Monday, November 27, 2017
Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, In Search of a Parsimonious Model of Personal Jurisdiction. Roger reviews Bill Dodge’s and Scott Dodson’s recent article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review.
Tuesday, November 14, 2017
UNIVERSITY OF DETROIT MERCY LAW REVIEW
CALL FOR PROPOSALS
The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between
The University of Detroit Mercy Law Review is pleased to announce its annual academic
Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.
This Symposium will contemplate a broad range of issues associated with Sanctuary Cities –
presentations may focus on a specific era – past, present, or future – or may discuss a subject
through the past, present and propose future solutions. Presentation topics could include, but are
not limited to:
• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.
The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact
information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not
required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review.
The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication.
The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at email@example.com. Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at firstname.lastname@example.org.
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 25, 2017
Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action.
Tuesday, October 24, 2017
Access to Justice and the Legal Profession in an Era of Contracting Civil Liability (Fordham Law School, Oct. 27)
This Friday (10/27) Fordham Law School is hosting a colloquium entitled Access to Justice and the Legal Profession in an Era of Contracting Civil Liability.
Here is the schedule:
(H/T: Suja Thomas)
Thursday, October 19, 2017
The University of Florida Levin College of Law is seeking applications for the Ed Rood Chair of Trial Advocacy and Procedure. They are particularly interested in scholars whose work focuses on Civil Procedure, Federal Courts, Evidence, Trial Practice, Professional Responsibility, and other litigation-related courses.
Here is the full announcement:
Wednesday, October 18, 2017
Michael S. Green (William & Mary) has posted The Return of the Unprovided-For Case to SSRN.
The unprovided-for case is a puzzle that arises under governmental interest analysis, the predominant choice-of-law approach in the United States. As its name suggests, in the unprovided-for case the law of no jurisdiction seems to apply. There is a gap in the law. After its discovery by Brainerd Currie in the 1950s, the unprovided-for case proved to be an embarrassment for interest analysts and a focal point for critics. In 1989, however, Larry Kramer published an argument that the unprovided-for case is a myth. There is no gap in the law. Kramer’s argument has been well-received, so much so that discussion of the unprovided-for case has receded among advocates and critics of interest analysis alike.
But the myth is a myth. What Kramer actually shows is not that preexisting law always applies in the unprovided-for case, but that regulatory policies can always be found to recommend law to fill the gap that the unprovided-for case creates. These policies are reasons for laws. They are not themselves laws. Law is not found in the unprovided-for case — it is made.
One might think that looking to freestanding regulatory policies to create law in the unprovided-for case is not a serious problem, since that is what courts normally do when there is a gap in the law. One would be wrong. If a court must look to freestanding regulatory policies to create law in the unprovided-for case, it must do the same in all choice-of-law cases, for these policies are relevant to them too. Interest analysis collapses as a result, leaving no clear choice-of-law method in its place.
Thursday, October 12, 2017
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses? Linda reviews Symeon Symeonides’ recent article, What Law Governs Forum Selection Clauses, which is forthcoming in the Louisiana Law Review.
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 19, 2017
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Trouble with Qualified Immunity. Fred reviews Will Baude’s recent article, Is Qualified Immunity Unlawful?, which is forthcoming in the California Law Review.
Monday, September 18, 2017
Here’s the announcement from the Administrative Conference of the United States (ACUS):
The Forum on Federal Administrative Adjudication, which will take place on Friday, September 29 from 9:00 a.m. to noon, will now be held in Room 50 of the Dirksen Senate Office Building.
More information, including the final agenda, can be found on the Conference’s website (click here). If you are interested in attending, please RSVP to email@example.com, and include the following subject line in your email: “RSVP for Adjudication Forum.” If you have questions about the forum, please contact Attorney Advisor Dan Sheffner (firstname.lastname@example.org).
(H/T: Adam Zimmerman)
Wednesday, September 6, 2017
Eleventh Circuit reverses grant of summary judgment against plaintiffs challenging Alabama’s lethal injection protocol
Last week the U.S. Court of Appeals for the 11th Circuit issued a unanimous decision in Grayson v. Warden. The plaintiffs-appellants are challenging Alabama’s three-drug lethal injection protocol, and the Eleventh Circuit reversed the district court’s grant of summary judgment against them. The opinion considered a number of procedural issues, including the summary judgment standard, law-of-the-case doctrine, and statute of limitations.
With respect to summary judgment, the Eleventh Circuit found that it was error for the district court to reject at the summary judgment phase the appellants’ contention that a single-drug protocol was an available alternative method of execution that sufficiently reduced the risk of pain:
The District Court reached this conclusion with respect to Appellants’ proposed single-drug protocol based on the testimony of the ADOC’s General Counsel, Anne Adams Hill. In deciding to credit Hill’s testimony and then weigh it against Appellants’ proof, the District Court functioned as a finder of fact and ultimate decision maker and therefore erred. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court’s role to weigh conflicting evidence or to make credibility determinations; the non-movant’s evidence is to be accepted for purposes of summary judgment.”). The Court performed the same role when it determined the credibility of testimony and weighed the evidence in summarily disposing of Appellant’s midazolam proposal.
Also notable are the concluding pages of the opinion, which criticized the pleadings on both sides:
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.
Friday, September 1, 2017
Dustin Benham forwarded the following announcement:
The AALS Section on Teaching Methods is hosting a teaching discussion forum via conference call on September 15, 2017, from 2-3 pm ET. During the call, a few presenters will present a teaching problem and solution for discussion with the group. We welcome your participation in the call but do ask that you RSVP via our short online form here.
Also, the Section needs presenters (on any teaching topic) for the September 15th call. The format is informal – all we ask is that you submit a short topic proposal in advance to allow us to coordinate and organize the call. Each topic and discussion usually run about 15 minutes. You can submit your proposal at the RSVP form mentioned above. The deadline for RSVPs and proposals has been extended to Friday, September 8, 2017.
For more information about the Teaching Methods conference call, descriptions of previous discussions, and online audio from the last call, see the full Teaching Methods newsletter here.
Wednesday, August 30, 2017
Bill Dodge and Scott Dodson have posted on SSRN a draft of their article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review. Here’s the abstract:
The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action is federal or state law, and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction and alien defendants that will resonate with the Supreme Court.