Tuesday, May 24, 2022
Yesterday the Supreme Court issued a unanimous decision in Morgan v. Sundance, Inc. (covered earlier here). At issue is whether the defendant waived its right to insist on arbitration by engaging in litigation before seeking a stay under section 3 of the Federal Arbitration Act (FAA). Justice Kagan’s opinion rejects the view—expressed by many federal appellate courts—that “[a] party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.” She notes that a “special rule” requiring prejudice is not supported by the FAA’s ostensible “policy favoring arbitration.”
Here’s an excerpt, which also highlights a number of issues that the Court’s decision does not resolve:
We decide today a single issue, responsive to the predominant analysis in the Courts of Appeals, rather than to all the arguments the parties have raised. In their briefing, the parties have disagreed about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate. The parties have also quarreled about whether to understand that inquiry as involving rules of waiver, forfeiture, estoppel, laches, or procedural timeliness. We do not address those issues. The Courts of Appeals, including the Eighth Circuit, have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. For today, we assume without deciding they are right to do so. We consider only the next step in their reasoning: that they may create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). They cannot. For that reason, the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice.
Monday, May 16, 2022
SCOTUS Cert Grant on District Court Jurisdiction over Challenges to SEC Enforcement Proceedings: SEC v. Cochran
Whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.
Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h). 28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”
The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.
Friday, May 13, 2022
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Data-Driven Procedural Inequality. Brooke reviews Danya Reda’s recent article, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. (forthcoming 2023).
Thursday, May 5, 2022
Last year, the Alabama Law Review hosted a virtual symposium entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The symposium issue is now posted:
Maggie Gardner, Pamela K. Bookman, Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave, The False Promise of General Jurisdiction, 73 Ala. L. Rev. 455 (2022).
Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483 (2022).
Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539 (2022).
Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583 (2022).
A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Advisory Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607 (2022).
Gregory C. Cook & Andrew Ross D’Entremont, No End in Sight? Navigating the “Vast Terrain” of Personal Jurisdiction in Social Media Cases After Ford, 73 Ala. L. Rev. 621 (2022).
David G. Wirtes, Jr. & Christy Ward Rue, Combating Weaponized Challenges to Personal Jurisdiction, 73 Ala. L. Rev. 661 (2022).
Thanks to everyone who participated! Very excited to see the contributions in print.
Tuesday, May 3, 2022
The Nevada Law Journal is inviting submissions for its Volume 23 symposium: "Dark Necessities? The Supreme Court's Shadow Docket." This issue seeks to explain the shadow docket's past and present use as well as its substantive effects on particular areas of law. Proposals are due May 16, 2022; articles will be due by August 15, 2022.
Monday, May 2, 2022
The Supreme Court has adopted amendments to the Federal Rules of Civil Procedure, as well as amendments to the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Criminal Procedure, and transmitted them to Congress.
The FRCP amendments include amendments to Rule 7.1 and a new set of Supplemental Rules for Social Security Review Actions Under 42 U.S.C. § 405(g). The Rule 7.1 amendments, among other things, create a new disclosure requirement to facilitate early determinations of whether diversity jurisdiction exists. The new supplemental rules for § 405(g) actions establish a uniform procedure for such actions.
Unless Congress intervenes, these amendments will take effect on December 1, 2022.
You can find the full transmittal package, including redlines and advisory committee notes, here.
Monday, April 25, 2022
“Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1038 (2021) (Gorsuch J., concurring). This petition seeks resolution of an issue that has divided courts around the country. More than a dozen state supreme courts and every federal court of appeals have weighed in on the question with conflicting results.
An unbroken line of this Court’s cases holds that a court may exercise personal jurisdiction with a party’s consent. Corporations enforce that precedent to the letter in their contracts of adhesion, requiring flesh and blood consumers to litigate disputes with businesses in often-distant tribunals. E.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). Turnabout should be fair play (and is, incidentally, consistent with substantial justice). Consistent with that rule, states have enacted laws requiring corporations operating within their boundaries to consent to personal jurisdiction when they register to do business in those states. The Pennsylvania Supreme Court found such a statute unconstitutional under this Court’s decision in International Shoe v. Washington, 326 U.S. 310 (1945), and its progeny. That erroneous result is but the latest decision among dozens that are squarely divided on the question presented:
Whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
Friday, April 22, 2022
Yesterday’s busy Supreme Court opinion day featured a number of interesting decisions:
- In Boechler v. Commissioner, the Court once again weighed in on whether a litigation-related deadline is jurisdictional and, if not, whether it is subject to equitable tolling. The case involves 26 U.S.C. § 6330(d)(1)’s 30-day deadline for petitioning the Tax Court to review certain determinations by the Internal Revenue Service. Writing for a unanimous Court, Justice Barrett concludes that it “is an ordinary, nonjurisdictional deadline subject to equitable tolling.”
- Brown v. Davenport involves the relationship between the deferential standard of review in the AEDPA [28 U.S.C. § 2254(d)(1)] and the requirement that any state court error cause sufficient prejudice to the defendant under Brecht v. Abrahamson, 507 U.S. 619 (1993). Writing for a six-justice majority, Justice Gorsuch concludes that “a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.” Justice Kagan authors a dissenting opinion, joined by Justices Breyer and Sotomayor, calling the majority’s approach “pointless” because “the Brecht standard ‘obviously subsumes’ the ‘more liberal’ AEDPA one: If a defendant meets the former, he will ‘necessarily’ meet the latter too.” The opinions also include a robust exchange regarding the history of habeas corpus that is well worth a read.
- And in Cassirer v. Thyssen-Bornemisza Collection Foundation, the Court considered what choice-of-law rule governs claims against a foreign state or instrumentality under the Foreign Sovereign Immunities Act. Justice Kagan’s opinion for a unanimous Court holds that courts should apply “whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party.” In a property-law dispute (this case was a suit to recover expropriated property), that means using “the forum State’s choice-of-law rule, not a rule deriving from federal common law.”
Tuesday, April 19, 2022
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Talking the Talk to Walk the Walk. Sergio reviews recent congressional testimony by Myriam Gilles, Justice Restored: Forced Arbitration and the Erosion of our Legal System: Hearing on H.R. 963 Before the Subcomm. on Antitrust, Commercial, and Administrative Law, 117 Cong. __ (2021), and Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows: Hearing Before the H. Comm. on the Judiciary, 117 Cong. __ (2021).
Thursday, April 7, 2022
Today the Fourth Circuit issued a unanimous decision in Mayor & City Council of Baltimore v. BP P.L.C., on remand from last year’s Supreme Court decision (covered here). Judge Floyd’s 93-page opinion, joined by Chief Judge Gregory and Judge Thacker, affirms the district court’s order remanding the case to Maryland state court. It begins:
This appeal returns to us on remand from the Supreme Court, and we are now tasked with examining the entirety of the district court’s remand order to determine if the climate-change lawsuit in question was properly removed to federal court. BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1538, 1543 (2021). To accomplish that charge, we must evaluate eight distinct grounds for removal that twenty-six multinational oil and gas companies (Defendants) maintain provide federal jurisdiction over the Mayor and City Council of Baltimore’s (Baltimore) climate-change action. Because we conclude that none of Defendants’ bases for removal permit the exercise of federal jurisdiction, we affirm the district court’s remand order.
For those keeping score, the “eight distinct grounds” are:
(1) federal common law; (2) substantial issues of federal law, including foreign affairs, under Grable; (3) complete preemption under the CAA, 42 U.S.C. §§ 7401–7671q; (4) federal enclaves; (5) the OCSLA, 43 U.S.C. § 1349(b)(1); (6) the bankruptcy removal statute, 28 U.S.C. § 1452(a); (7) the admiralty jurisdiction statute, 28 U.S.C. § 1333(1); and (8) the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
The opinion concludes:
The impacts of climate change undoubtably have local, national, and international ramifications. See Massachusetts, 549 U.S at 521–53 (noting that the harms associated with climate change are “serious and well recognized”). But those consequences do not necessarily confer jurisdiction upon federal courts carte blanche. In this case, a municipality has decided to exclusively rely upon state-law claims to remedy its own climate-change injuries, which it perceives were caused, at least in part, by Defendants’ fossil-fuel products and strategic misinformation campaign. These claims do not belong in federal court. Given the jurisdictional inquiry before us, we take no view on whether Baltimore will ultimately fail or succeed in proving its claims under Maryland law. We cannot decide those questions. But we are confident that Maryland courts can capably adjudicate claims arising under their own laws that fail to otherwise provide any federal jurisdiction. * * *
Monday, April 4, 2022
Today on the Courts Law section of JOTWELL is Christine Bartholomew’s essay, A Post Minimum Contacts World. Christine reviews Patrick Borchers’ recent article Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era, 72 Case W. Res. L. Rev. 45 (2021).
Thursday, March 31, 2022
Today the Supreme Court issued its decision in Badgerow v. Walters (covered earlier here). Justice Kagan’s majority opinion concludes that when a request to confirm or vacate an arbitral award under Sections 9 and 10 of the Federal Arbitration Act (FAA) is filed in federal court, “a court may look only to the application actually submitted to it in assessing its jurisdiction.” That is, the Court rejected the so-called “look-through” approach that it had endorsed for petitions to compel arbitration under Section 4 of the FAA in Vaden v. Discover Bank, 556 U.S. 49 (2009). Justice Kagan reasoned that Sections 9 and 10 “lack Section 4’s distinctive language directing a look-through, on which Vaden rested.”
Justice Breyer was the lone dissenter, arguing that “Congress intended a single approach for determining jurisdiction of the FAA’s interrelated enforcement mechanisms, not one approach for the mechanism provided in Section 4 and a different approach for the mechanisms provided in all other sections.”
Monday, March 28, 2022
Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
Monday, March 21, 2022
Here is the announcement:
The University of Nebraska College of Law is looking for visiting professors for 2022-23. We are accepting letters of interest from professors to teach criminal law and/or contracts in fall 2022. We are also accepting letters of interest from professors to teach civil procedure in spring 2023. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send letters directly to Associate Dean Anthony Schutz, firstname.lastname@example.org.
Friday, March 11, 2022
This morning, the Supreme Court of Texas issued its decision in Whole Woman’s Health v. Jackson. It is the latest development in the litigation over Texas’s abortion law, S.B. 8. After the U.S. Supreme Court’s decisions in December (covered here), the Fifth Circuit certified to the Texas Supreme Court the following question, which implicates one narrow path for challenging S.B. 8 that the U.S. Supreme Court left open:
Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207, and 171.208(a) of the Texas Health and Safety Code.
23 F.4th 380, 389 (5th Cir. 2022).
In today’s opinion by Justice Boyd, the Texas Supreme Court gives the following answer:
Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly. We answer the Fifth Circuit’s certified question No.
Monday, March 7, 2022
The University of Alabama is hiring a visitor to cover civil procedure next year. The visit can be for either the fall 2022 semester or the full 2022-2023 academic year. Here is the announcement:
The University of Alabama School of Law is seeking a visiting faculty member for a podium visit in the fall 2022 semester to teach Civil Procedure (4 credit hours) in the first-year required curriculum. Faculty members from ABA-accredited law schools are welcome to apply. Qualified applicants not currently affiliated with a law school will also be considered, in which case salary will be commensurate with experience and qualifications. There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required. There is also an option to structure the visit for the full 2022-23 academic year. For a year-long visit, teaching responsibility during the spring semester of 2023 is negotiable. In either case, instruction will be in-person at the School of Law in Tuscaloosa, Alabama. Compensation for this visit will include support for housing and a “bonus stipend” for the visiting scholar in addition to covering regular compensation at the scholar’s home institution. The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community.
Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations. Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at email@example.com.
Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at firstname.lastname@example.org.
Review of materials and nominations will begin immediately and will continue until the position is filled.
Friday, March 4, 2022
A Busy Couple of Days at SCOTUS: Intervention, the State Secrets Privilege, and the State Secrets Privilege
The Supreme Court handed down several opinions today and yesterday, including one case on intervention and two cases on the state secrets privilege.
In Cameron v. EMW Women’s Surgical Center, the Court reversed the Sixth Circuit’s denial of the Kentucky attorney general’s motion to intervene on appeal in a case challenging the constitutionality of a Kentucky abortion law. Justice Alito wrote the majority opinion, from which Justice Sotomayor dissented. Justices Kagan and Breyer did not join the majority opinion, but concurred in the judgment in an opinion authored by Justice Kagan.
In United States v. Zubaydah, a fractured Court found that the state secrets privilege blocked a Guantánamo Bay detainee’s discovery request under 28 U.S.C. § 1782 seeking to obtain information to use in Polish litigation regarding his treatment at a CIA detention cite; it therefore reversed the Ninth Circuit’s ruling that former CIA contractors could be required to confirm the location of the site. Here’s the headcount:
BREYER, J., delivered the opinion of the Court, except as to Parts II– B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all but Parts III and IV and the judgment of dismissal, and THOMAS and ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO, J., joined. KAVANAUGH, J., filed an opinion concurring in part, in which BARRETT, J., joined. KAGAN, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
And in FBI v. Fazaga, the Court unanimously held that § 1806(f) of the Foreign Intelligence Surveillance Act did not “eliminate, curtail, or modify” the state secrets privilege. Justice Alito authored the opinion of the Court, which remanded the case for lower courts to decide whether the state secrets privilege applied and whether dismissal of the plaintiffs’ claims was warranted.
Monday, February 28, 2022
Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Civil Procedure for Lawyerless Courts. Allan reviews Pamela Bookman & Colleen Shanahan’s recent article, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022).