Monday, February 24, 2014
Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules. He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned comments with a committee of the Judicial Conference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."
Monday, February 10, 2014
Adam Liptak reports in the New York Times on last week’s appearance by Justices Ginsburg (Brooklyn) and Kagan (Manhattan) at the New York City Bar Association. A few of the funnier bits from Justice Kagan’s lecture involve civil procedure. From the article:
Justice Kagan also had a little fun with Justice Ginsburg’s writing and interests. “As a law professor, she was a pathmarking scholar of civil procedure,” Justice Kagan said, and then paused. “Pathmarking. Have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”
Justice Ginsburg is also an expert in comparative civil procedure, Justice Kagan said: “She wrote what I am confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg.”
Monday, December 9, 2013
The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."
Apparently without irony, Third Branch notes, "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."
Friday, December 6, 2013
Okay, I've succombed to bitcoin madness. A search today of the ALLCASES library in the Westlaw database yielded three cases with the word "Bitcoin" in them. The only one of any recency was the following.
In Entrepreneur Media, Inc. v. Smith, No. 2:10–mc–55–JAM–EFB (E.D. Cal. Nov. 26, 2013), a judgment creditor/plaintiff moved to compel the production of documents sought in aid of enforcement of its judgment against the judgment debtor/defendant. The document request included, "Any and all books, letters, papers, files, or documents . . . which show any wire transfer, electronic distribution and/or transmission of funds, purchase of debit cards, acquisition and use of any online digital banking services, such as Bitcoin, and/or any and all other papers which show any account in YOUR name, and moreover, any account by any entity, including any digital entity, for the TIME PERIOD." Without addressing any issue that might have been presented by the inclusion of Bitcoin transactions in the document request, the court granted the motion to compel this particular request (although it denied the motion as to other requests).
Friday, November 15, 2013
H.R. 2655, the so-called "Lawsuit Abuse Reduction Act of 2013," passed the House of Representatives yesterday 228-195 (sigh . . . ).
In 2011, Professor Lonny Hoffman testified against this bill before the House Judiciary Committee.
Wednesday, November 6, 2013
Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:
- Emily Bazelon, Slate: Shut Up, Judge!
- Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
- Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
- The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)
More coverage here.
Sunday, November 3, 2013
We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:
- Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
- Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
- Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
- Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps
Friday, November 1, 2013
There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).
- Monday, November 4: SCOTUS oral argument in Walden v. Fiore (personal jurisdiction and venue)
- Tuesday, November 5: Senate Judiciary Committee Hearing, Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice? (witnesses: Arthur Miller, Andrew Pincus, Sherrilyn Ifill)
- Tuesday, November 5: SCOTUS announces one or more opinions in argued cases (could it be Daimler v. Bauman?)
- Tuesday, November 5: SCOTUS oral argument in Sprint v. Jacobs (Younger abstention)
- Wednesday, November 6: SCOTUS oral argument in Mississippi ex rel. Jim Hood v. AU Optronics Corp. (Class Action Fairness Act)
- Thursday, November 7: Public hearing on the proposed amendments to the Federal Rules of Civil Procedure
Thursday, October 31, 2013
Second Circuit Stays SDNY's Stop-and-Frisk Rulings Pending Appeal, Orders District Judge Removed From Case
In August, U.S. District Judge Shira Scheindlin ruled that the New York City Police Department’s “stop and frisk” policy was unconstitutional and ordered a series of remedies. Today the Second Circuit not only stayed Judge Scheindlin’s orders and opinions pending appeal; it also ordered that she be taken off the case. From the Second Circuit’s order (footnotes omitted):
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
Friday, October 25, 2013
Sunday, October 13, 2013
Lee Epstein (USC): “Claims about the Roberts court’s activism seem overwrought.”
Suzanna Sherry (Vanderbilt): "[T]he Supreme Court had erred more often in sustaining laws than in striking them down. 'Too much of a good thing can be bad,' she wrote, 'and democracy is no exception.'" Professor Sherry's article, entitled "Why We Need More Judicial Activism," is forthcoming in early 2014. Here's the abstract:
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.
Lee Epstein (USC) & Andrew Martin (Wash U): “In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws.” Professors Epstein and Martin co-authored an article last year on the topic of judicial activism and the Roberts Court, entitled "Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State, and Local Laws."
Liptak's article also quotes a number of others, including several of the Justices themselves. The article is worth a read for those interested in the judicial activism debate.
Monday, September 30, 2013
The BLT: The Blog of LegalTimes reports that the Justice Department has released a Contingency Plan for FY 2014 (which starts tomorrow) "in the event of a lapse in appropriations" (the phrase used in the Contingency Plan). Most Civil Division employees will be subject to furlough because their activities do not relate to "emergencies involving the safety of human life or the protection of property," or meet some other category of exemption. Although the Administrative Office of the U.S. Courts has indicated "that federal courts will continue to hear and decide cases without interruption," Justice is directing its civil litigators "to approach the courts and request that acvtive cases, except for those in which posponement would compromise . . . the safety of human life or the protection of property, be postponed until funding is available."
Thursday, September 26, 2013
The federal judiciary, which has been releasing dire warnings about its financial situation for months, has just released an announcement on Third Branch News that reads:
In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.
Monday, September 9, 2013
A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable. Read more . . .
Wednesday, September 4, 2013
Jim Vertuno (AP) covers a recent order by a Texas state court judge compelling Lance Armstrong to respond to discovery requests. Here are some excerpts from the report, Judge Orders Armstrong to Answer Doping Questions:
Nebraska-based Acceptance Insurance Holding is seeking the information in its lawsuit to recover $3 million in bonuses it paid Armstrong from 1999 to 2001.***
Travis County District Judge Tim Sulak last week ordered Armstrong to provide documents and written answers to a series of questions by the end of September. The case has been set for trial in April 2014.
The questions seek information dating to 1995 and ask Armstrong to detail who was paid for delivered performance-enhancing drugs, who determined what amount to use and administered them, and who was aware of his drug use. Acceptance specifically asks for information on when and how Armstrong's closest friends, advisers, ex-wife and business partners learned of his doping.
Monday, August 26, 2013
Sunday, August 25, 2013
Adam Liptak has this story in today’s New York Times: Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay
Tuesday, August 13, 2013
Here’s Adam Liptak’s latest story, When Lawyers Cut Their Clients Out of the Deal, which discusses a recent Ninth Circuit decision on cy pres settlements that is the subject of a pending Supreme Court cert. petition, Marek v. Lane (No. 13-136).
Sunday, August 11, 2013
At the American Bar Association Annual Meeting in San Francisco, a panel entitled "Are Courts Dying? The Decline of Open and Public Adjudication" was moderated by Professor Judith Resnik. Participants discussed "budget cuts and the generally high cost of legal representation."
Friday, July 12, 2013
The Atlantic online has posted an essay entitled "How the Sequester is Holding up Our Legal System" by Andrew Cohen. It describes federal judges' concerns about issues raised if the budget cuts reach into the next fiscal year. "The sequester . . . represents an assault by the legislative and executive branches upon core judicial functions. . . . The Administrative Office of the United States already has indicated that it may be forced to eliminate civil jury trials in the month of September . . ."
The essay also describes public apathy about the issue.
Hat tip: Howard Bashman, @howappealing.