Saturday, June 27, 2015

The Obergefell Aftermath in Alabama

By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).

According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.

So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.

Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson. 

The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.

 

 

 

June 27, 2015 in Class Actions, Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (1)

Monday, April 20, 2015

Shaq, Zippo & Shirley Jones

Earlier this month, U.S. District Judge Avern Cohn of the Eastern District of Michigan granted a Rule 12(b)(2) motion to dismiss in Binion v. O’Neal. The opinion is here.

The movant was defendant Shaquille O’Neal. The plaintiff Jahmel Binion—a Michigan resident—alleged claims for invasion of privacy, intentional infliction of emotional distress, defamation, and general negligence based on posts Shaq had made on Instagram and Twitter that included pictures of Binion. Although the court stated that Shaq’s posts were “highly offensive,” it found after a discussion of Zippo and the “effects test” from Calder v. Jones that jurisdiction in Michigan would not comport with due process.

Here’s the New York Daily News with some background on the incident that gave rise to the lawsuit.

 

 

 

April 20, 2015 in Current Affairs, In the News, Recent Decisions, Sports | Permalink | Comments (0)

Wednesday, March 11, 2015

New developments in the Alabama same-sex marriage litigation

The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:

The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.

Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.] 

Continue reading

March 11, 2015 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Annual Federal Courts Data, Final Government Arbitration Study Released

In a data bonanza for numbers geeks, the federal government separately released two reports yesterday: the long-awaited Final Arbitration Study by the Consumer Finance Protection Bureau and the less-awaited Judicial Business of the United States Courts: Annual Report of the Director 2014.

I will post more about each of these reports as I digest them.  The CFPB report is over 700 pages long and contains a wealth of empirical information about arbitration clauses in consumer financial instruments such as credit cards.  This information includes the effect of arbitration clauses on consumer prices (none) and the interplay of arbitration clauses and class actions.  As for the 2014 federal courts data, I will add pertinent measures to my existing database to enable a longer-term view.     

 

March 11, 2015 in Class Actions, Federal Courts, In the News | Permalink | Comments (0)

Tuesday, March 3, 2015

Alabama Supreme Court Issues Writ of Mandamus, Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples

This evening the Alabama Supreme Court granted the petition for a writ of mandamus that had been filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. Here is the 134-page per curiam opinion, which concludes with an order enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.

Here is the full text of the order:

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

The last sentence, of course, refers to the federal injunction issued by Judge Callie Granade against Mobile County probate judge Don Davis last month. 

 

 

 

March 3, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Tuesday, February 24, 2015

A New Federal Lawsuit, Plus Other Developments in the Alabama Marriage Litigation

A new lawsuit was filed in federal court today by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but Searcy’s petition to adopt McKeand’s biological son was denied because of Alabama’s prohibition on recognizing same-sex marriages.

The complaint filed today alleges that Mobile probate judge Don Davis—who is already subject to an injunction issued by Judge Granade in the Strawser case—has still refused to grant Searcy an “unqualified adoption.” Instead the order granting custody to Searcy (Exhibit C to the complaint) states that it is “qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.” Searcy seeks an injunction ordering Davis to grant the adoption sought and to strike the “qualified” order. According to the docket sheet, this new case—Searcy v. Davis—has been assigned to Judge Granade as well.

Meanwhile, the Alabama Supreme Court is still considering the Emergency Petition for a Writ of Mandamus that was filed earlier this month by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. The petition seeks an order compelling probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. Last week, Judge Granade had denied requests—both by the Strawser plaintiffs and by the Jefferson County probate judge who had sought to intervene in the federal litigation—to compel Alabama Attorney General Luther Strange to appear in the Alabama Supreme Court mandamus proceeding and cause its dismissal. So the ball is now squarely in the Alabama Supreme Court’s court. Briefing was complete as of last Friday (2/20), with a number of  Alabama probate judges filing responses opposing the mandamus petition (e.g., this response by the probate judges in Jefferson County and Madison County).

 

 

February 24, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, February 17, 2015

More Federal Court Filings in the Alabama Same-Sex Marriage Litigation

Lots of filing activity today in Strawser, one of the federal cases pending before Judge Granade on the constitutionality of Alabama’s same-sex marriage ban. As we covered earlier, the Alabama Supreme Court recently ordered briefing on an Emergency Petition for a Writ of Mandamus filed by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. This prompted the Jefferson County probate judge (who had been granting licenses to same-sex couples) to seek to intervene in the federal litigation.

Kent Faulk has this report on today’s filings, but here’s a summary:

You can find copies of all the important filings, rulings, and other documents here.

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, State Courts | Permalink | Comments (0)

Jefferson County Probate Judge Seeks to Intervene in Federal Same-Sex Marriage Lawsuit

Over the weekend, Jefferson County Probate Judge Alan King—who was one of the first to begin granting marriage licenses to same-sex couples last week—filed an Emergency Motion to Intervene in the Strawser case pending before Judge Granade in federal court. Kent Faulk as a report here.

The motion was prompted by the Emergency Petition for a Writ of Mandamus that two groups opposing same-sex marriage filed in the Alabama Supreme Court. Those groups (the Alabama Policy Institute and Alabama Citizens Action Program) filed that petition as “relators” for the State of Alabama, and they seek to order probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. The petition names as respondents several Alabama probate judges—including King—and names as Doe respondents every probate judge in Alabama. Late last Friday, over the dissent of two Justices, the Alabama Supreme Court set a briefing schedule requiring a response to the mandamus petition. One of the issues for which the Alabama Supreme Court ordered briefing was “any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction.” The respondents’ briefing is due this Wednesday (2/18), and the reply briefing is due on Friday (2/20).

In his motion to intervene in the federal Strawser case, King contends that the two groups who filed the mandamus petition are “acting in concert with and on behalf of the State of Alabama” and in doing so are violating the injunctions issued by Judge Granade. King’s motion also states:

“Judge King faces an imminent risk of being subjected to a state court Order that will put him in the position of having to choose either to disregard the United States Constitution, which he is sworn to uphold, thereby subjecting him to liability and perhaps personal liability for damages and attorney fees, or to disregard a state court Order thereby subjecting him to contempt proceedings, sanctions, and/or possible impeachment under Alabama law.” 

 

 

 

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Sunday, February 15, 2015

Alabama Supreme Court Orders Briefing on Mandamus Petition Seeking to Halt Same-Sex Marriages

Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).

Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:

“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including , but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”

Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:

“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling on the constitutionality of the ministerial acts a probate court performs, which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”

Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”

 

 

 

February 15, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Thursday, February 12, 2015

Ruling in Alabama Marriage Litigation: Judge Granade Grants Injunction Against Mobile Probate Judge

Following today's hearing, federal judge Callie Granade issued a preliminary injunction against Mobile County Probate Judge Don Davis. Here's the operative text:

It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

 

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Today's Federal Court Hearing in the Alabama Marriage Litigation (and More)

Reports are that today's hearing in Strawser has concluded with no ruling from Judge Granade.

One interesting update to the Strawser docket is a filing by Mobile County Probate Judge Don Davis entitled, Notice to this Court of Presently Conflicting and Potentially Conflicting Authority Based on Recent Filings. Included as attachments to this notice are two documents that I hadn't seen before.

One is the “In Rem Action” that Davis filed with the Alabama Supreme Court seeking clarification regarding Chief Justice Roy Moore's Sunday order that probate judges should not issue marriage licenses to same-sex couples. It starts on p.14 of the pdf file. The Alabama Supreme Court dismissed this petition yesterday, concluding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.”

The second is an “Emergency Petition for a Writ of Mandamus” that was apparently filed yesterday in the Alabama Supreme Court. It starts on p.44 of the pdf file. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, ostensibly as relators for the State of Alabama, and it seeks a writ of mandamus directing each probate judge in Alabama “not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, February 11, 2015

Developments in the Alabama Same-Sex Marriage Litigation Ahead of Tomorrow's Federal Court Hearing

As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.

This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:

There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.

According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.

And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).

As always, stay tuned. You can find copies of important rulings and documents here

 

 

 

February 11, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | 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)

Public Record Sheds Little Light on the "One Millionth Discovery Dispute"

Law.com and the ABA Journal both reported last week on an order entitled "Order on One Millionth Discovery Dispute" issued by Judge Rosemary Collyer in the case of Carolyn Herron v. Fannie Mae et al., No. 10-943 (D.D.C. February 2, 2015).  (The Blog of Legal Times earlier reported strained relations between the parties' counsel dating all the way back to 2011.) 

 

"The parties bring yet another discovery dispute before the Court," began the judge, proclaiming herself "exhausted with these disputes."  The order and the stories that reported it implied that the parties were equally to blame for the contentiousness of discovery and the repeated extensions of the discovery cutoff.    

 

So I wondered: what actually happened in this case?  Was discovery to blame for the case's five-years-and-counting duration?  If so, was there any way to attach responsibility, beyond the standard allegations of "overbroad fishing" by the plaintiff and "stonewalling" by the defendants?  

 

Through PACER I accessed the docket record and many of the documents filed in the case.  In my view, the most striking thing that I found is that it is virtually impossible for a member of the public using only PACER to get to the bottom of discovery in this case. 

 

This is not just because Rule 5 of the Federal Rules of Civil Procedure  prohibits the filing of discovery documents "until they are used in the proceeding or the court orders filing."  The public unavailability of most of the discovery disputes in this case on PACER results from two additional things.  First, Judge Collyer required the parties to bring discovery disputes to her attention by letter to her chambers, followed by a telephone conference, usually followed by a brief minute order.  Thus, unlike a formal motion to compel that would attach the discovery documents at issue as exhibits, rendering them available on PACER, the details of these disputes are not publicly available.  Second, protective orders were entered that required the filing under seal of the lion's share of the formal motions and responses that did get filed.       

Continue reading

February 9, 2015 in Discovery, In the News, Recent Decisions | Permalink | Comments (0)

Wednesday, January 7, 2015

Investigation Finds Specialists Turning Supreme Court Into "Echo Chamber"

A three-part Reuters investigation entitled "The Echo Chamber" (here, here, and here), which is discussed in this week's The New Yorker magazine, begins: "A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise." 

Hat tip: Tom Goldstein, SCOTUSBlog

January 7, 2015 in In the News, Supreme Court Cases | 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)

Thursday, May 22, 2014

National Law Journal Digitizes Federal Appellate Judges' Financial Reports

The National Law Journal has made available in digital form 257 financial disclosure reports for federal appellate judges for the year 2012 (the last year available), which the Journal had to retrieve manually. 

I clicked on the first name, Judge D. Brooks Smith, appointed to the Third Circuit in 2001.  Judge Smith received over $23,000 from Penn State University Dickinson School of Law as an adjunct professor in the fall semester of 2012.  He was also reimbursed for travel by two law school Federalist Society chapters in 2012 as a "speaker for education program."  

The reports should prove interesting reading.  

May 22, 2014 in Federal Courts, In the News | Permalink | Comments (0)

Friday, May 2, 2014

Reenactment of deposition argument over definition of "photocopy machine"

As a break from writing or grading your final exams (and to walk down the memory lane of law practice for some of us), here's a great reenactment of an argument during a deposition about the definition of a photocopier.  The short video by writer and director Brett Weiner is part of the New York Times Op-Docs series and is a verbatim transcript of a deposition from an Ohio case.

May 2, 2014 in Discovery, In the News | Permalink | Comments (0)