Wednesday, December 28, 2016

Bruhl on the Jurisdictional Canon

Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.

This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

 

 

 

 

December 28, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, December 27, 2016

Hoffman on Hubbard on Plausibility Pleading

Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).

 

 

 

December 27, 2016 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Friday, December 23, 2016

New from the Administrative Office of U.S. Courts: Just the Facts

Here is the first installment of “Just the Facts,” which was posted this week. From the introduction:

Just the Facts is a new feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to the data team.

(H/T: S.I. Strong)

 

 

 

December 23, 2016 in Federal Courts | Permalink | Comments (0)

Monday, December 19, 2016

Tidmarsh on Fitzpatrick & Norris on Discovery Costs and Fee Shifting

Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, Discovery Costs and Default Rules. Jay reviews a recent paper by Brian Fitzpatrick and Cameron Norris, One-Way Fee Shifting After Summary Judgment.

 

 

 

December 19, 2016 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, December 14, 2016

SCOTUS Cert Grant on Venue in Patent Cases: TC Heartland v. Kraft Foods

Today the U.S. Supreme Court granted certiorari in TC Heartland LLC v. Kraft Food Brands Group LLC. Here is the question presented set forth in the cert petition (including the usual wind-up):

The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides .... " The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 14, 2016 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, December 13, 2016

Magazine article on "Roberts Rules for Protecting Corporations"

Moshe Z. Marvit has published in the American Prospect magazine a piece entitled "Roberts Rules for Protecting Corporations."  The summary is "The chief justice’s changes to the rules for litigation make suing big business a whole lot harder."

 

December 13, 2016 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Sinnar on Iqbal’s Lost Story

Shirin Sinnar has posted on SSRN a draft of her article, The Lost Story of Iqbal, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal. It first retells the story of Iqbal himself — the Pakistani immigrant and cable repair technician whom the opinion presented only categorically as a foreigner, a terrorist suspect, and, at best, a victim of abuse. Drawing on the author’s interview of Iqbal in Lahore, Pakistan, in 2016 and other available evidence, the Article reconstructs the facts of Iqbal’s immigrant life, his arrest and detention in the wake of the September 11 attacks, and the enduring consequences of being labeled a suspected terrorist. Second, the Article recounts the role of race and religion in the post-9/11 immigrant detentions, challenging the Court’s account of the detentions as supported by an “obvious” legitimate explanation. Juxtaposing the lost story of Iqbal and the detentions against the Court’s decision ultimately sheds light on the ability of procedural decisions to propagate particular normative visions and understandings of substantive law without the full recognition of legal audiences. Nearly fifteen years after the September 11 attacks and the ensuing mass detentions, Iqbal demands attention to its substance — to the profound questions of race, law, and security that have become even more urgent in the face of new calls for the exclusion of individuals on racial and religious grounds.

 

 

 

 

December 13, 2016 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Monday, December 12, 2016

SCOTUS GVRs Sixth Circuit case for further consideration in light of Tyson Foods

Today’s Supreme Court order list includes an order in FTS USA, LLC v. Monroe, granting certiorari, vacating, and remanding the case to the Sixth Circuit for further reconsideration in light of last Term’s decision in Tyson Foods v. Bouaphakeo. The FTS cert petition challenged the district court’s handling of a Fair Labor Standards Act (FLSA) collective action as violating the FLSA, the Due Process Clause, and the Seventh Amendment.

 

 

 

December 12, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, December 8, 2016

Effron on Gardner on Forum Non Conveniens

Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Time to Say Goodbye to Forum Non Conveniens? Robin reviews Maggie Gardner’s recent article, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).

 

 

December 8, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Institute for Law Teaching and Learning Summer 2017 Conference

Below is a call for presentation proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference (University of Arkansas at Little Rock William H. Bowen School of Law, July 7-8, 2017). The deadline for submissions is Feb. 1, 2017.

Download CFP Summer 2017 Bowen Conference

 

 

 

December 8, 2016 in Conferences/Symposia | Permalink | Comments (0)

Friday, December 2, 2016

SCOTUS Cert Grant on Service by Mail Under the Hague Convention: Water Splash v. Menon

Today the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon. Here is the question presented:

In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:

Does the Hague Service Convention authorize service of process by mail?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 2, 2016 in International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, December 1, 2016

December 1, 2016: FRCP Amendments Now In Effect

Back in April the U.S. Supreme Court adopted amendments to Federal Rules of Civil Procedure 4, 6 ,and 82. Today is the effective date of those amendments.

More details on the amendments are here.

 

 

December 1, 2016 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, November 30, 2016

SCOTUS Decision on Issue Preclusion

Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):

Continue reading

November 30, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, November 29, 2016

This Week's NYU Symposium on Class Actions

The NYU Law Review and the Center on Civil Justice are hosting a symposium entitled “Rule 23 @ 50” this Friday and Saturday. From the announcement:

This is a wonderful time to reflect on Rule 23 – what it was meant to do; whether it has met its promise; if not, why not, and what can be done to remedy the situation; and what is in store for the Rule going forward.

When: December 2–3, 2016.

Where: Vanderbilt Hall, 40 Washington Square South.

Panels will explore the history of the rule, its use in civil rights and mass tort cases, what the rule was meant to accomplish, whether it has done so, and if not, whether there are ways to fix the situation. There will be an oral history interview with Professor Arthur Miller, who was there at the creation of the rule. The conference will conclude with a judges’ roundtable moderated by Professor Miller.

Here is a more detailed program, and here’s where you can RSVP.

 

 

 

November 29, 2016 in Class Actions, Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, November 28, 2016

Walsh on Bray on the National Injunction

Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.

 

 

 

November 28, 2016 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, November 18, 2016

Interesting SCOTUS Dismissal: Don’t Change Issues After Cert Grant

Yesterday the U.S. Supreme Court issued a summary disposition in two antitrust cases—Visa v. Osborn and Visa v. Stoumbos—for which it had earlier granted certiorari. Here’s the text of yesterday’s ruling:

These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.

 

 

 

 

 

 

November 18, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, November 14, 2016

Cheng on Legal Publication Bias

Ed Cheng has posted on SSRN a draft of his article, Detection and Correction of Legal Publication Bias. Here’s the abstract:

Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.

 

 

 

 

November 14, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 10, 2016

Grossi on Klonoff’s Introduction to U.S. Law

The Courts Law section of JOTWELL now features Simona Grossi’s essay, Introducing U.S. Law. Simona reviews Bob Klonoff’s new book Introduction to the Study of U.S. Law (West Academic 2016).

 

 

 

November 10, 2016 in Books, Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, November 8, 2016

Today’s SCOTUS Oral Argument in Bank of America v. Miami

Today the Supreme Court hears oral argument in Bank of America v. Miami, which involves standing to sue under the Fair Housing Act. Here are the questions presented:

  1. By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
  1. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?

You can find links to all of the briefing at SCOTUSblog.

[Update: Here is the oral argument transcript.]

 

 

 

November 8, 2016 in Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Monday, November 7, 2016

SCOTUS Cert Grant on Preemption: Coventry Health Care v. Nevils

On Friday, the Supreme Court granted certiorari in Coventry Health Care of Missouri, Inc. v. Nevils, which presents the following questions:

  1. Whether FEHBA preempts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts.
  2. Whether FEHBA’s express-preemption provision, 5 U.S.C. § 8902(m)(1), violates the Supremacy Clause.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

November 7, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)