Civil Procedure & Federal Courts Blog

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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Faculty Hiring Announcement: Drexel

The Faculty Lounge has posted a hiring announcement from Drexel University Earle Mack School of Law. One area of need is Civil Procedure.

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Welcome Guest Blogger Brendan Maher

We are very pleased to welcome Professor Brendan Maher as a guest-blogger for the month of September. Brendan is an Assistant Professor of Law at Oklahoma City University School of Law (and not to be confused with the famous Irish hurler).

Brendan teaches Civil Procedure and Evidence, and his wide-ranging scholarship runs the gamut from ERISA to Federal Courts to Health Care to Mixed Martial Arts (see here and here).

Great to have you on board, Brendan!

SCOTUSblog Class Action Symposium

Beginning today, SCOTUSblog is hosting a symposium on the future of class action lawsuits. From the introductory post:

In the wake of several recent decisions from the Court – such as Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Smith v. Bayer– involving class actions, SCOTUSblog has solicited posts from experts in the field to the effects that these decisions (as well as others relating to class actions) will have on cases that are currently pending in the lower courts, as well as the future of class action lawsuits more generally.

We are grateful to our contributors, who are listed below, for their hard work:

• Sergio Campos, University of Miami School of Law
• Sarah Crawford, National Partnership for Women and Families
• Scott Dodson, William & Mary Law School
• Allen Erbsen, University of Minnesota Law School
• Ted Frank, Center for Class Action Fairness, LLC
• J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP
• Paul Karlsgodt, Baker Hostetler
• Charles Silver, University of Texas Law School
• Andrew J. Trask, McGuire Woods

Links to the symposium posts will be available here.

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Faculty Hiring Announcement: Oregon

The Faculty Lounge has posted a hiring announcement from the University of Oregon School of Law. One area of need is civil litigation.

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Faculty Hiring Announcement: Tulane

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

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Faculty Hiring Announcement: Oklahoma

The Faculty Lounge has posted a hiring announcement from the University of Oklahoma College of Law. One area of need is Civil Procedure.

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Faculty Hiring Announcement: Temple

The Faculty Lounge has posted a hiring announcement from Temple University James E. Beasley School of Law. One area of need is Civil Procedure.

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Faculty Hiring Announcement: Syracuse

The Faculty Lounge has posted a hiring announcement from Syracuse University. One area of need is civil procedure.

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Class Actions Alleging Inflated Employment Data Filed Against Two Law Schools

Over at TaxProf Blog, Paul Caron (Cincinnati) reports on two class action lawsuits that were filed today against New York Law School and Thomas M. Cooley Law School. Here are links to the complaints in Gomez-Jiminez v. New York Law School and MacDonald v. Thomas M. Cooley Law School.

If you’re wondering about subject-matter jurisdiction and the Class Action Fairness Act (CAFA), you’re not alone. The Cooley class action was filed in U.S. District Court for the Western District of Michigan and invokes CAFA diversity jurisdiction [28 U.S.C. § 1332(d)(2)]. The NYLS class action was filed in New York state court (in Manhattan), and the first paragraph of the complaint preemptively addresses the possibility of CAFA removal with an allegation that seems geared toward CAFA’s local-controversy and/or home-state exceptions [See 28 U.S.C. § 1332(d)(4)]. The complaint states: “Upon information and belief, more than two-thirds of all members of the putative class, at all material times relevant to the allegations of this Complaint, were residents of the State of New York and are current or former students of Defendant New York Law School.”

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Now on JOTWELL: 28 U.S.C. 1447(d) and Review of Remand Orders

Currently running on the Courts Law section of JOTWELL is my review of a recent article by James E. Pfander (Northwestern), Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court, 159 U. Pa. L. Rev. 493 (2011). The review is entitled A New Solution to an Old Problem: Section 1447(d) and Appellate Review of Remand Orders. It begins:

It may not be the most headline-grabbing issue on the Supreme Court’s docket. But it has occupied more of the Court’s attention during the past half-decade than abortion, affirmative action, the Commerce Clause, or the Second Amendment. It is 28 U.S.C § 1447(d)’s command that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This apparent ban on appellate review has generated an awkward line of cases, beginning with Thermtron Products v. Hermansdorfer in the 1970s, which struggle to determine when § 1447(d) “means what it says.” In the Court’s most recent decisions on the issue, several Justices have penned separate opinions voicing their frustration with current doctrine. Enter Jim Pfander and his recent article Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court. Pfander expertly diagnoses what is wrong with the jurisprudence surrounding § 1447(d) and, more importantly, offers a new solution to this long-standing puzzle.

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Erbsen on Goodyear v. Brown

Over at PrawfsBlawg, Allan Erbsen (Minnesota) has a post entitled Personal Jurisdiction, Goodyear v. Brown, and Homely Line Drawing. From the post:

The determinative question in Goodyear was whether the Turkish defendant's contacts with North Carolina were "continuous and systematic" or merely "sporadic" and "limited." That will also be the pivotal question in future cases involving a state's attempt to assert general jurisdiction. So one would hope to see language in the opinion explaining how lower courts should draw lines between "continuous" and "sporadic," and between "systematic" and "limited." And yet such guidance is missing.

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Do Your Students Think Discovery Is Boring?

From Elie Mystal (Above The Law) comes the story Beverly Hills Brawl: Escape From The Deposition Room! It begins:

Have you ever been to a deposition that got physical? Maybe some fisticuffs, or a little shoving? No? Well, obviously you’ve been hanging out in the wrong conference rooms. A complaint filed in Santa Monica Superior Court and reported on by Courthouse News Service accuses a Drinker Biddle partner of “robust, unlawful force” that resulted in opposing counsel breaking his wrist.

The story includes excerpts from the deposition transcript as well.

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Wasserman on this Week's Personal Jurisdiction Decisions

Over at Prawfsblawg, Professor Howard Wasserman (Florida International) has a post entitled Clarifying personal jurisdiction . . . or not, which discusses Monday’s Supreme Court decisions in Goodyear v. Brown and J. McIntyre v. Nicastro.

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SCOTUS Decision in Camreta v. Greene

Last week’s Supreme Court decision in Camreta v. Greene (09-1454) involved a section 1983 action for damages based on alleged violations of the Fourth Amendment in the interview of a nine-year-old elementary-school student by state officials without a warrant or parental consent. The Ninth Circuit held that the officials violated the Fourth Amendment but were entitled to qualified immunity “because the constitutional right at issue was not clearly established under existing law.” [Slip Op. 2]

What makes the case particularly interesting from a Federal Courts standpoint is that the officials (who ultimately won in the Ninth Circuit on qualified immunity grounds) sought certiorari to challenge the Ninth Circuit’s conclusion that their conduct violated the Fourth Amendment. So the first question the Court had to address was: “may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution?” [Slip Op. 2] The answer: yes, according to the majority opinion authored by Justice Kagan and joined by Chief Justice Roberts and Justices Scalia, Ginsburg and Alito. (One commentator described it as an “interesting lineup.”)

Continue reading

Faculty Hiring Announcement

The University of Florida (Levin College of Law) is seeking applicants for several tenure-track/tenured faculty positions, two of which explicitly target Civil Procedure. See announcements here and here.  

According to The Faculty Lounge, Florida's hiring chairs are Professors Lyrissa Lidsky (lidsky@law.ufl.edu) and Elizabeth Lear.

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Commentary on AT&T Mobility v. Concepcion

We covered earlier the Supreme Court’s decision in AT&T Mobility v. Concepcion. Splitting 5-4, the Court held that the Federal Arbitration Act prevented the consumers from relying on state-law unconscionability principles in challenging a contractual waiver of the right to arbitrate disputes on a classwide basis. There’s been a lot of commentary on the case in the ensuing weeks. Here are some links:

Nan Aron, AT&T Mobility v. Concepcion: The Corporate Court Does it Again, at the Huffington Post. 

Aaron Bruhl (Houston), AT&T’s Long Game on Unconscionability, at PrawfsBlawg.

Aaron Bruhl (Houston), AT&T v. Concepcion and Adherence to Minority Views, at PrawfsBlawg.

Erwin Chemerinsky (UC Irvine), Supreme Court: Class (action) dismissed, Los Angeles Times Op-Ed.

Lawrence Cunningham (George Washington), SCOTUS AT&T Opinion Par for Rhetorical Course, at Concurring Opinions.

Michael Dorf (Cornell), Arbitration Decision Suggests SCOTUS Majority Are Pro-Business More Than Jurisprudential Conservatives, at Dorf on Law.

Ashby Jones, After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions?, at the Wall Street Journal Law Blog.

Nathan Koppel, Will Federal Consumer Bureau Ride to the Rescue of Class Actions?, at the Wall Street Journal Law Blog.

Ken Klukowski, Trial lawyers lose to arbitration law in Supreme Court, Washington Examiner Op-Ed.

New York Times Editorial, Gutting Class Action

Opposing Views of Court's Ruling on Class Actions, Letters to the Editor, New York Times, from Arthur Miller (NYU) and Andrew Pincus.

Larry Ribstein (Illinois), Arbitration, preemption, and regulatory coordination, at Truth on the Market.

Lawrence Schonbrun, Supreme Court Ruling Is Not Bad News For Consumers, the Class Action System Is the Real Culprit, at the Huffington Post

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(Updated 5/23/11)