Tuesday, 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.

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April 16, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, 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.

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April 12, 2013 in Class Actions, Supreme Court Cases, Weblogs | Permalink | Comments (1)

Friday, 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.

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March 29, 2013 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Wednesday, 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).

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March 13, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, 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:  

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February 25, 2013 in Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, 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.

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February 11, 2013 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, 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).

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January 23, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, 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:

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January 22, 2013 in Standing, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Friday, 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).

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January 18, 2013 in Federal Courts, Standing, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Thursday, 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).

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January 17, 2013 in Federal Courts, Standing, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Sunday, 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.

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(Hat Tip: Larry Solum)

January 13, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, 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.

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January 11, 2013 in Federal Courts, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Thursday, 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.

Continue reading

January 10, 2013 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, January 9, 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.

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January 9, 2013 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, January 8, 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:

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January 8, 2013 in Class Actions, In the News, Subject Matter Jurisdiction, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, December 10, 2012

Standing Issues in the Same-Sex Marriage Cases (Hollingsworth & Windsor)

We covered earlier the additional questions the Supreme Court asked the parties to brief in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307), especially on the issue of Article III standing.  Here’s some recent coverage of those issues:

  • Prawfsblawg, by Howard Wasserman (Florida International)
  • SCOTUSblog, by Neal Devins & Tara Grove (William & Mary)

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December 10, 2012 in Standing, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Tuesday, November 27, 2012

WSJ on the Launch of Modria, an Online Small Claims Court

“Modria Launches to Become the Online ‘Small Claims Court for the 21st Century,’” from the WSJ’s Venture Capital Dispatch Blog.

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(Hat Tip: Suja Thomas)

November 27, 2012 in In the News, Web/Tech, Weblogs | Permalink | Comments (0)

Monday, November 26, 2012

Pfander on Why Judges Leave (Reviewing Burbank, Plager & Ablavsky)

Now available on the Courts Law section of JOTWELL is an essay by Prof. Jim Pfander (Northwestern) entitled Why Judges Leave the Bench. It reviews Stephen Burbank, S. Jay Plager, and Greg Ablavsky's recent article, Leaving the Bench. Jim's essay begins:

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.

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November 26, 2012 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Sunday, October 28, 2012

SCOTUS Oral Argument in Clapper v. Amnesty International: Article III Standing to Challenge Federal Wiretapping Procedures

Although Hurricane Sandy may change things, the Supreme Court is still – as of this post anyway – scheduled to hear oral argument tomorrow in Clapper v. Amnesty International. The issue is whether the plaintiffs have Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act. Here are a few posts of interest:

For links to all the merits and amicus briefs, head to SCOTUSblog’s case file.

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PS: To everyone in Sandy’s exceptionally wide path, stay safe.

October 28, 2012 in Standing, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Friday, October 26, 2012

Vladeck on Collins & Nash on Federal Crimes in State Courts

Now available on the Courts Law section of JOTWELL is an essay by Prof. Stephen Vladeck (American University) entitled Federal Crimes, State Courts, and Palmore. It reviews Michael G. Collins & Jonathan Remy Nash’s recent article, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011). Steve’s review begins:

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning.

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October 26, 2012 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)