Tuesday, April 17, 2018

SCOTUS Decision in Wilson v. Sellers: Habeas Review of Unexplained State Court Decisions

Today the Supreme Court issued its decision in Wilson v. Sellers, covered earlier here. The Court splits 6-3 over the proper standard for assessing unexplained state court decisions in the context of federal habeas proceedings. Justice Breyer writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch writes a dissenting opinion, joined by Justices Thomas and Alito.

Justice Breyer’s majority opinion begins:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101–102 (2011).

When the last state court to address the merits of the petitioner’s claims does not provide any reasons, however, this inquiry is “more difficult.” Here’s what federal the federal habeas court should do:

We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

This “look through” approach is different from the one urged by the State (and by the dissenters). That approach would have precluded federal habeas relief as long as a reasonable basis “could have supported” the state court’s rejection of the petitioner’s claims.

The big question going forward will be what is required to rebut the majority’s look-through presumption. One particular issue will be the extent to which the unreasonableness of the looked-through-to lower state court opinion will itself be a basis for rebutting the presumption that the highest state court adopted that same unreasonable reasoning. Justice Breyer indicates that “it is more likely that a state supreme court’s single word ‘affirm’ rests upon alternative grounds where the lower state court decision is unreasonable than, e.g., where the lower court rested on a state-law procedural ground” and that “the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning.”

Justice Gorsuch’s dissent emphasizes this aspect of the majority opinion, calling it “welcome news of a sort.” He writes: “If, as the Court holds, the ‘look through’ presumption can be rebutted ‘where the lower state court decision is unreasonable,’ it’s hard to see what good it does.” It is not clear that the majority’s opinion goes as far as Justice Gorsuch suggests. But what will be sufficient to rebut the majority’s look-through presumption is likely to be a major issue in the wake of the Court’s decision.

 

 

 

 

April 17, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, April 16, 2018

Wasby on Visiting Judges in the Federal Courts of Appeals

Steve Wasby has published Borrowed Judges: Visitors in the U.S. Courts of Appeals. (Here’s the link on Amazon.)

[H/T: Alan Childress]

 

 

April 16, 2018 in Books, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Friday, April 13, 2018

Bradt & Clopton on MDL, Public Law & Trump

Andrew Bradt and Zach Clopton have published their essay, MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation, 112 Nw. U. L. Rev. 905 (2018). Here’s the abstract:

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.

In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally.

 

 

 

April 13, 2018 in Federal Courts, MDLs, Recent Scholarship | Permalink | Comments (0)

Wednesday, April 11, 2018

Litman on Convergence of Remedial Restrictions

Leah Litman has posted on SSRN a draft of her article, Remedial Convergence and Collapse, which is forthcoming in the California Law Review. Here’s the abstract:

This Article describes and interrogates a phenomena of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.

 

 

 

April 11, 2018 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, April 10, 2018

Lammon on Appellate Jurisdiction

Bryan Lammon has posted on SSRN a draft of his article, Finality, Appealability, and the Scope of Interlocutory Review, which will be published in the Washington Law Review. Here’s the abstract:

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be final. Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”

This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those appeals. Though related, these contexts are distinct and involve unique issues and interests. Successful reform must fill each of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.

 

 

 

 

April 10, 2018 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, April 9, 2018

Thomas on de Figueiredo, Lahav & Siegelman on “The List”

Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, Take Down the List. Suja reviews an article by Miguel de Figueiredo, Alexandra Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List.

 

 

 

April 9, 2018 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, April 5, 2018

Wisconsin Requires Disclosure of Litigation Funding

Yesterday’s story in the National Law Journal begins: “All litigation funding arrangements in Wisconsin state courts will have to be disclosed in civil cases under a new measure signed into law by the state’s governor Tuesday.”

Here’s the text of the bill.

 

 

 

April 5, 2018 in Discovery, In the News, State Courts | Permalink | Comments (0)

Wednesday, April 4, 2018

SCOTUS Per Curiam Decision on Qualified Immunity

This week, the Supreme Court issued a decision in Kisela v. Hughes, reversing the Ninth Circuit without hearing oral argument. From the Court’s per curiam opinion:

Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes. Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They had been there but a few minutes, perhaps just a minute. When Kisela fired, Hughes was holding a large kitchen knife, had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so. The question is whether at the time of the shooting Kisela’s actions violated clearly established law. * * *

Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. For even assuming a Fourth Amendment violation occurred—a proposition that is not at all evident—on these facts Kisela was at least entitled to qualified immunity. * * *

Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.

Justice Sotomayor authored a dissenting opinion, which was joined by Justice Ginsburg. The dissent begins:

Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” Appellant’s Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.

If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. See ante, at 5–6. I disagree.

 

 

 

April 4, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 3, 2018

Sachs on Finding Law

Steve Sachs has posted on SSRN his essay, Finding Law, which is forthcoming in the California Law Review. Here’s the abstract:

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English -- with a certain kind of reliability, but with no power to revise at will.

The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead. But uncertain cases force judges to make "decisions," not to make "law." Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force -- as law of the circuit, law of the case, and so on -- without altering the underlying law on which they're based.

This Essay claims only that it's plausible for a legal system to have its judges find law. It doesn't try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous ones in Erie, rest on the false premise that judge-made law is inevitable -- that judges simply can't do otherwise. In fact, judges "can" do otherwise: they can act as the law's servants rather than its masters. The fact that they can forces us to confront, rather than avoid, the question of whether they should. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

 

 

April 3, 2018 in Recent Scholarship | Permalink | Comments (1)

Monday, April 2, 2018

Call for Papers: Corporate & Securities Litigation Workshop (Richmond Law, October 2018)

The University of Richmond School of Law, in conjunction with Boston University School of Law, University of Illinois College of Law, and UCLA School of Law, invites submissions for the Sixth Annual Workshop for Corporate & Securities Litigation. This workshop will be held on October 19-20, 2018 at the University of Richmond School of Law in Richmond, Virginia.

The call for papers is below. The deadline to submit abstracts is Friday, May 25.

Download Call for Papers -- 2018

 

 

April 2, 2018 in Conferences/Symposia | Permalink | Comments (0)

Thursday, March 29, 2018

Gardner on International Comity Abstention

Maggie Gardner has posted on SSRN a draft of her article, Abstention at the Border, which will be published in the Virginia Law Review. Here’s the abstract:

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.

This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.

In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.

Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.

 

 

 

 

March 29, 2018 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, March 28, 2018

Southern University Law Center Seeking Visitors for 2018-19

Posting for Professor Christopher Odinet at Southern University Law Center: 

SULC Seeks Visiting Professors for 2018-2019

Job Description Summary:

The Southern University Law Center welcomes applications for the appointment of two to three visiting professors for the 2018-2019 academic year. We welcome applications from all individuals whose backgrounds and experiences will enhance the diversity of our faculty. Our primary curricular needs are as follows: 

Louisiana Civil Law Courses:

We are interested in candidates with experience teaching Sale & Lease, Obligations, and Security Devices. Individuals with a background in the civil law are preferred.

Business Law, Procedure, and Constitutional Law Courses:

We are also interested in candidates with experience teaching Contracts, Commercial Paper, Federal Civil Procedure, Federal Courts & Procedure, Business Entities, and Constitutional Law.

 

Qualifications:

  • D. degree
  • Experience and demonstrated success in law school teaching
  • Demonstrated ability in mentoring students
  • Commitment to the mission of the Southern University Law Center and its instructional methods and goals

Instructions to Applicants:

Candidates should submit the following to Professor Donald North, chair of the Faculty Appointments Committee, at dnorth@sulc.edu:

  • Resume/CV
  • Cover letter
  • Contact information for three professional references

Benefits: The Southern University Law Center offers a comprehensive benefits package to full-time faculty members that includes health, dental, vision, life insurance, and retirement. Salary will be commensurate with qualifications.

EMPLOYMENT NON-DISCRIMINATION POLICY: Southern University Law Center (SULC) is an Equal Opportunity Employer, committed to a diverse and inclusive work environment. SULC is committed to a policy against discrimination in employment based on sex, actual or perceived gender, age, race, color, religion, creed, national or ethnic origin, disability, sexual orientation, gender identity and expression, genetic information; or parental, marital, domestic partner, civil union, military, or veteran status.

March 28, 2018 | Permalink | Comments (0)

Call for Nominations for the 2019 AALS Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2019 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg, in 2014 Catharine A. MacKinnon, in 2015 Herma Hill Kay, in 2016 Marina Angel, in 2017 Martha Albertson Fineman, and in 2018 Tamar Frankel. All of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.

The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is now seeking nominations for this most prestigious award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award. As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2019 AALS Annual Meeting.

Please submit your nomination by filling out this electronic form by April 30, 2018. Please note that only nominations submitted via the electronic form by the deadline will be accepted.

March 28, 2018 | Permalink | Comments (0)

Some Thoughts on the Hughes Argument and Logical Subsets

Yesterday the Supreme Court heard oral argument in United States v. Hughes, a case involving how to identify the holding of a Supreme Court decision with no majority opinion. This issue traditionally (or at least for the last 40 years) has been analyzed using the rule from Marks v. United States, which states that the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The particular fragmented decision at issue in Hughes is Freeman v. United States, in which the Court split 4-1-4 regarding when certain defendants are eligible to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines.

Here is the transcript from yesterday’s argument. I was particularly interested in this observation by Justice Kagan [on pp.22-23 of the transcript], which occurs during a broader exchange in which Petitioner’s counsel is arguing against an approach to Marks that factors in the reasoning of dissenting Justices:

JUSTICE KAGAN: Well, Mr. Shumsky, I think -- I think your approach relies on dissents sometimes too, because take one of these logical subset cases. You have a concurrence that is a logical subset of the plurality. And you say, well, the concurrence controls. And that's true even as to times where the concurrence splits off with the plurality and joins with the dissent. So you're counting dissents too, I think.

Justice Kagan’s point highlights a concern I raise in my recent essay, Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018). Some circuit judges interpreting Freeman have engaged in precisely this kind of reasoning regarding logical subsets, and Justice Kagan is exactly right that such an approach is really one that counts dissenting votes. Accordingly, in my view, to embrace this approach would be a departure from the prevailing understanding of Marks, and it would raise the same concerns that others have identified with allowing dissenting Justices to determine the binding content of Supreme Court decisions.

Continue reading

March 28, 2018 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (1)

SCOTUS Decision in Hall v. Hall: Appellate Jurisdiction and Consolidation

Yesterday the Supreme Court issued a unanimous decision in Hall v. Hall (covered earlier here). Chief Justice Roberts’ opinion begins:

Three Terms ago, we held that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of whether any of the others remain pending. Gelboim v. Bank of America Corp., 574 U. S. ___ (2015). We left open, however, the question whether the same is true with respect to cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure. Id., at ___, n. 4 (slip op., at 7, n. 4). This case presents that question.

And the answer to that question is yes:

Rule 42(a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.

 

 

March 28, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 27, 2018

Conference on Evaluating Litigation Risk at UConn Law (April 27, 2018)

On April 27, 2018, the University of Connecticut School of Law and Insurance Law Center are hosting a conference entitled “Evaluating Litigation Risk in the 21st Century.” From the announcement:

Please join us for a first of its kind conference on measuring and managing litigation risk. Bringing together thought leaders in law, finance, insurance, and economics, from practice and academia, this conference will explore new approaches to evaluating litigation risk, including the latest tools available such as digital and data analytics, artificial intelligence, and game theory. We will examine the methods for evaluating risk currently in use, explore new approaches, and consider what limitations constrain our ability to evaluate and quantify litigation risk.

Register by April 23 at ilc.law.uconn.edu/litigationrisk18.

More details below:

Download Email Content for Publicity - LitRisk18

March 27, 2018 in Conferences/Symposia | Permalink | Comments (0)

Monday, March 26, 2018

Pfander on Nourse on Statutory Interpretation

Now on the Courts Law section of JOTWELL is Jim Pfander’s essay, Statutory Interpretation for Courts and Lawyers. Jim reviews Victoria Nourse’s book, Misreading Law, Misreading Democracy (2016).

 

 

 

March 26, 2018 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Marks, Hughes, and Biconditional Rules

The final version of my essay Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018), is out. Here’s the abstract:

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).

Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to apply Marks coherently to non-majority opinions that endorse biconditional rules.

The Supreme Court hears oral argument in Hughes tomorrow (3/27).

 

March 26, 2018 in Adam Steinman, Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Friday, March 23, 2018

Ondersma on Human Rights and Mandatory Arbitration

Chrystin Ondersma has published Consumer Financial Protection and Human Rights, 50 Cornell Int’l L.J. 543 (2017). Here’s the abstract:

This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human rights principles, including property rights, rights to be free from discrimination, and due process rights. This Article then evaluates the CFPB’s rule from a human rights standpoint, and explores the CFPB’s role in mitigating human rights concerns triggered by arbitration clauses in consumer credit contracts.

 

 

March 23, 2018 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Lammon on Cumulative Finality

Bryan Lammon has posted on SSRN a draft of his article, Cumulative Finality, which will be published in the Georgia Law Review. Here’s the abstract:

A proper notice of appeal is a necessary first step in most federal appeals. But federal litigants sometimes file their notice of appeal early, before district court proceedings have ended. When those proceedings finally end and no new notice is filed, the law of cumulative finality determines what effect-if any-the premature notice has. Sometimes the notice is effective and the appeal proceeds as normal. Sometimes it's not, and litigants lose their right to appeal.

At least, that's how the law of cumulative finality looks from a distance. Up close, the courts of appeals are hopelessly divided on matters of cumulative finality. They disagree what law governs cumulative finality issues-whether they're governed solely by Rule of Appellate Procedure 4(a)(2) or also by a common-law cumulative finality doctrine that preceded the rule-and under what conditions a premature notice of appeal is saved. Three distinct approaches to cumulative finality have emerged, resulting in a deep circuit split. To make matters worse, decisions within several of the circuits have applied different approaches, resulting in intra-circuit divides.

This Article offers a fix. Neither the text of the Rules of Appellate Procedure nor their history provide a clear cumulative finality rule. But looking to the practicalities of the issue suggests allowing a subsequent judgment to save any prematurely filed notice of appeal. Doing so imposes few costs while preserving litigants' right to appeal.

The current cumulative finality mess illuminates a larger issue with the appellate jurisdiction literature and its attendant reform efforts. The literature has long maligned the unnecessary complexity and uncertainty of the entire federal appellate jurisdiction regime and advocated reform. But most of that literature focuses on only one part of that regime-appeals before a final judgment. Equally important are issues with determining when district court proceedings have ended and parties thus have a right to appeal. Cumulative finality is only one piece in this other aspect of appellate jurisdiction. There are more. Successful reform might require establishing a new, clearer point at which parties have a right to appeal. So this other aspect of appellate jurisdiction needs similar attention if reform is to succeed.

 

 

March 23, 2018 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)