Civil Procedure & Federal Courts Blog

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)

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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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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)

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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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:

• SCOTUSblog, Argument preview: Can global wiretaps be challenged? (Lyle Denniston)
• Lawfare, Why Clapper Matters: The Future of Programmatic Surveillance (Steve Vladeck)
• Slate, Why Amnesty Should Lose at the Supreme Court (Eric Posner)

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.

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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Epstein on Greenhouse on Introducing the Supreme Court

Now available on the Courts Law section of JOTWELL is an essay by Prof. Lee Epstein entitled Introducing the Court. It reviews Linda Greenhouse’s recent book, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012).  The review begins:

The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.

And concludes:

As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.” (p. 87).

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Wasserman on Marder, McElroy on Cameras in the Federal Courts

Now available on the Courts Law section of JOTWELL is an essay by Prof. Howard Wasserman (Florida International) entitled SCOTUS in Focus: Two Takes on Cameras in the Federal Courts. It reviews two recent articles: Nancy S. Marder, The Conundrum of Cameras in the Courtroom, Ariz. St. L. Rev. (forthcoming 2012), and Lisa T. McElroy, Cameras at the Supreme Court: A Rhetorical Analysis, BYU L. Rev. (forthcoming 2012). The review begins:

Television cameras in the courtroom probably have been debated since there have been cameras to bring into the courtroom, with periodic spikes in attention around high-profile cases–O.J. Simpson’s criminal trial or Bush v. Gore or this term’s Supreme Court arguments on the Affordable Care Act. In the past two decades, a communications revolution has turned that occasional spike in attention into a constant drumbeat. More attention from more outlets is focused on the federal courts, particularly the Supreme Court. And video is ever-more accessible, as people can watch on a multitude of devices in a multitude of places, and ever-less obtrusive, so courtroom actors can easily be recorded without knowing it.

Yet, as Nancy Marder puts it, “the revolution has been stopped cold at the steps to the U.S. federal courthouse.” And the Justices themselves have erected and manned the barricades–rejecting calls for more open and immediate coverage of oral arguments in the obviously unique ACA cases, fighting Congress over who wields power to decide whether to allow cameras, and even jumping into disputes over cameras in the lower federal courts in high-profile cases.

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Walker on Kalajdzic on Ethics and Class Actions in Canada

Now available on the Courts Law section of JOTWELL is an essay by Prof. Janet Walker (York University – Osgoode Hall) entitled Ethical Lawyering in the Clientless World of Class Actions in Canada. It reviews a recent article by Prof. Jasminka Kalajdzic (University of Windsor), Self Interest, Public Interest, and the Interests of the Absent Client: Legal Ethics and Class Action Praxis, 49 Osgoode Hall L.J. 1 (2011). The review begins:

It is surprising what you can learn by watching the next generation coming of age. In this way, lawyers in the United States can gain much from following the experiences of the Canadian legal community as it climbs the steep learning curve needed to formulate the parameters and protocols for complex litigation.

Civil litigation and the structure of the legal profession in Canada do not pretend to challenge American exceptionalism. There are important differences between the two legal systems. But they have enough in common that academics and others in the U.S. can gain useful insight into class actions practice by hearing how Canadians are currently struggling to meet the kinds of challenges that have long been the subject of debate in the U.S. In this fine article, Jasminka Kalajdzic explores a new subject, at least for Canadian lawyers: the special ethical concerns that arise for counsel in class actions.

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SCOTUSblog Online Symposium on Kiobel v. Royal Dutch Petroleum

SCOTUSblog has started an online symposium discussing Kiobel v. Royal Dutch Petroleum, which will be reargued in the Supreme Court this fall. Here’s a brief introduction by Kali Borkoski. To keep track of the new contributions as they get posted, head here. The guest contributors include:

• Donald Childress – Pepperdine School of Law
• Sarah Cleveland – Columbia Law School
• Anthony Colangelo – SMU Dedman School of Law
• Susan Farbstein – Harvard Law School
• Meir Feder – Jones Day
• Oona Hathaway – Yale Law School
• Eugene Kontorovich – Northwestern School of Law
• Julian Ku – Hofstra Law School
• Michael Ramsey – University of San Diego Law School
• Beth Stephens – Rutgers School of Law
• Ingrid Wuerth – Vanderbilt Law School

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Malveaux on Sullivan on Iqbal and Employment Discrimination

Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.

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Campos on Brown on Specious Claims & Global Settlements

Now available on the Courts Law section of JOTWELL is an essay by Prof. Sergio Campos (Miami) entitled Striking Out Specious Claims in Mass Tort Global Settlements. It reviews a forthcoming article by Prof. S. Todd Brown (SUNY Buffalo), Specious Claims and Global Settlements.

The review begins:

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.”  In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.”  The opposite is true in mass tort litigation.  In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims.  It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.  In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem.

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More Civ Pro Video

We covered earlier the Full Faith & Credit video from the Columbia Law Revue, which won a narrow victory in Above The Law’s Law Revue Video Contest.

Now comes a video, courtesy of the 2012 Emory Law Follies, that features civil procedure prof Rich Freer expertly channeling Michael Bolton (and others):

 

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(Hat Tip: Thom Main)

Law Revue Land Shows Some Love For Civil Procedure

Video here. And it's one of the finalists for Above The Law's Law Revue Video Contest.

(Hat tip: Chris Newman)

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More Kiobel Coverage

Lots of coverage on Kiobel v. Royal Dutch Petroleum, which is being argued today:

• Kenneth Anderson (Volokh Conspiracy)
• Lyle Denniston (SCOTUSblog)
• Jonathan Hafetz (ABA Preview)
• Julian Ku (Point of Law)
• Juan Mendez (Opinio Juris)
• David Savage (Los Angeles Times)
• Nina Totenberg (NPR)
• Peter Weiss (New York Times)
• David Weissbrodt (Point of Law)
• Stephen Wermiel (SCOTUSblog)

One issue that isn’t squarely raised by the questions presented is whether the Alien Tort Statute applies to claims brought by one alien against another (as in Kiobel). Amanda Frost’s Academic Round-up for SCOTUSblog covers an essay by Anthony Bellia and Bradford Clark, which argues that the Alien Tort Statute applies only to claims brought by an alien against a U.S. citizen. Marco Simons has a response on Concurring Opinions.

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Hoffman on Hubbard on Preservation Under the Federal Rules

Now available on the Courts Law section of JOTWELL is an essay by Prof. Lonny Hoffman (Houston) entitled A Modest Proposal on Preservation. It reviews an article by Prof. William Hubbard (Chicago), Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero.

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Tidmarsh on Resnik on Concepcion, Wal-Mart, Turner v. Rogers

Now available on the Courts Law section of JOTWELL is an essay by Prof. Jay Tidmarsh (Notre Dame) entitled Access to Courts and the Democratic Order. It reviews a recent article by Prof. Judith Resnik (Yale), Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011), covered earlier here.

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Is the end of class actions upon us?

That’s the title of this contribution by Professor Brian Fitzpatrick (Vanderbilt) to SCOTUSblog’s arbitration symposium. The other contributions are worth a look too.

SCOTUSblog’s symposium on arbitration comes on the heels of its class action symposium (covered earlier here).

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Announcement and Call for Papers: 4th Annual Junior Faculty Federal Courts Workshop

Florida International University College of Law is hosting the Fourth Annual Junior Faculty Federal Courts Workshop in Miami on February 2 - 4, 2012. From the announcement:

The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this year: Susan Bandes (University of Miami), Lee Epstein (USC), Theodore Eisenberg (Cornell University), Martin Redish (Northwestern University), and Suzanna Sherry (Vanderbilt University). . . .

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, and associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2012 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee. . . .

Those wishing to present a paper must submit an Abstract by November 15. Papers will be selected by a committee of past participants; presenters will be notified by December 10. Those planning to attend must register by January 10, 2012. The program is also open to non-presenters who want to attend, read and comment on papers, and participate in the discussion.

More details available at PrawfsBlawg.

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(Hat Tip: Howard Wasserman)

Faculty Hiring Announcement: Charlotte

The Faculty Lounge has posted a hiring announcement from the Charlotte School of Law. One area of need is civil procedure.

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