Friday, November 26, 2021
This week the Supreme Court granted certiorari in Berger v. North Carolina State Conference of the NAACP, which presents the following questions:
- Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.
- Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion.
- Whether Petitioners are entitled to intervene as of right in this litigation.
Thursday, November 18, 2021
Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, In a Different Voice. Roger reviews a recent article by Beth Burch and Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, Cornell L. Rev. (forthcoming 2022).
Monday, November 15, 2021
Waiver is the intentional relinquishment of a known right and, in the context of contracts, occurs when one party to a contract either explicitly repudiates its rights under the contract or acts in a manner inconsistent with an intention of exercising them. In the opinion below, the Eighth Circuit joined eight other federal courts of appeals and most state supreme courts in grafting an additional requirement onto the waiver analysis when the contract at issue happens to involve arbitration-requiring the party asserting waiver to show that the waiving party's inconsistent acts caused prejudice. Three other federal courts of appeal, and the supreme courts of at least four states, do not include prejudice as an essential element of proving waiver of the right to arbitrate.
The question presented is: Does the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court's instruction that lower courts must "place arbitration agreements on an equal footing with other contracts?" AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).
Friday, November 5, 2021
- Whether a cause of action exists under Bivens for First Amendment retaliation claims.
- Whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.
(The Court did not grant cert on the third question presented, which asked the Court to “reconsider Bivens”).
Thursday, November 4, 2021
Friday, October 29, 2021
The grant is limited to Question 1 of the petition, which involves Arizona’s and other states’ attempt to intervene in litigation challenging the regulations: “Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”
Friday, October 22, 2021
One case, Whole Woman’s Health v. Jackson, presents the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
In United States v. Texas, the grant is limited to the following question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?”
The Court has set an exceptionally expedited schedule, with oral argument occurring on Monday, November 1. However, the Court has left the statute in effect while it considers the case.
Wednesday, October 20, 2021
Today on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory. Linda reviews Luke Norris’s article, Neoliberal Civil Procedure, 12 U.C. Irvine L. Rev. (forthcoming 2022).
Wednesday, October 6, 2021
IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§ 171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§ 171.201–.212.
IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts. IT IS FURTHER ORDERED that the State of Texas shall inform all state court judges and state court clerks of this preliminary injunction and distribute this preliminary injunction to all state court judges and state court clerks.
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Hiding Behind Habeas’s Hardness. Steve reviews Jonathan Siegel’s recent article, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022).
Friday, October 1, 2021
Yesterday the Supreme Court granted certiorari in several cases—two of which may be of particular interest…
Boechler, P.C. v. Commissioner of Internal Revenue presents the following question:
Section 6330(d)(1) of the Internal Revenue Code establishes a 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the Commissioner of Internal Revenue. 26 U.S.C. § 6330(d)(1). The question presented is: Whether the time limit in Section 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.
Cassirer v. Thyssen-Bornemisza Collection Foundation presents the following question:
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 (“FSIA”), provides that where a foreign nation is not immune from jurisdiction in the courts of the United States or of any State, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Id. § 1606. In four circuits, the courts of appeals have held that this statutory requirement of parity with private litigation means that a federal court hearing an FSIA case must apply the choice-of-law rules of the State in which it is sitting. But the Ninth Circuit has held—repeatedly and without meaningful analysis, including in the decision below—that choice of law in FSIA cases is determined by application of federal common law.
The choice of law issue is critical in this case, in which the family of a Holocaust survivor seeks the return of a painting stolen by the Nazis. Under California law, a holder of stolen property (such as the Spanish state museum here) can never acquire good title, while under Spanish law, an adverse possession rule protects the museum’s title.
The question presented is: Whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.
Tuesday, September 28, 2021
Hiring Announcement: UC Hastings (Professor and Director of the Center for Negotiation and Dispute Resolution)
Below is a hiring announcement from UC Hastings College of Law:
The University of California Hastings College of the Law in San Francisco is conducting an open-rank search to hire one lateral tenured or tenure-track faculty member to begin July 1, 2022. The ideal candidate will be a productive scholar in the field of alternative dispute resolution, a successful teacher, and a visionary programmatic administrator capable of leading the nationally esteemed Center for Negotiation & Dispute Resolution (“CNDR”).
Thursday, September 23, 2021
Now that the calendar has officially turned to fall, we have two new installments of the Unavailability Civil Procedure Workshop to announce. This semester, they’re happening on Tuesdays at 3:00pm ET / 2:00pm CT / 1:00pm MT / 12:00pm PT. Here’s the Fall 2021 lineup:
October 12, 2021: Howard Wasserman & Rocky Rhodes -- Texas S.B.8
November 9, 2021: Linda Mullenix -- Sanctions
Monday, September 20, 2021
Today on the Courts Law section of JOTWELL is my essay, Standing for Something More: Respect and Article III. I review a recent article by Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021).
Wednesday, September 8, 2021
The Supreme Court has removed Servotronics, Inc. v. Rolls-Royce PLC, from its oral argument calendar. As covered earlier here, the case would have addressed “[w]hether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals.”
Friday, September 3, 2021
Thursday, September 2, 2021
Late last night, the Supreme Court issued its order in Whole Women’s Health v. Jackson, denying by a 5-4 vote the application for injunctive relief or, in the alternative, to vacate the Fifth Circuit’s stay of the district court proceedings.
The ruling is supported by one long, unsigned paragraph, followed by four dissenting opinions: one by Chief Justice Roberts (joined by Justices Breyer and Kagan); one by Justice Breyer (joined by Justices Sotomayor and Kagan); one by Justice Sotomayor (joined by Justices Breyer and Kagan); and one by Justice Kagan (joined by Justices Breyer and Sotomayor).
Wednesday, September 1, 2021
Today Judge Robert Drain of the U.S. Bankruptcy Court for the Southern District of New York approved a plan that gives individual members of the Sackler Family immunity from civil lawsuits relating to the opioid epidemic. Here’s coverage from NPR, New York Times, and Washington Post.
Thursday, August 26, 2021
Yesterday U.S. District Judge Linda Parker of the Eastern District of Michigan issued a 110-page opinion in King v. Whitmer, imposing sanctions against the plaintiffs and their attorneys in a case brought by supporters of Donald Trump in the wake of the 2020 election. Here is the full opinion:
And here are some excerpts from Judge Parker’s introduction:
This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here. ***
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.***
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.3 As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.
Tuesday, August 17, 2021
The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:
Pound is seeking nominations for its 2022 Civil Justice Scholarship Award. The nomination deadline is Monday, September 13, 2021; the award will be presented in February 2022 in Palm Springs, California (conditions permitting).
We will recognize two works annually (as possible) – one book and one article. Anyone may make a nomination, including the authors themselves. Law school deans may make one nomination for each category (book and article) for professors in their school.