Tuesday, December 12, 2017
Yesterday the U.S. Court of Appeals for the Ninth Circuit heard oral argument in United States v. United States District Court for the District of Oregon. The Ninth Circuit is considering the federal government’s petition for a writ of mandamus challenging the district court’s order in Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The district court had denied the government’s motion to dismiss a lawsuit that the court summarized as follows:
Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶ 5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.
217 F. Supp. 3d at 1233.
Monday, December 11, 2017
Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, A Prescription for Overcoming Gender Inequity in Complex Litigation: An Idea Whose Time Has Come. Suzette reviews Brooke Coleman’s recent article, A Legal Fempire?: Women in Complex Civil Litigation, which is forthcoming in the Indiana Law Journal.
Friday, December 8, 2017
Today the U.S. Supreme Court granted certiorari in several cases, including these two:
United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”
China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”
Monday, December 4, 2017
Friday, December 1, 2017
Today the U.S. Supreme Court granted certiorari in Salt River Project Agricultural Improvement & Power District v. SolarCity Corp. It presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
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.