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.
Wednesday, July 3, 2013
The Legal Intelligencer reports that a Pennsylvania lower court has upheld the statutory $500,000 limit on damages awards against governmental entities, reducing a $14 million award to a plaintiff for loss of her leg, and setting the stage for a constitutional challenge to the damages cap in the Pennsylvania Supreme Court.
Monday, July 1, 2013
Today the U.S. Supreme Court announced that Scott Harris has been appointed to be the twentieth Clerk of the U.S. Supreme Court, effective September 1. Congratulations!
Coincidentally, the new Clerk’s first and last names are the lead parties of a fairly recent Supreme Court merits decision. Readers will recall Scott v. Harris, 550 U.S. 372 (2007), the summary-judgment-by-car-chase-video case. (You can see the video here.)
Sunday, June 23, 2013
Friday, June 14, 2013
(Hat Tip: Jack Preis)
Sunday, May 5, 2013
Today’s New York Times features a story by Adam Liptak, Corporations Find a Friend in the Supreme Court, which discusses several of the Court’s recent decisions on civil procedure, including Comcast v. Behrend, Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, Kiobel v. Royal Dutch Petroleum, and Standard Fire Insurance v. Knowles.
Tuesday, March 26, 2013
Wednesday, March 6, 2013
Perhaps I should have titled this post "Lifetime Employment for Civil Procedure Professors Announced."
The National Conference of Bar Examiners has announced that Civil Procedure will be included as the seventh topic tested on the Multistate Bar Examination effective with the February 2015 administration.
With the addition of Civil Procedure, the MBE will continue to have 200 questions, 190 of which are scored (10 are unscored pretest items). The difference will be that there will be 28 Contracts items, and 27 items each for the remaining six topics (Civ Pro, Con Law, Crim Law and Pro, Evidence, Real Property, and Torts), for a total of 190 tested questions.
As of July 2013, every state except Louisiana will administer the MBE.
The "test specifications" (I assume this means the subjects possibly tested by) MBE Civil Procedure items will be announced no later than June 30, 2013.