Friday, March 23, 2018
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.
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.
Thursday, March 22, 2018
Abbe Gluck, Ashley Hall, and Gregory Curfman have posted on SSRN a draft of their article, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, which will be published in the Journal of Law, Medicine & Ethics. Here’s the abstract:
The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. The plaintiffs -- who range from states, to counties, to Indian tribes, and individuals -- have cast an exceedingly broad net for defendants. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain -- which they were -- two decades ago.
This is not the first major national public health litigation effort -- tobacco, fast food, and guns offer earlier blueprints -- but it has some unique features. First, unlike the litigation it most resembles -- tobacco -- the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.
Second, more than 400 of the opioid cases have now been consolidated before a single federal judge in a so-called "multidistrict litigation." That judge has chided the federal and state governments for punting the problem to the courts; he has made clear he thinks everyone is to blame; and has vowed to get a settlement, with systemic change as part of it, by the end of 2018 -- a breathtaking pace for resolution that makes his courtroom the game changer.
None of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic. This article details that story.
We covered earlier the Supreme Court’s cert grant in the Salt River case, which presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.” This week, the parties entered into a Stipulation of Dismissal pursuant to Sup. Ct. R. 46, taking the case off the Court’s docket.
Disappointed appellate-jurisdiction junkies may perhaps find solace in the jurisdictional portion of yesterday’s Ayestas decision.
Wednesday, March 21, 2018
Richard Fallon has published A Theory of Judicial Candor, 117 Colum. L. Rev. 2265 (2017). Here’s the abstract:
This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals and that explains the linkages between the two.
This Essay’s potentially larger contribution lies in its provision of a template for thinking about judicial candor. Different people begin with different understandings or intuitive conceptions. To arbitrate among rival perspectives, this Essay posits that discussion needs to begin with familiar patterns of linguistic usage, but insists that analysis cannot stop there. Against the background of linguistic and theoretical disagreement, intellectual progress requires examination of why we have reason to care about judicial candor in the various senses in which that term can be used. At the last stage, the selection of a conception of judicial candor must turn on normative considerations. Consistent with that credo, this Essay not only explains, but also justifies, its conclusions about what judicial candor minimally requires and about the further ideals that it embodies, even if fallible and time-pressed human judges understandably fall short of ideal candor in many cases.
Today the Supreme Court issued a unanimous decision in Ayestas v. Davis, which involves a capital habeas petitioner seeking funding for investigative services, as authorized by 18 U.S.C. § 3599. Justice Alito’s opinion concludes that the courts below applied the wrong legal standard in denying Ayestas’s motion for funding and remands for further proceedings to apply the correct legal standard.
First, however, the Court confronts the question of whether appellate courts—including the Supreme Court—have jurisdiction to review a district court’s denial of such a request for funding. Here’s how Justice Alito tees up the issue:
When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U. S. C. §§1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court. And when the Fifth Circuit affirmed, petitioner sought review in this Court under §1254, which gives us jurisdiction to review “[c]ases” in the courts of appeals. As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial capacity. But we have recognized that not all decisions made by a federal court are “judicial” in nature; some decisions are properly understood to be “administrative,” and in that case they are “not subject to our review.” Hohn v. United States, 524 U. S. 236, 245 (1998).
The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U. S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9–10 (June 2017). Administering this operation requires many “decisions” in the ordinary sense of the term—decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett, 728 F. 3d 1033, 1037 (CA9 2013). It would be absurd to suggest that every “final decision” on any such matter is appealable under §1291 or reviewable in this Court under §1254. See Hohn, supra; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3903, pp. 134–135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders—i.e., decisions or orders made in a judicial capacity—to which the relevant jurisdictional provisions apply.
The Court concludes that the district court’s funding decision “does not remotely resemble the sort of administrative decisions noted above.” It is therefore subject to appellate review under the usual jurisdictional provisions.
Justice Sotomayor authors a concurring opinion, joined by Justice Ginsburg, arguing that—under the proper legal standard—“there should be little doubt that Ayestas has satisfied §3599(f)” and is entitled to funding.
Tuesday, March 20, 2018
Maggie Lemos & Ernie Young have posted on SSRN a draft of their article, State Public Law Litigation in an Age of Polarization. Here’s the abstract:
Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization.
This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying.
We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent preferences and interests within the broad publics that the states represent, and this deficiency becomes particularly important in politically polarized times. Although our account of state litigation is, on the whole, a positive one, we caution that state attorneys general face a significant risk of backlash by other political actors, and by courts, if state litigation is (or is perceived to be) a bitterly partisan affair.
Supreme Court decision in Cyan: SLUSA & state court jurisdiction over 1933 Securities Act class actions
Today the Supreme Court issued a unanimous decision in Cyan, Inc. v. Beaver County Employees Retirement Fund. In an opinion authored by Justice Kagan, the Court addresses the effect of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) on class actions that allege violations of only the Securities Act of 1933 (which governs the original issuance of securities). The defendants argued that SLUSA deprives state courts of jurisdiction over such class actions. The Solicitor General proposed what Justice Kagan called a “halfway-house position,” whereby state courts have jurisdiction but defendants may remove such class actions to federal court.
The Court unanimously rejects both arguments. First, the Court holds that state courts retain jurisdiction over class actions that allege only 1933 Act violations: “SLUSA’s text, read most straightforwardly, leaves in place state courts’ jurisdiction over 1933 Act claims, including when brought in class actions.” Second, the Court holds that when such class actions are filed in state court, they may not be removed to federal court. SLUSA did not exempt such class actions from the general bar on removal currently codified at 15 U.S.C. § 77v(a).
Monday, March 19, 2018
Marin Levy has published Panel Assignment in the Federal Courts of Appeals, 103 Cornell L. Rev. 65 (2017). Here’s the abstract:
It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random.
This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that – in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way.
These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about nonrandom methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness.
Saturday, March 17, 2018
There has been a lot of coverage of Donald Trump’s relationship with Stephanie Clifford (known by her stage name Stormy Daniels), and the $130,000 payment she received in connection with a nondisclosure agreement during the heat of the 2016 presidential campaign.
Earlier this month, Clifford filed a lawsuit against Trump and Essential Consultants, LLC, in California state court (Los Angeles County). Essential Consultants, which was a party to the nondisclosure agreement, is apparently a Delaware LLC, and Trump attorney Michael Cohen is its sole member. Clifford’s complaint seeks a declaration that the “Hush Agreement” is unenforceable.
Yesterday, Essential Consultants removed the case to federal court. The notice alleges that, for purposes of diversity jurisdiction, Clifford is a Texas citizen and Trump and Essential Consultants are New York citizens. It also alleges that “the value of the object of the litigation” exceeds $75,000. The federal case has been docketed as Clifford v. Trump, No. 2:18-cv-02217 (C.D. Cal.)
Donald Trump filed a separate document joining in Essential Consultants’ notice of removal. This appears to be his effort to comply with 28 U.S.C. § 1446(b)(2)(A), which provides: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”
You can find more coverage of the removal to federal court here:
Thursday, March 15, 2018
The Vanderbilt Law Review recently published a symposium issue entitled The Least Understood Branch: The Demands and Challenges of the State Judiciary. It includes a dozen articles on these broader themes: the effects of selection method on public officials; perceived legitimacy and the state judiciary; and the power of new data and technology.
Wednesday, March 14, 2018
Bryan Lammon has posted on SSRN a draft of his essay, Hall v. Hall: A Lose-Lose Case for Appellate Jurisdiction, which is forthcoming in the Emory Law Journal Online. Here’s the abstract:
In Hall v. Hall, the Supreme Court will decide when parties in consolidated actions can appeal. But the Court has no great options in deciding the case. The Court can adopt a straightforward rule that rule would produce pragmatically unsound results. Or the Court can take a more flexible approach to appeals in this context, but doing so could inject further uncertainty and complexity into this area of the law. This problem is not unique to Hall; it exists when courts decide many issues of federal appellate jurisdiction. But Hall also illustrates the alternative way forward: although it's too late for Hall itself, the issue in Hall is an ideal one for rulemaking. More generally, rulemaking can avoid many of the problems federal courts run into when making rules of appellate jurisdiction.
Tuesday, March 13, 2018
Federal Judiciary Workplace Conduct Working Group issues report to Judicial Conference of the United States
From Tony Mauro, Federal Judiciary Unveils First Reforms From Harassment Working Group:
A working group has come up with nearly 20 reforms aimed at dealing with concerns about workplace harassment throughout the federal judicial system.
James Duff, director of the Administrative Office of the U.S. Courts, told the Judicial Conference in an interim report on Tuesday, “Any harassment in the judiciary is too much.” The 26-member conference, composed of federal judges from across the country, convened at the U.S. Supreme Court for its regular spring meeting.
The final report is expected in May.
And here are more details from the U.S. Courts website:
The following either have been accomplished or are in progress:
- Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
- Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
- Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
- Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
- Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
- Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
- Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
- Provide a simplified flowchart of the processes available under the EDR and JC&D.
- Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
- Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
- Continue to examine and clarify the Codes of Conduct for judges and employees.
- Improve communications with EDR and JC&D complainants during and after the claims process.
- Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
- Establish qualifications and expand training for EDR Coordinators.
- Lengthen the time allowed to file EDR complaints.
- Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
- Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
- Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.
Monday, March 12, 2018
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, “And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit.” Jay reviews a draft of an article by Ronen Avraham, William Hubbard, and Itay Lipschutz entitled Procedural Flexibility in Three Dimensions.
Friday, March 9, 2018
At the end of this month, the Supreme Court will hear oral argument in Hughes v. United States. One of the issues the Court will address is how to identify the holding of a decision that lacks a majority opinion. I’ve posted on SSRN a draft of my essay, Non-Majority Opinions and Biconditional Rules, forthcoming in the Yale Law Journal Forum, that examines a particularly challenging aspect of this puzzle. 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 coherently apply Marks to non-majority opinions that endorse biconditional rules.
The particular decision at issue in Hughes is Freeman v. United States, where 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. The government in Hughes is arguing: (1) a smaller set of defendants are eligible to seek a sentence reduction under Justice Sotomayor’s concurring opinion in Freeman than under Justice Kennedy’s plurality opinion in Freeman; (2) therefore, the Freeman concurrence is the “narrowest” and is binding under the Marks rule; and (3) the defendant in Hughes is ineligible for a sentence reduction under the Freeman concurrence’s test.
The parties in Hughes disagree about Point #1 because of some uncertainty regarding the scope of the test endorsed by the Freeman plurality. But even if the government is correct on Point #1, there’s a fundamental flaw in the analysis of which opinion is narrowest. Put simply: if the Freeman concurrence would deem a narrower universe of defendants to be eligible, then it would necessarily deem a broader universe of defendants to be ineligible. This is precisely the sort of problem that can arise when applying Marks to biconditional rules. The only plausible way for the Freeman concurrence to be the Court’s complete holding is to count the views of dissenting Justices—an approach that the Supreme Court has never endorsed and that is contrary to the prevailing understanding of Marks.
Thursday, March 8, 2018
As covered earlier, the Fourth Annual Civil Procedure Workshop will be held at Stanford Law School on November 9-10, 2018. The call for papers is below, and the deadline for submitting abstracts is March 23.
We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018.
While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Norman Spaulding (Stanford), email@example.com
Dave Marcus (Arizona), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Brooke Coleman (Seattle U), firstname.lastname@example.org
Wednesday, March 7, 2018
Today the Ninth Circuit issued its decision in In re United States of America (earlier coverage of the case here). As the opinion describes the litigation: “Twenty-one young plaintiffs brought suit against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.”
The district court had denied the defendants’ motion to dismiss the case for lack of jurisdiction and failure to state a claim, prompting the defendants to seek a writ of mandamus from the Ninth Circuit. Chief Judge Sidney Thomas authors a unanimous opinion denying the government’s petition without prejudice. The opinion is joined by Judges Marsha Berzon and Michelle Friedland. Judge Alex Kozinski was on the panel when oral argument occurred, but he was replaced by Judge Friedland following his retirement.
Judge Thomas’s opinion is structured around the Bauman factors—which have long guided the Ninth Circuit when it comes to mandamus petitions. They are:
(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression.
Here are the opinion’s concluding paragraphs:
We are mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress. However, the district court needs to consider those issues further in the first instance. Claims and remedies often are vastly narrowed as litigation proceeds; we have no reason to assume this case will be any different. Nor would the defendants be precluded from reasserting a challenge to standing, particularly as to redressability, once the record is more fully developed, or from seeking mandamus in the future, if circumstances justify it. And the defendants retain the option of asking the district court to certify orders for interlocutory appeal of later rulings, pursuant to 28 U.S.C. § 1292(b).
Because petitioners have not satisfied the Bauman factors, we deny the petition without prejudice. Absent any discovery order, the mandamus petition is premature insofar as it is premised on a fear of burdensome discovery. The issues pertaining to the merits of this case can be resolved by the district court, in a future appeal, or, if extraordinary circumstances later present themselves, by mandamus relief. For these reasons, we decline to exercise our discretion to grant mandamus relief at this stage of the litigation.
Friday, March 2, 2018
Today the Supreme Court granted a stay in Henry Schein, Inc. v. Archer and White Sales, Inc. Here’s the full order:
The application for stay presented to Justice Alito and by him referred to the Court is granted, and the proceedings in the United States District Court for the Eastern District of Texas, case No. 2:12-cv-572, are stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
As the applicant-soon-to-be-petitioner’s application puts it:
This case presents a straightforward conflict among the courts of appeals on an important and frequently recurring question involving the FAA. There is an entrenched conflict on the question whether a court may decline to compel arbitration where the court determines that the claim for arbitration depends on a purportedly “wholly groundless” interpretation of the parties’ arbitration agreement.
S.I. Strong has shared the following call from the Max Planck Institute Luxembourg, for a colloquium on “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”:
The colloquium will precede a larger conference hosted together with the Court of Justice of the European Union on the occasion of the 50th anniversary of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. The conference will look ahead to the current and future challenges for cross-border litigation in a changing European procedural environment.
Young professors, post-docs and advanced PhD students who are interested in contributing to the discussions, are invited to submit an abstract of max. 1,000 words, together with their CV, to BrusselsConvention50@mpi.lu by 15 April 2018. The selected candidates will be expected to write a paper and give a presentation during the colloquium; and to prepare and present a poster during the conference that follows. The candidates’ papers will then be included in the conference proceedings, along with the contributions of members of the CJEU and procedural law scholars. All travel and accommodation expenses will be covered by the MPI Luxembourg.
Thursday, March 1, 2018
In this week’s Jennings v. Rodriguez decision, the Supreme Court rules 5-3 that certain noncitizens detained in the course of immigration proceedings have no statutory right to periodic bond hearings. The Court remands the case, however, to address the plaintiffs’ constitutional arguments.
All three opinions in the case have something to say about class actions—Justice Alito’s (mostly) majority opinion, Justice Thomas’s concurring opinion, and Justice Breyer’s dissenting opinion. In remanding the case for the Ninth Circuit to consider the plaintiffs’ constitutional claims, Justice Alito writes:
[T]he Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g., Rule 23(b)(2) (requiring “that final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)).
The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011). We held in Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id., at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g., 804 F. 3d, at 1082; 715 F. 3d, at 1139–1141 (citing, e. g., Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, supra, at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).
Similarly, the Court of Appeals should also consider on remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972); see also Landon v. Plasencia, 459 U. S. 21, 34 (1982).
Justice Breyer’s dissenting opinion responds:
Federal Rule of Civil Procedure 23(b)(2) permits a class action where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” (Emphasis added.) And the Advisory Committee says that declaratory relief can fall within the Rule’s term “corresponding” if it “serves as a basis for later injunctive relief.” Notes on Rule 23(b)(2)–1966 Amendment, 28 U. S. C. App., p. 812.
* * *
Neither does Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011), bar these class actions. Every member of each class seeks the same relief (a bail hearing), every member has been denied that relief, and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing.
And Justice Thomas’s concurring opinion flags in a footnote the issue of whether class actions can seek a habeas corpus remedy: “This Court has never addressed whether habeas relief can be pursued in a class action. See Schall v. Martin, 467 U. S. 253, 261, n. 10 (1984) (reserving this question). I take no position on that issue here, since I conclude that respondents are not seeking habeas relief in the first place.”
(H/T: Adam Zimmerman)