Friday, August 25, 2017
The deadline to submit papers has been extended to Tuesday, September 5, 2017. Here’s the updated announcement:
The AALS Section on Conflict of Laws invites papers for its program entitled “Crossing Borders: Mapping the Future of Conflict of Laws Scholarship” at the AALS Annual Meeting, January 3-6, 2018, in San Diego.
Thursday, August 24, 2017
On October 13, 2017, the Vanderbilt Law Review will be hosting a symposium entitled The Future of Discovery. From the announcement:
The Vanderbilt Law Review and Professor Brian Fitzpatrick are pleased to announce the 2017 Vanderbilt Law Review Symposium: The Future of Discovery. This year’s Symposium will take place on Friday, October 13, 2017 at Vanderbilt Law School. The Symposium will feature three panels of scholars discussing their recent work in the area of e-discovery, a keynote address delivered by U.S. District Judge Paul W. Grimm, and a round-table discussion with sitting federal judges to consider advances in and future challenges of discovery. The Symposium is open to practicing attorneys, and CLE credit will be available.
Panelists presenting at the Symposium will include:
Sergio J. Campos (University of Miami School of Law)
E. Donald Elliot (Yale Law School)
Jessica Erickson (University of Richmond School of Law)
Brian T. Fitzpatrick (Vanderbilt University Law School)
Robert Klonoff (Lewis & Clark Law School)
Alexandra D. Lahav (University of Connecticut School of Law)
Johnathan R. Nash (Emory University School of Law)
Martin H. Redish (Northwestern University School of Law)
David Rosenberg (Harvard Law School)
Linda Sandstorm Simard (Suffolk University Law School)
Joanna M. Shepherd (Emory University School of Law)
Paul Stancil (Brigham Young University Law School)
Jay Tidmarsh (University of Notre Dame Law School)
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)).
California Western School of Law (CWSL) is seeking applications from entry-level and junior-lateral candidates for a tenure-track position to begin on or about August 1, 2018. We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. The Appointments Committee is particularly interested in candidates with a strong desire to teach civil procedure, family law, immigration law, tax, or trusts/estates. CWSL welcomes applications from individuals who would contribute to the vibrancy and diversity of our faculty.
Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school located in downtown San Diego, California. We have the distinction of being San Diego’s oldest law school and are known for our commitment to preparing students to be practice-ready lawyers. Notably, our graduates regularly outperform the statewide average on the California bar exam. CWSL is the recipient of numerous community service awards, including the State Bar of California President’s Pro Bono Service Award, and the federal government’s President’s Higher Education Community Service Honor Roll. We are also home to numerous outstanding programs, including the California Innocence Project, Community Law Project, and the New Media Rights Program. Members of the faculty have national and international reputations for their scholarly contributions. Our faculty is dedicated to the community, teaching, and scholarship.
A substantial percentage of CWSL students come from diverse cultural, ethnic, and socioeconomic backgrounds. We are committed to developing a faculty that better reflects this reality, and to this end, we are particularly interested in candidates who are committed to teaching a diverse student body. All candidates are encouraged to submit a statement to our Appointments Committee addressing their commitment to diversity and how they can contribute to the educational experience of our students.
Please direct application materials (including cover letter, CV, and diversity statement) and questions to the chair of the Appointments Committee, Professor William Aceves, at the following email address: firstname.lastname@example.org. The other committee members are Professors Hannah Brenner, Nancy Kim, and Joanna Sax. The Appointments Committee is attending the AALS faculty recruitment conference in November 2017. Please reference your AALS FAR form number in any correspondence. For candidates seeking consideration outside of the AALS faculty recruitment conference, we encourage the submission of applications before September 1, 2017.
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.
Thursday, August 10, 2017
Monday, July 31, 2017
Brian Farkas has posted The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act to SSRN.
Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Clarence Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court. Indeed, he has been among the most vocal and consistent opponents of the application of the FAA in state court proceedings. Yet his voice has always been in dissent, most recently in the December 2015 decision in DIRECTV, Inc. v. Imburgia. This Article represents the most comprehensive examination to date of Justice Thomas’ views on both the FAA and arbitration more broadly. Beginning with a background on the FAA’s history and the Supreme Court’s arbitration jurisprudence, it explores his unique judicial philosophy and its intersection with arbitration policy. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes.
Friday, July 28, 2017
This article by Bruce Kaufman in Bloomberg BNA describes the currently "stalled" status of these bills in the Senate.
Wednesday, July 19, 2017
Betty Dukes, the lead plaintiff in the historic class action Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Calif.), has died at age 67. Although the lower courts granted and affirmed class certification in a gender- and race-based discrimination suit, the Supreme Court, in a 5-4 decision authored by Justice Antonin Scalia for the majority, reversed the grant of class certification.
Hat tip: Janet Alexander.
Wednesday, July 12, 2017
An announcement from the CSLSA:
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
Hotel rooms are now available for pre-booking. The conference hotel is the Holiday Inn Conference Center in Carbondale. To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL. SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events. Other hotel options (without shuttle service) are listed on our website. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.
Monday, July 10, 2017
From the summary:
First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.
Friday, July 7, 2017
Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re Petrobras Securities. Among other things, the panel’s opinion addresses the role of “ascertainability” for class certification under FRCP 23:
“We take this opportunity to clarify the ascertainability doctrine’s substance and purpose. We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement. The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”
Specifically, the Second Circuit rejected what it called “[t]he heightened ascertainability test, as articulated by the Third Circuit,” which “treats administrative feasibility as an absolute standard: plaintiffs must provide adequate ‘assurance that there can be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’”
“We conclude that an implied administrative feasibility requirement would be inconsistent with the careful balance struck in Rule 23, which directs courts to weigh the competing interests inherent in any class certification decision.”
Wednesday, June 28, 2017
The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures. The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."
This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions: Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.
A few interesting highlights from the discovery order:
Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess." Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."
Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."
Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."
This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce. More info here.
Tuesday, June 27, 2017
The US Federal Judicial Center recently published International Human Rights Litigation: A Guide for Judges. This Guide was written to assist federal judges in managing and resolving federal cases involving international human rights claims, and it provides a comprehensive analysis of all substantive and procedural issues involved. A detailed analysis is provided on the Alien Tort Statute, Torture Victim Protection Act, and other federal statutes. The book also includes a model scheduling order for human rights cases as well as case summaries, tables, and research references, current as of Dec 31, 2016.
The Guide was drafted to be neutral as between human rights plaintiffs and defendants, and thus should provide useful information for all. Because it was commissioned by a federal government agency (the FJC) for the benefit of federal judges, lawyers, and agencies, the Guide has been placed in the public domain and is available as a free resource. Readers can freely distribute, print, and otherwise use and transmit the Guide in its present form, provided that no changes are made to the manuscript itself. You can find and download the Guide by searching on the FJC website or via this link to the author’s SSRN site (Abstract ID # 2978170).
Recommended citation: David Nersessian, International Human Rights Litigation: A Guide for Judges 1-178 (Federal Judicial Center 2016).
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.”
Thursday, June 22, 2017
I have posted my newest article, "Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion" to SSRN.
In litigation days of old, American courts jealously guarded their procedural powers through the doctrine of “ouster” and blocked most litigant efforts to create their own private procedural landscape. By the end of the Twentieth Century, the ouster doctrine was gone. Litigants now use an increasingly sophisticated set of contractual agreements that alter or displace standard procedural rules. But this is not to say that judicial power has been displaced. In fact, the downfall of traditional ouster doctrine was accompanied by a rise in the scope and use of judicial discretion in procedural matters, culminating in the emergence of the “managerial judge” with administrative powers and responsibilities that would have seemed entirely foreign to a modern judge’s earlier counterpart.
This Article examines the link between the scope of judicial discretion and the acceptance or even endorsement and encouragement of private procedural ordering (the use of private agreements to alter or avoid procedural rules). Examples from civil procedure demonstrate the varying dynamics of the relationship between judicial discretion and private procedural ordering, from the uneasy compatibility found in the rules of discovery to the outright clash of values in the enforcement of forum selection clauses.
The relationship between judicial discretion and private procedural ordering is not coincidental. Rather, it reveals that the civil litigation landscape is one in which litigants are “co-managers” of litigation alongside the increasingly “managerial” judges. More controversially, this relationship also shows that litigants are also “co-interpreters” of procedural rules alongside judges, sharing the authority to shape the contours of the meaning, scope, and application of many procedural rules.
Now on the Courts Law section of JOTWELL is Nancy Leong’s essay, On Gender Disparity and Dialogue. Nancy reviews Jennifer Mika’s recent article, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017).
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 19, 2017
Today the Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court, covered earlier here and here. By an 8-1 vote, the Court reverses the California Supreme Court’s conclusion that asserting personal jurisdiction over Bristol-Myers Squibb (BMS) was constitutional. Justice Alito writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan and Gorsuch. Justice Sotomayor is the lone dissenter.
The case involves a “group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States”—who sued BMS in California state court alleging injuries arising from BMS’s drug Plavix. The issue was whether personal jurisdiction was proper over the claims by plaintiffs who were not residents of California. The California Supreme Court concluded that although BMS was not subject to general jurisdiction in California, the nonresidents’ claims were covered by specific jurisdiction.
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.