Friday, January 12, 2018
Today the Supreme Court granted certiorari in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220), limited to the following question:
Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).
Thursday, January 11, 2018
I’ve just posted my recent article, Case Law, 97 B.U. L. Rev. 1947 (2017). Here’s the abstract:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
Thanks once again to the editors at the Boston University Law Review and to my colleagues who gave me such great comments and suggestions.
Monday, January 8, 2018
Zayn Siddique has posted on SSRN his article, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). Here’s the abstract:
One of the most dramatic exercises of a court’s equitable authority is the nationwide injunction. Although this phenomenon has become more prominent in recent years, it is a routine fixture of the jurisprudence of federal courts. Despite the frequency with which these cases arise, there has been no systematic scholarly or judicial analysis of when courts issue nationwide injunctions and little discussion of when they should issue such relief.
This Article presents the first comprehensive account of when nationwide injunctions issue. Earlier attempts to answer this question have focused exclusively on challenges to federal regulatory action and have concluded that the domain is one of unconstrained judicial discretion. By contrast, this Article considers not only cases involving the federal government but also those exclusively between private parties. The conclusion from this expanded focus is that courts determining the geographic scope of injunctions in disputes between private parties are largely guided by a single principle: The injunction should be no broader than “necessary to provide complete relief to the plaintiffs.” While the “complete relief” idea has echoes throughout equitable jurisprudence, it proves particularly robust at organizing the conditions under which nationwide injunctions issue. The Article then examines the body of cases involving the federal government to test the explanatory power of the complete relief principle. Although there is more variation, here too complete relief provides a useful tool for categorizing seemingly disparate cases under a common classification scheme. The Article concludes by arguing not only that the complete relief principle is descriptively useful for focusing debates about nationwide injunctions but also that Federal Rule of Civil Procedure 65 should be amended to codify the principle as a formal limit on the appropriate geographic scope of an injunction.
Sunday, December 24, 2017
Three interesting decisions during the last few days:
- On Thursday, the U.S. District Court for the Southern District of New York granted President Trump’s motion to dismiss in CREW v. Trump, a case alleging that Trump’s business interests violate the Domestic and Foreign Emoluments Clauses of the United States Constitution. Judge George B. Daniels grants Trump’s Rule 12(b)(1) motion to dismiss, finding that the plaintiffs lack Article III standing. The court also finds that the case presents a non-justiciable political question and that the plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication. The courts states, however, that it “does not reach the issue of whether Plaintiffs’ allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6)” or “whether the payments at issue would constitute an emolument prohibited by either Clause.”
- On Friday, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Hawaii v. Trump, affirming the district court’s order enjoining portions of President Trump’s Proclamation 9645 (also known as Travel Ban 3.0). The per curiam opinion—by Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez—concludes that the Proclamation exceeds the President’s statutory authority under the Immigration and Nationality Act.The court does not address whether the Proclamation also violates the Establishment Clause. The court does, however, limit the scope of the district court’s preliminary injunction to “foreign nationals who have a bona fide relationship with a person or entity in the United States.”
- And on Saturday, the U.S. District Court for the District of Columbia issued an order in ACLUF v. Mattis, denying the Defense Department’s motion to dismiss a petition for a writ of habeas corpus filed on behalf of an American citizen being detained by U.S. forces in Iraq. Judge Tanya S. Chutkan concludes that the American Civil Liberties Union Foundation (ACLUF) has standing under Article III as the detainee’s “next friend.” The court also orders the Defense Department to allow ACLUF “immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf,” and “to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes.”
Tuesday, December 12, 2017
Yesterday the U.S. Court of Appeals for the Ninth Circuit heard oral argument in United States v. United States District Court for the District of Oregon. The Ninth Circuit is considering the federal government’s petition for a writ of mandamus challenging the district court’s order in Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The district court had denied the government’s motion to dismiss a lawsuit that the court summarized as follows:
Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶ 5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.
217 F. Supp. 3d at 1233.
Friday, December 8, 2017
Today the U.S. Supreme Court granted certiorari in several cases, including these two:
United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”
China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”
Friday, December 1, 2017
Today the U.S. Supreme Court granted certiorari in Salt River Project Agricultural Improvement & Power District v. SolarCity Corp. It presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, November 8, 2017
Today the Supreme Court issued its decision in Hamer v. Neighborhood Housing Services, the first merits decision of the new Term. The Court unanimously holds that FRAP 4(a)(5)(C)’s limit on extensions of time to file a notice of appeal is not jurisdictional. (Rule 4(a)(5)(C) provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”)
Justice Ginsburg’s opinion begins:
This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell, 551 U. S. 205, 210–213 (2007), this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Ibid.; Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Because the Court of Appeals held jurisdictional a time limit specified in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016), we vacate that court’s judgment dismissing the appeal.
The Court left open, however, several issues for the lower court to address on remand, including:
(1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see id., at 23–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see id., at 29–43.
Tuesday, November 7, 2017
Now on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Sequential Progression of Dispute Resolution in Federal Courts. Allan reviews Alexandra Lahav’s recent article, Procedural Design.
Thursday, October 26, 2017
Now up on the Vanderbilt Law Review’s website is my essay, Lost in Transplantation The Supreme Court’s Post-Prudence Jurisprudence, 70 Vand. L. Rev. En Banc 289 (2017). It’s a response to Fred Smith’s article, Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017).
Wednesday, October 11, 2017
Yesterday the U.S. Supreme Court disposed of Trump v. International Refugee Assistance Project without addressing the merits. Ruling that “the appeal no longer presents a live case or controversy,” it vacated the Fourth Circuit’s judgment and remanded the case “with instructions to dismiss as moot the challenge to Executive Order No. 13,780” under United States v. Munsingwear.
Here’s the entirety of the Court’s Summary Disposition:
We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
Friday, September 29, 2017
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Adversity and Non-Contentiousness. Kevin reviews two recent pieces by Jim Pfander and Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017), and Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015), as well as Ann Woolhandler’s response to their arguments in Adverse Interests and Article III, 111 Nw. U. L. Rev. 1025 (2017).
Thursday, September 28, 2017
The deadline for filing an appeal has “jurisdictional consequences” and “should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). The deadline is measured from the entry of final judgment. 28 U.S.C. § 1291; Fed. R. App. P. 4. Despite the need for clarity, for at least forty-five years the courts of appeals have disagreed as to when their jurisdiction attaches if cases are consolidated and a final judgment is entered in only one of the cases.
The split and lack of clarity have widened with the passage of time—there are four different circuit rules for determining appellate jurisdiction in consolidated cases. This Court has twice set out to resolve the four-way split. The Court granted certiorari in Erickson v. Maine Central Railroad Co., 498 U.S. 807 (1990); but subsequently dismissed the petition. 498 U.S. 1018 (1990) (mem.). The Court again granted certiorari— and partially addressed the split—in Gelboim v. Bank of Am. Corp.,135 S.Ct. 897 (2015).
Gelboim held that for cases consolidated in multidistrict litigation, a final judgment in a single case triggers the “appeal-clock” for that case. But, by limiting its holding to multidistrict litigation, Gelboim left the split unresolved for cases consolidated in a single district under Fed. R. Civ. P. 42.
The question presented is: Should the clarity Gelboim gave to multidistrict cases be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, September 27, 2017
Representative Steve King (R-IA) introduced H.R. 3487, a bill to expand diversity jurisdiction by defining diversity as minimal diversity:
Section 1332 of title 28, United States Code, is amended by adding at the end the following:
“(f) For the purposes of this section, diversity of citizenship exists if at least one party adverse to any other party to the civil action does not share the same citizenship with that adverse party.”.
The bill has been referred to the House Judiciary Committee. We reported last year on a hearing held before the House Judiciary Committee that explored the adoption of minimal diversity.
Hat tip: Valerie Nannery
Tuesday, September 5, 2017
The Committee on Rules of Practice and Procedure (the Standing Committee) has published proposed amendments to several federal rules, requesting comments by February 15, 2018. Although this batch contains no proposed amendments to the Federal Rules of Civil Procedure, amendments to the Appellate Rules and the Rules for Section 2254 and Section 2255 proceedings may be of interest.
Thursday, August 17, 2017
This week the U.S. Court of Appeals for the Fifth Circuit issued its decision in Block v. Tanenhaus, reinstating a Loyola University professor’s claims for defamation and false light against the New York Times and two of its authors. The per curiam opinion acknowledges, but does not resolve, the interesting question of whether state “anti-SLAPP” statutes—such as Louisiana’s Article 971—apply in federal court under Erie:
Block argues that Article 971 is not applicable in federal court because it is procedural and because, even if it is substantive, it is in direct collision with the Federal Rules of Civil Procedure. The applicability of state anti-SLAPP statutes in federal court is an important and unresolved issue in this circuit.2 Unfortunately for Block, his arguments against application of Article 971 have been forfeited.
Footnote 2 describes the state of play in the Fifth Circuit:
We have noted on several occasions that this is an open question. See, e.g., Block, 815 F.3d at 221; Cuba v. Pylant, 814 F.3d 701, 706 & n.6 (5th Cir. 2016); Lozovyy, 813 F.3d at 582–83; Culbertson v. Lykos, 790 F.3d 608, 631 (5th Cir. 2015); Mitchell v. Hood, 614 F. App’x 137, 139 n.1 (5th Cir. 2015); NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 752–53 (5th Cir. 2014). These opinions post-date our decision in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009), which stated without explanation that “Louisiana law, including the nominally-procedural Article 971, governs this diversity case.” Id. 168–69. In Lozovyy, we noted the possibility that, particularly in light of our subsequent decisions, Henry could be interpreted as assuming the applicability of Article 971 for purposes of that case without deciding its applicability in federal courts more generally. Lozovyy, 813 F.3d at 582–83. Similarly, we noted in Pylant that Henry did not address “whether, under the Erie doctrine, the array of state procedural rules surrounding anti-SLAPP motions to dismiss (viz. discovery stays, accelerated timetables for decision, and the like) follow the core anti-SLAPP motion to dismiss into federal court.” Pylant, 814 F.3d at 706 n.6; cf. id. at 719 (Graves, J., dissenting) (addressing Erie question not reached by majority opinion and stating that similar anti-SLAPP statute in Texas is inapplicable in federal court because it is procedural (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)).
Wednesday, August 16, 2017
Last year we covered an interesting but somewhat obscure issue that came up in connection with the 2015 and 2016 amendments to Rule 4 of the Federal Rules of Civil Procedure. Inconsistencies in the text of these two amendments left it unclear which kinds of service were explicitly exempted from Rule 4(m)’s presumptive 90-day deadline for serving process. The situation prompted a letter to Congress by Sixth Circuit Judge Jeffrey Sutton, who was then the chair of the Standing Committee, seeking to clarify what the “net effect” of the two amendments would be.
This spring, the Supreme Court approved a new amendment that will remove any uncertainty on this question. Under the 2017 amendment, Rule 4(m) will read as follows:
If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 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).
Unless Congress intervenes, this amendment will go into effect on December 1, 2017.
Tuesday, June 27, 2017
On the last day of opinions for the October 2016 Term, the Court handed down decisions involving a range of civil procedure and federal courts issues:
- In California Public Employees’ Retirement System v. ANZ Securities, Inc., the Court held that the American Pipe tolling rule for class actions does not apply to the 3-year statute of repose in § 13 of the 1933 Securities Act.
- In Davila v. Davis, the Court held that, for purposes of a federal habeas petition, ineffective assistance by the prisoner’s state postconviction counsel cannot excuse a defaulted claim of ineffective assistance of appellate counsel.
- In Hernandez v. Mesa, which “involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil,” the Court remanded the case for the Fifth Circuit to reconsider its rulings on Bivens and qualified immunity.
- In Trump. v. International Refugee Assistance Project, the Court granted certiorari to review two rulings that enjoined Trump’s executive orders on immigration. Pending review, the Court stayed those injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
Tuesday, June 20, 2017
Yesterday the Supreme Court issued its decision in Ziglar v. Abbasi, covered earlier here and here. By a 4-2 vote, the Court reversed the Second Circuit and ordered the dismissal of most of the plaintiffs’ claims that they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. Justice Kennedy wrote the Opinion of the Court, joined (though not in its entirety) by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer wrote a dissenting opinion, joined by Justice Ginsburg. Justices Sotomayor, Kagan, and Gorsuch took no part (Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch was not on the Court at the time of oral argument). Although the cert. petitions presented three issues—Bivens, qualified immunity, and pleading standards—the bulk of the majority’s reasoning and analysis focused on Bivens.
Here are the concluding paragraphs from Justice Kennedy’s opinion:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
For more detailed coverage, check out:
Monday, June 12, 2017
Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”
Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:
We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.
A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”
Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.