Tuesday, January 3, 2017

2017 AALS Annual Meeting

The 2017 AALS Annual Meeting is happening in San Francisco this week. Here are some panels that may be of interest:

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January 3, 2017 in Conferences/Symposia, Federal Courts, Federal Rules of Civil Procedure, MDLs | Permalink | Comments (0)

Saturday, December 31, 2016

Chief Justice Roberts Issues Year-End Report on the Federal Judiciary

The New Year’s Eve moment everyone has been waiting for: Chief Justice Roberts’ 2016 Year-End Report on the Federal Judiciary.

The report emphasizes the work of federal district court judges, and there are several references to civil procedure – including the 2015 FRCP amendments that were the focus of last year’s report:

The judge is responsible for supervising the important pretrial process and conducting the trial itself. He resolves discovery disputes, manages the selection of the jury, rules on the admission of evidence, determines the proper and understandable instruction of the jury, and resolves any issues surrounding the acceptance of the verdict and entry of judgment. Each of those steps requires special knowledge, sensitivity, and skill. The judge must have mastery of the complex rules of procedure and evidence and be able to apply those rules to the nuances of a unique controversy.

* * *

As I explained in my 2015 Year-End Report, the Judicial Conference—the policy making body of the federal courts—has revised the Federal Rules of Civil Procedure to emphasize the judge’s role in early and effective case management. Those procedural reforms encourage district judges to meet promptly with the lawyers after the complaint is filed, confer about the needs of the case, develop a case management plan, and expedite resolution of pretrial discovery disputes. The reforms are beginning to have a positive effect because already extremely busy judges are willing to undertake more active engagement in managing their dockets, which will pay dividends down the road. A lumberjack saves time when he takes the time to sharpen his ax. This year, we will take a step further and ask district judges to participate in pilot programs to test several promising case management techniques aimed at reducing the costs of discovery.

Download 2016 Year-End Report on the Federal Judiciary

Now I can return to revising my article, Toward a Lumberjack Theory of Procedure.

 

 

 

December 31, 2016 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, December 29, 2016

Interesting Seventh Circuit Decision on Summary Judgment

It’s a “nonprecedential disposition,” but the Seventh Circuit’s decision last week in Couvillion v. Speedway LLC features an interesting exchange about summary judgment. The majority (Chief Judge Wood & Judge Easterbrook) affirms the lower court’s grant of summary judgment against a plaintiff who sued Speedway after she was injured while adding air to her tires at a Speedway service station. In the final paragraph, the court writes:

Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g., Countrymark Cooperative, Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. App. 2008) (“negligence cases are especially fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”) * * * . Maybe Indiana’s judiciary would have submitted Couvillion’s claim to a jury. But federal rules govern the allocation of tasks between judge and jury in federal court. See, e.g., Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment. We know from Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and other decisions, that federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court.

There are a couple of interesting points here. One is about the Erie doctrine. My personal view is that the interplay between FRCP 56 and state law is not quite so simple, and that a proper understanding might require a federal court adjudicating a state-law claim to follow state law on certain aspects of summary-judgment practice. [See What Is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)].

Another point—which Judge Sykes emphasizes in her dissent—has to do with the majority’s assertion that “In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment.” Judge Sykes writes in response:

Under Rule 56 (and in state practice), a judge may resolve the case by summary judgment only if there is no material factual dispute “and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (emphasis added); see also Ind. R. Trial P. 56(C). The historical facts are undisputed here, but it doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury determine Speedway’s liability unless on this record no reasonable jury could find a breach of duty under §§ 343 and 343A.

There would seem to be federalism dimensions with respect to this issue as well—is it by state or federal law that we decide whether the movant is “entitled to judgment as a matter of law”?

Download Couvillion v Speedway (7th Cir)

(H/T Raffi Melkonian)

 

 

 

December 29, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

Wednesday, December 28, 2016

Bruhl on the Jurisdictional Canon

Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.

This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

 

 

 

 

December 28, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, December 23, 2016

New from the Administrative Office of U.S. Courts: Just the Facts

Here is the first installment of “Just the Facts,” which was posted this week. From the introduction:

Just the Facts is a new feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to the data team.

(H/T: S.I. Strong)

 

 

 

December 23, 2016 in Federal Courts | Permalink | Comments (0)

Wednesday, December 14, 2016

SCOTUS Cert Grant on Venue in Patent Cases: TC Heartland v. Kraft Foods

Today the U.S. Supreme Court granted certiorari in TC Heartland LLC v. Kraft Food Brands Group LLC. Here is the question presented set forth in the cert petition (including the usual wind-up):

The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides .... " The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

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

 

 

 

December 14, 2016 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, December 8, 2016

Effron on Gardner on Forum Non Conveniens

Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).

 

 

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

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)