June 12, 2013
Erie and Magic Words
It’s a quick read at <3 pages, where “<3” actually means “less than 3” as opposed to a sideways emoticon heart.
May 31, 2013
Campos on Jones on Judicial Review and the Lost Constitution
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos (Miami) entitled Back to the Future. It reviews a recent article by Robert Jones (Northern Illinois), Lessons from a Lost Constitution, 27 J. L. & Politics 459 (2012).
May 17, 2013
Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.
May 03, 2013
Balkin on Erie
Over at Balkinization, Prof. Jack Balkin (Yale) has a post entitled Erie Railroad v. Tompkins and the New Deal Constitution. It begins:
Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products. The video is available here. Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55. I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.
Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint. Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent. If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different. It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.
May 01, 2013
Tidmarsh on Lemos & Hensler on Adequate Representation in Parens Patriae Suits by State A-Gs
Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).
April 16, 2013
Mullenix on Sachs on Personal Jurisdiction
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix (Texas) entitled Fixing Personal Jurisdiction. It reviews a recent article by Stephen Sachs (Duke), How Congress Should Fix Personal Jurisdiction.
April 12, 2013
Epstein on Comcast v. Behrend
Professor Richard Epstein (NYU) has a post on PointofLaw.com entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:
The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.
March 29, 2013
Appellate Jurisdiction and Guantanamo
This week the U.S. Court of Military Commission Review denied petitions for writs of mandamus filed by the ACLU (order here) and a group of several media outlets (order here) in connection with the military commission trials at Guantanamo Bay, Cuba. The petitions were filed under the All Writs Act [28 U.S.C. § 1651(a)], and challenged a protective order issued by the Military Commission Judge. Among other things, the protective order authorizes automatic closure of proceedings and sealing of records whenever classified information is disclosed, even if the information is publicly known, and prohibits personal testimony by the defendants about their experiences while in U.S. custody.
The Court’s order does not address the merits of the petitioners’ arguments, or whether the All Writs Act is properly invoked in this context. Rather, it concludes that the case “is not ripe for our review.” From the order regarding the media petitioners:
This controversy is not ripe for our review. The judge has issued a protective order in accordance with Military Commission Act (MCA) Sec. 949p-3, 10 U.S.C. §949p-3. Petitioners have not alleged a single instance where the Military Commission Judge has improperly applied Amended Protective Order #1 to deny Petitioners access to information, sufficient to warrant the sort of extraordinary relief petitioners seek. See MCA Sec. 949d(c). See generally Clapper v. Amnesty International, 133 S. Ct. 1138 (2013); Cheney v. United States, 542 U.S. 367 (2004); Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (discussing classified information and Freedom of Information Act).
We emphasize the limited scope of our holding. We are not ruling on the merits of the parties claim that there is writ jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a).
Judge Silliman authored a concurring opinion urging the Court to address whether it has jurisdiction under the All Writs Act and arguing that 28 U.S.C. § 2241(e)(2) “explicitly stripped our Court of such jurisdiction.”
Steve Vladeck (American University) has more coverage at Lawfare.
March 13, 2013
Erbsen on Cheng on Aggregate Litigation and Sampling
Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen (Minnesota) entitled Seeking Accuracy in Aggregate in Litigation. It reviews a recent article by Edward Cheng (Vanderbilt), When 10 Trials Are Better Than 1000: An Evidentiary Perspective on Trial Sampling, 160 U. Pa. L. Rev. 955 (2012).
February 25, 2013
More Coverage of Gunn v. Minton
Here’s some more coverage of last week’s Supreme Court decision in Gunn v. Minton, which addresses Grable and federal question jurisdiction:
- Prof. Josh Blackman (South Texas)
- Prof. Rodger Citron (Touro), Justia
- Prof. Ronald Mann (Columbia), SCOTUSblog
February 11, 2013
Walsh on Crowe: Building the Federal Judiciary
Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh (Richmond) entitled Building the Federal Judiciary. It reviews a recent book by Justin Crowe (Williams College, Political Science), Building the Judiciary: Law, Courts, and the Politics of Institutional Development, Princeton University Press. Kevin’s review begins:
Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.
January 23, 2013
Lahav on Klerman on Personal Jurisdiction
Now available on the Courts Law section of JOTWELL is an essay by Alexandra Lahav (Connecticut) entitled Economic Analysis of Personal Jurisdiction. It reviews an article by Daniel Klerman (Southern California), Personal Jurisdiction and Product Liability, 85 S. Cal. L. Rev. ___ (forthcoming 2013).
January 22, 2013
Lederman: Article III Standing in the SCOTUS Same-Sex Marriage Cases
Over at SCOTUSblog, Prof. Marty Lederman (Georgetown) has a deep dive into the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). Links to the entire series—Understanding standing: The Court’s Article III questions in the same-sex marriage cases—below:
January 18, 2013
Lederman: More on Article III Standing in the SCOTUS Same-Sex Marriage Cases
Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).
January 17, 2013
Lederman on Article III Standing in the SCOTUS Same-Sex Marriage Cases
Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).
January 13, 2013
Ben-Shahar on the Economics of Arbitration and Access to Justice
Prof. Omri Ben-Shahar (Chicago) has posted on SSRN a draft of his article, Arbitration and Access to Justice: Economic Analysis. Here’s the abstract:
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive effect. Paradoxically, rules that limit the use of pre-dispute arbitrations clauses hurt, rather than protect, weaker consumers, as they mandate a regressive reallocation. I also consider the role of class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.
(Hat Tip: Larry Solum)
January 11, 2013
Green on Erie
Prof. Michael Steven Green (William & Mary) is celebrating Erie’s 75th anniversary year with daily “Erieblogging.” His kick-off is here, and you can follow the rest at Prawfsblawg. The most recent installment (as of this post) is Day 10.
January 10, 2013
Vladeck on Pendent Appellate Jurisdiction and the Collateral Order Doctrine
Prof. Steve Vladeck (American University) has posted on SSRN a draft of his essay, Pendent Appellate Bootstrapping, which will be published in the Green Bag. He also has a Prawfsblawg post on the topic. Here’s the abstract:
Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."
Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, this short essay demonstrates that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.
The practical effect of these beclouded expansions is only now becoming visible. Thus, in two recent high-profile Bivens cases, both the D.C. and Seventh Circuits (the latter sitting en banc) reversed a trial court’s recognition of a Bivens claim on interlocutory appeal of the denial of qualified immunity, even though neither court of appeals disturbed the district court’s underlying determination of non-immunity. And whatever might be said about the continuing viability of Bivens claims, lower courts have begun to piggyback other legal questions going to the merits onto interlocutory immunity appeals, as well.
As this essay concludes, in addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. Had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.
January 09, 2013
Thomas on Solomon on the Civil Jury
Now available on the Courts Law section of JOTWELL is an essay by Suja Thomas (Illinois) entitled Considering the Civil Jury. It reviews a recent article by Jason Solomon (William & Mary), The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012). Suja's review begins:
The civil jury is in this year. In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy. Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.
January 08, 2013
SCOTUS Oral Argument in Standard Fire v. Knowles
Yesterday the Supreme Court heard oral argument in The Standard Fire Insurance Co. v. Knowles (No. 11-1450), which considers whether plaintiffs can block CAFA removal by stipulating that the class is seeking damages below the $5 million threshold for CAFA diversity jurisdiction. Check out the oral argument transcript.
For additional coverage:
- Associated Press (Mark Sherman)
- Bloomberg (Greg Stohr)
- How Appealing (Howard Bashman)
- National Law Journal (Tony Mauro)
- N.Y. Times (Adam Liptak)
- Reuters (Jonathan Stempel)
- SCOTUSblog (Prof. Debra Lyn Bassett, Southwestern Law School)
- @SCOTUSHUMOR (Prof. Jay Wexler, Boston University)