Brief

 

 

 

 

 

 

October 13, 2016 in Adam Steinman, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Tuesday, October 11, 2016

SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards

Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.

The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history). 

[Update: During the cert-stage briefing and in the initial order granting certiorari, these three cases were captioned with Ibrahim Turkmen as the lead respondent (Ziglar v. TurkmenAshcroft v. Turkmen, and Hasty v. Turkmen). The docket and merits briefs now list Ahmer Iqbal Abbasi as the lead respondent.]  

You can find all the cert-stage briefing—and follow the merits briefs as they come in—by checking out the SCOTUSblog casefiles (Ziglar; Ashcroft; Hasty). Here are the questions presented in full...

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October 11, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Thursday, October 6, 2016

Venezuela v. Helmerich: Protecting Foreign Sovereigns At What Cost? (Guest Post by Simona Grossi)

Simona Grossi presents the following guest post on one of the important cases on the Supreme Court’s docket this Term:

[Update: Simona has also posted on SSRN a more detailed essay analyzing the case.] 

* * *

On Wednesday, November 2, the Supreme Court will hear oral arguments in Venezuela v. Helmerich & Payne International, to decide whether to make it harder for the plaintiffs to plead jurisdiction over a foreign state under the Foreign Sovereign Immunities Act (“FSIA”). FSIA provides a framework for determining when a foreign state may be subject to the jurisdiction of the federal or state courts of the United States, and when it shall be immune from such jurisdiction. In particular, and specifically at issue in Helmerich, is the expropriation exception under §1605(a)(3), which strips the foreign sovereign of immunity when, among other things, the foreign sovereign has engaged in a taking of property in violation of international law.

The plaintiffs in the case are Helmerich & Payne International Drilling Co. (H&P-IDC), an Oklahoma-based corporation, and one of its subsidiary, Helmerich & Payne de Venezuela (H&P-V), incorporated under Venezuela law. They sued the Bolivarian Republic of Venezuela and two state-owned corporations, Petróleos de Venezuela, S.A. (PDVSA) and PDVSA Petróleo, (collectively, “PDVSA”), before the United States District Court for the District of Columbia claiming breach of contract and a taking of property in violation of international law. They had entered into a series of contracts for oil-drilling with PDVSA, and defendants breached those contracts by failing to make timely payments for the services rendered, and by unlawfully expropriating plainitffs’ rigs. Venezuela and PDVSA moved to dismiss the complaint on the grounds that neither FSIA exception applied and that the act-of-state doctrine—under which American courts “will not question the validity of public acts (acts jure imperii) performed by other sovereigns within their own borders”—bars the suit altogether. The district court held that the plaintiffs had standing to assert a taking in violation of international law and that the claim was not barred by the act-of-state doctrine.

On appeal, Venezuela argued that the expropriation exception in the FSIA—denying foreign sovereign immunity “in any case . . . in which rights in property taken in violation of international law are in issue,” 28 U.S.C. § 1605(a)(3)—did not apply because H&P-V was a Venezuelan national and, as such, under United States v. Belmont, 301 U.S. 324, 332 (1937), it could not claim a taking in violation of international law. Relying on Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 861 (2d Cir. 1962), and the Restatement (Third) of Foreign Relations Law, H&P-V rebutted that the defendants had unreasonably discriminated against it on the basis of its sole shareholder’s foreign nationality, thus implicating a discrimination exception to the Belmont rule. The D.C. Circuit found that H&P-V had satisfied the Circuit’s standard for surviving a motion to dismiss in a FSIA case— this standard allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous—and held the taking exception applicable. Hence, Venezuela would not be immune from the jurisdiction of the court.

Venezuela petitioned the Supreme Court for review arguing that plaintiffs had failed to plead facts sufficient to support a claim of discriminatory taking. The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the FSIA's expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute. Petitioners argue that for this case to fall within the jurisdiction of the court, plaintiffs must show “an actual violation of customary international law” and plead facts sufficient to “establish the existence of all of the elements set out in the relevant statutory exception.” (Brief for Petitioners at 14-15). Essentially, Venezuela is claiming that the plaintiffs should prove their case to have access to the jurisdiction of the court. Surprisingly, or perhaps not much so, Venezuela’s demand for this high jurisdictional threshold is fully endorsed by the United States, that has filed an amicus brief in support, “to ensure that the foreign state actually receives the protections of immunity if no exception applies, to preserve the dignity of the foreign state and comity between nations, and to safeguard the interests of the United States when it is sued in foreign courts.” (U.S. Amicus Brief, at 8)

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October 6, 2016 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 5, 2016

Shapiro on Federal Question Jurisdiction

David Shapiro has posted on SSRN his essay, An Incomplete Discussion of “Arising Under” Jurisdiction, which was published in the Notre Dame Law Review. Here’s the abstract:

This essay, a contribution to a Symposium in honor of Professor Daniel Meltzer, focuses on one aspect of federal question jurisdiction – cases in which a question of federal law is “embedded” in a state law cause of action. The essay deals primarily with these cases as they come to the Supreme Court on request for review of a state court decision, but also addresses cases that arise when a party invokes the original or removal jurisdiction of a federal district court. The questions whether and to what extent such cases fall within the constitutional and statutory authority of the federal courts are considered in the historical context of the evolution of Supreme Court decisions, and the interplay of the views over several decades of the author, of Professor Meltzer, and of seven editions of Hart & Wechsler’s “The Federal Courts and the Federal System.”

 

 

 

October 5, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, October 4, 2016

The Justice Against Sponsors of Terrorism Act: Congress Narrows Foreign Sovereign Immunity

Last week Congress voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Although there’s apparently been some “buyer’s remorse” by members of Congress who voted to override the veto, JASTA’s provisions narrowing sovereign immunity are now in effect.

Among other things, JASTA adds a new provision to Title 28 of the U.S. Code: 28 U.S.C. § 1605B. Subsection (b) of the new provision states:

(b) RESPONSIBILITY OF FOREIGN STATES.—A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

Subsection (d) provides: “A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.’’

Download Justice Against Sponsors of Terrorism Act (JASTA)

 

 

 

October 4, 2016 in Current Affairs, Federal Courts, International/Comparative Law, Subject Matter Jurisdiction | Permalink | Comments (0)

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)