Wednesday, February 11, 2015

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

 

 

February 11, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Tuesday, February 10, 2015

Where Things Stand in the Alabama Same-Sex Marriage Litigation

Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.

On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.

On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).

You can find copies relevant rulings and documents here.

 

February 10, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

 

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, February 9, 2015

The Latest in the Alabama Same-Sex Marriage Litigation

Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.

Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:

“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”

Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:

“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”

And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”

As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:

 [Updated to include the statement by Governor Bentley.]

 

 

 

February 9, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 3, 2015

Dart Cherokee and Class-Certification Appeals under Rule 23(f)

We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.

Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”

 

February 3, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, January 26, 2015

Leong on Rush on Federalism and Judicial Diversity

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. 

 

 

 

January 26, 2015 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Saturday, January 24, 2015

SCOTUS Decision in Gelboim v. Bank of America: Appellate Jurisdiction & MDL Proceedings

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.

 

January 24, 2015 in Federal Courts, Federal Rules of Civil Procedure, MDLs, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, January 16, 2015

Tushnet on the Federal Courts Junior Scholars Workshop

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.

 

January 16, 2015 in Conferences/Symposia, Federal Courts, Weblogs | Permalink | Comments (0)

Saturday, January 3, 2015

From Pneumatics to Tortoises: The Chief Justice's 2014 Year-End Report

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.

 

January 3, 2015 in Federal Courts, In the News | Permalink | Comments (0)

Monday, December 15, 2014

SCOTUS Decision in Dart Cherokee: What Must a Notice of Removal Contain? (And More!)

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.

And later:

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. 

 

 

 

December 15, 2014 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Sunday, December 14, 2014

SCOTUS Cert. Grants of Interest: Bullard & Toca

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?

For more information, and to keep tabs on the briefs as they start to roll in, check out the SCOTUSblog case files for Bullard and Toca.

 

 

 

December 14, 2014 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

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.

 

 

December 11, 2014 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Friday, December 5, 2014

Standing & SCOTUS

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:

 

 

December 5, 2014 in Federal Courts, Standing, Subject Matter Jurisdiction, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, December 1, 2014

Steinman on Larsen on Factual Precedents

Now running on the Courts Law section of JOTWELL is my essay, Judicial Fact Making. I review Allison Orr Larsen’s article, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013).

 

December 1, 2014 in Adam Steinman, Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (1)

Friday, November 14, 2014

Pfander on Bruhl on the Supreme Court and Lower-Court Precedent

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).

 

 

November 14, 2014 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (1)

Tuesday, November 4, 2014

Gerhardt and Stein on Federal Judicial Selection 1789-1861

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.

Abstract:

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.

November 4, 2014 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, November 3, 2014

Vladeck on Richman and Reynolds on Appellate Injustice

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).

 

November 3, 2014 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, October 14, 2014

The Advisory Committee's Gargantuan New Agenda

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.

October 14, 2014 in Class Actions, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, September 16, 2014

Judicial Conference Passes Proposed FRCP Amendments

The National Law Journal reports that the Judicial Conference passed the proposed amendments to the Federal Rules of Civil Procedure today.  The amendments next to go the Supreme Court for approval.

September 16, 2014 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, August 18, 2014

Hastings Law Journal Symposium on Atlantic Marine

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/.

Download HLJ Symposium Flyer

 

 

August 18, 2014 in Conferences/Symposia, Federal Courts, Supreme Court Cases | Permalink | Comments (0)