Friday, February 23, 2018
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Empirical Truth About Qualified Immunity. Howard reviews Joanna Schwartz’s recent article, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).
Friday, February 9, 2018
Tuesday, January 23, 2018
Now on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Cooperative Procedure-Making. Pam reviews Robin Effron’s forthcoming article, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion, 98 B.U. L. Rev. (forthcoming 2018).
Thursday, January 11, 2018
I’ve just posted my recent article, Case Law, 97 B.U. L. Rev. 1947 (2017). Here’s the abstract:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
Thanks once again to the editors at the Boston University Law Review and to my colleagues who gave me such great comments and suggestions.
Tuesday, January 9, 2018
Monday, January 8, 2018
Zayn Siddique has posted on SSRN his article, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). Here’s the abstract:
One of the most dramatic exercises of a court’s equitable authority is the nationwide injunction. Although this phenomenon has become more prominent in recent years, it is a routine fixture of the jurisprudence of federal courts. Despite the frequency with which these cases arise, there has been no systematic scholarly or judicial analysis of when courts issue nationwide injunctions and little discussion of when they should issue such relief.
This Article presents the first comprehensive account of when nationwide injunctions issue. Earlier attempts to answer this question have focused exclusively on challenges to federal regulatory action and have concluded that the domain is one of unconstrained judicial discretion. By contrast, this Article considers not only cases involving the federal government but also those exclusively between private parties. The conclusion from this expanded focus is that courts determining the geographic scope of injunctions in disputes between private parties are largely guided by a single principle: The injunction should be no broader than “necessary to provide complete relief to the plaintiffs.” While the “complete relief” idea has echoes throughout equitable jurisprudence, it proves particularly robust at organizing the conditions under which nationwide injunctions issue. The Article then examines the body of cases involving the federal government to test the explanatory power of the complete relief principle. Although there is more variation, here too complete relief provides a useful tool for categorizing seemingly disparate cases under a common classification scheme. The Article concludes by arguing not only that the complete relief principle is descriptively useful for focusing debates about nationwide injunctions but also that Federal Rule of Civil Procedure 65 should be amended to codify the principle as a formal limit on the appropriate geographic scope of an injunction.
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.
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 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).
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.
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).
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.
Wednesday, August 30, 2017
Bill Dodge and Scott Dodson have posted on SSRN a draft of their article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review. Here’s the abstract:
The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action is federal or state law, and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction and alien defendants that will resonate with the Supreme Court.
Tuesday, August 29, 2017
Joe Seiner has just published The Supreme Court’s New Workplace (Cambridge University Press 2017). Here’s the description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court's new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Thursday, June 22, 2017
Now on the Courts Law section of JOTWELL is Nancy Leong’s essay, On Gender Disparity and Dialogue. Nancy reviews Jennifer Mika’s recent article, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017).
Wednesday, June 7, 2017
This week on the Courts Law section of JOTWELL is Marin Levy’s essay, Rethinking Judicial Independence. Marin review’s Tara Grove’s recent article, The Origins (and Fragility) of Judicial Independence, which is forthcoming in the Vanderbilt Law Review.
Wednesday, May 24, 2017
This week on the Courts Law section of JOTWELL is Suja Thomas’s essay, What Judges Can Do About Implicit Bias. Suja reviews Andrew Wistrich & Jeffrey Rachlinski’s contribution to a new American Bar Association book entitled Ensuring Justice: Reducing Bias (Sarah Redfield ed., forthcoming 2017). Their chapter is Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It.
Friday, May 12, 2017
Lou reviews a recent article by Steve Subrin and Thom Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).
Thursday, May 11, 2017
Justin Murray has published A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017). Here’s the abstract:
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.
The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.
I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.
Brandon Garrett has published a response, Patterns of Error, 130 Harv. L. Rev. F. 287 (2017).