Monday, January 11, 2021
Today’s lengthy Supreme Court order list includes a denial of certiorari in IQVIA Inc. v. Mussat. The Seventh Circuit’s decision below (covered earlier here) had concluded that “the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute.”
The question presented in the cert petition was “[w]hether a district court with jurisdiction coextensive with a state court in the district can exercise personal jurisdiction over absent class members’ claims as part of a putative class action when the court concededly could not exercise personal jurisdiction over the absent class members’ claims if they had been brought in individual suits.”
Wednesday, January 6, 2021
Wednesday, December 30, 2020
The Supreme Court of Pennsylvania has issued an interesting decision on personal jurisdiction: Hammons v. Ethicon, Inc., 240 A.3d 537 (2020). The majority opinion by Justice Baer begins:
This case presents a challenge to the exercise of specific personal jurisdiction in Pennsylvania over New Jersey corporate defendants in a case filed by an Indiana resident regarding injuries allegedly caused by a pelvic mesh medical device implanted in Indiana. While the device was assembled by the defendants out of state, the mesh component of the device was manufactured by a separate entity in Pennsylvania. After reviewing recent decisions from the United States Supreme Court revising its personal jurisdiction jurisprudence, we conclude that the imposition of personal jurisdiction in this case meets the relevant constitutional and statutory requirements.
The opinion contains a nice discussion of the scope of specific jurisdiction in the wake of the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (BMS), which concludes:
We conclude that the Court in BMS did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state. Accordingly, absent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs. Instead, we look more broadly to determine whether the case as a whole establishes ties between the defendant’s actions in the forum state and the litigation.
A concurring opinion by Justice Donohue addresses “the propriety of considering evidence adduced for the first time at trial in support of the trial court’s ruling on preliminary objections that specific jurisdiction was established.”
Chief Justice Saylor dissents.
Monday, December 28, 2020
The University of Chicago Law Review has published a special edition that is dedicated to the life and work of Seventh Circuit Judge (and civil procedure professor) Diane Wood. It features essays by Douglas Baird, Lee Anne Fennell, Tom Ginsburg, William Hubbard, Aziz Huq, Saul Levmore, Martha Nussbaum, Julie Roin, Lior Strahilevitz, and David Strauss.
Wednesday, December 23, 2020
It’s going to be an unusual, entirely virtual 2021 annual meeting for the Association of American Law Schools. Here’s the full program, and here’s a list of panels that may be of particular interest (all times are eastern)…
Monday, December 21, 2020
The Pound Civil Justice Institute has published the report of its 2020 Judges Forum, Dangerous Secrets: Confronting Confidentiality in Our Public Courts. It features academic papers by Dustin Benham and Sergio Campos, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Friday, December 18, 2020
Today the Supreme Court issued a decision in Trump v. New York, a case involving the Trump administration’s policy to exclude aliens without lawful status from the 2020 census count. In a per curiam opinion, the majority finds the case to be non-justiciable on standing and ripeness grounds, vacating the district court’s judgment against Trump. It concludes:
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
Justice Breyer authors a dissenting opinion, joined by Justices Sotomayor and Kagan. From the dissent (citations omitted):
Waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress, as the Court seems to prefer, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that the [plaintiffs’] requested relief . . . .will redress the alleged injury,” I would find that we can reach plaintiffs’ challenge now, and affirm the lower court’s holding.
Wednesday, December 16, 2020
Today the Supreme Court granted certiorari in TransUnion LLC v. Ramirez, which presents the question: “Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”
(The cert petition presented a second question relating to punitive damages, but the grant is limited to Question 1.)
Friday, December 11, 2020
Today on the Courts Law section of JOTWELL is Maureen Carroll’s essay, Judges Behaving Badly… Then Slinking Away. Maureen reviews Veronica Root Martinez’s recent essay, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 953 (2020).
Thursday, December 10, 2020
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek “appropriate relief.” The question here is whether “appropriate relief” includes claims for money damages against Government officials in their individual capacities. We hold that it does.
First, the Court finds that government officials can be sued in their personal capacities. Justice Thomas explains: “A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against ‘a government,’ as defined under RFRA. §2000bb–1(c).”
Second, the Court approves of claims for monetary damages against such officials: “A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.” In a footnote, however, Justice Thomas raises the possibility of qualified immunity:
Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law,” Tr. of Oral Arg. 42; see District of Columbia v. Wesby, 583 U. S. ___, ___–___ (2018) (slip op., at 13–15).
This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” Ibid.
The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not.
The Court’s analysis looks closely at the summary judgment record, including Adams’ answers to interrogatories and deposition testimony, noting that “[t]his is a highly fact-specific case.” It ultimately concludes that “the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.” He therefore “failed to show that ‘personal,’ ‘concrete,’ and ‘imminent’ injury upon which our standing precedents insist.”
Justice Sotomayor authors a concurring opinion. Although she agrees that Adams lacked standing, she observes that the constitutional challenge to Delaware’s system “will likely be raised again.” Accordingly, she briefly identifies “two important considerations” relevant to such a challenge, including the difficulty in determining whether Delaware’s major party and bare majority requirements are severable from one another. On severability, Justice Sotomayor suggests that federal courts may be “well advised to consider certifying such a question to the State’s highest court.”
Friday, December 4, 2020
This week the Pound Civil Justice Institute announced the winners of its 2021 Civil Justice Scholarship Award: Sandra Sperino, Suja Thomas, and Mark Wojcik. From the announcement:
Professor Sperino, of the University of Cincinnati College of Law, and Professor Thomas, of the University of Illinois College of Law, are honored for their book, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press 2017), in which they examine the ways in which courts have impeded private enforcement of anti-discrimination laws through civil litigation.
Professor Wojcik, of UIC John Marshall Law School, is honored for his article, Extending Batson to Peremptory Challenges of Jurors Based on Sexual Orientation and Gender Identity, 40 No. Ill. U. L. Rev. 1 (2019), in which he argues that it is time to extend the U.S. Supreme Court’s decision in Batson v. Kentucky to all federal and state trial courts, and to prohibit expressly the exclusion of jurors based on their actual or perceived sexual orientation or gender identity.
High Distinction Honorees
The Institute also recognized two publications for high distinction among the 35 nominations received: Rights and Retrenchment: The Counterrevolution against Federal Litigation (Cambridge University Press 2017), in which Professors Stephen Burbank, of the University of Pennsylvania Law School, and Sean Farhang, of the University of California, Berkeley, examine responses to the “rights revolution” that unfolded in the United States during the 1960s and 1970s, and trace the increasing hostility to the enforcement of rights through lawsuits; and The Trouble with Trial Times Limits, 106 Geo. L. J. 933 (2018), in which Professor Nora Freeman Engstrom, of Stanford Law School, examines an issue that is quietly and negatively affecting trials at a time when few cases go to trial. She looks at specific trials and data that demonstrate the random implementation of time limits of trials, and how they add additional limitations on plaintiffs.
Thursday, December 3, 2020
Rich Freer has posted on SSRN a draft of his article, "Defense Preclusion": Exploring a Narrow Gap in Preclusion Law, 40 Rev. Litig. (forthcoming 2021). Here's the abstract:
All litigators know something about claim and issue preclusion. But “defense preclusion” does not ring a bell, even for most civil procedure enthusiasts. Accordingly, the Supreme Court’s 2020 decision in Lucky Brand Dungarees v. Marcel Fashions Group was doubly surprising. Not only did the Court use the term “defense preclusion” for the first time; it also told us that the doctrine is vibrant enough to have generated a split of authority.
Defense preclusion fills a little-recognized gap in traditional preclusion doctrine. Claim preclusion requires a claimant to seek, in Case 1, all rights to relief encompassed in the claim asserted. If that claimant brings Case 2 on the same claim, the doctrine precludes her from seeking relief she could have sought in Case 1. But claim preclusion applies only to claimants, not defendants. Defense preclusion is the defendant analogue: it bars a defendant in Case 2 from asserting a defense she could have raised in Case 1.
Lucky Brand establishes that defense preclusion is occasionally appropriate but does not define the limits of the doctrine. My goals are to (1) define defense preclusion by situating it within the broader context of preclusion law and (2) outline the scope of the doctrine, based upon suggestions in Lucky Brand and core principles of preclusion. Defense preclusion is narrow, likely to arise only in cases involving a distinct minority approach to claim preclusion and particular types of contract claims.
Tuesday, December 1, 2020
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing the Supreme Court Out of the Shadows. Steve reviews the eleventh edition of Supreme Court Practice, authored by the late Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb (but known to many by the names of the treatise’s original authors, Robert L. Stern and Eugene Gressman).
Monday, November 30, 2020
University of Colorado Austin W. Scott, Jr. Lecture Series: "Is It Time for a New Civil Rights Act? Addressing Modern Obstructionist Procedure" (Dec. 1, 2020)
Tomorrow evening (5:30pm MST), Suzette Malveaux will deliver a virtual lecture in Colorado Law’s Austin Scott Lecture series. From the announcement:
Join University of Colorado Law School Professor Suzette Malveaux for a virtual lecture titled “Is it Time for a New Civil Rights Act? Addressing Modern Obstructionist Procedure.” Professor Malveaux will explore how the U.S. Supreme Court’s civil procedure jurisprudence has undermined access to justice and civil rights enforcement, and why a new civil rights law is necessary during this critical and tumultuous time in our country.
You can register here (it’s free).
Thursday, November 12, 2020
Today on the Courts Law section of JOTWELL is Marin Levy’s essay, The Status of Non-Binding Authority. Marin reviews Maggie Gardner’s article, Dangerous Citations, 95 N.Y.U. L. Rev. (forthcoming 2020), and Merritt McAlister’s article, Missing Decisions, 169 U. Pa. L. Rev. (forthcoming 2021).
Monday, November 9, 2020
February 2, 2021: Pamela Bookman & David Noll -- Ad Hoc Procedure
March 2, 2021: Beth Burch -- Multi-District Litigation
April 6, 2021: David Engstrom & Jonah Gelbach -- Legal Tech
Friday, October 30, 2020
Yesterday the First Circuit issued its decision in Rhode Island v. Shell Oil Products Co., which addresses the scope of appellate jurisdiction over district court remand orders—the same issue for which the Supreme Court granted certiorari (in a Fourth Circuit case) earlier this month.
Judge Thompson’s opinion begins:
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.
Wednesday, October 28, 2020
Today on the Courts Law section of JOTWELL is Fred Smith’s essay, Assessing the Rise of the Governmental Plaintiff. Fred reviews Seth Davis’s recent article, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).
Monday, October 26, 2020
The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?
I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.