Thursday, July 18, 2019

Interesting 5th Circuit Decision on Preclusion, Personal Jurisdiction, Injunctions & Contempt

The Fifth Circuit issued an interesting decision earlier this month. A Texas federal court had enjoined the Department of Labor from enforcing its proposed Fair Labor Standards Act overtime rule. Several months later, a plaintiff in New Jersey sued her employer in a New Jersey federal court, relying on the proposed overtime rule. The Texas federal court then held the New Jersey plaintiff and her counsel in contempt, reasoning that they were bound by the injunction against the Department of Labor.

In a unanimous decision, the Fifth Circuit has now reversed the Texas district court’s contempt order. The whole opinion is worth a read, but here’s a summary from the opinion’s introductory section:

We conclude that the Texas federal court did not have the authority under Rule 65(d) of the Federal Rules of Civil Procedure to hold Alvarez and her attorneys in contempt, because Alvarez and her attorneys did not act in privity with, and she was not adequately represented by, the DOL in the injunction case; hence, the Texas federal court lacked personal jurisdiction over Alvarez and her attorneys. Accordingly, we reverse the judgment of the District Court, including the award of attorneys’ fees against Alvarez and her lawyers, and we render judgment in their favor.

Download Alvarez (5th Cir)



July 18, 2019 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Wednesday, July 17, 2019

2019 Hague Judgments Convention

This month the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

The text is here.

(H/T: Stacie Strong) 





July 17, 2019 in International/Comparative Law | Permalink | Comments (0)

Tuesday, July 16, 2019

Hiring Announcement: LSU Law

Below is a hiring announcement from the Louisiana State University, Paul M. Hebert Law Center. Areas of interest include federal courts, constitutional law, civil procedure, and evidence.

Download LSU Hiring Announcement 2019 General



July 16, 2019 | Permalink | Comments (0)

Monday, July 15, 2019

Vladeck on Thomas on Justice O’Connor

Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, The Center Cannot Hold. Steve reviews Evan Thomas’s recent book, First: Sandra Day O’Connor (2019).



July 15, 2019 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, June 19, 2019

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

Here is the announcement:

The AALS Section on Federal Courts is pleased to announce the sixth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2020 AALS Annual Meeting in Washington, D.C. 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2019 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2019), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Seth Davis at the University of California, Berkeley School of Law ( Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2019. Nominations will be reviewed by a prize committee comprised of Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Fred Smith (Emory), and Steve Vladeck (Texas), with the result announced at the Federal Courts section program at the 2020 AALS Annual Meeting.





June 19, 2019 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Monday, June 17, 2019

SCOTUS Decision in Virginia House of Delegates v. Bethune-Hill: Virginia House Lacks Standing to Appeal Ruling Striking Down 2011 Legislative Districts

Today the Supreme Court issued a 5-4 decision in Virginia House of Delegates v. Bethune-Hill. Justice Ginsburg authors the majority opinion, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Court rules that the Virginia House of Delegates lacks standing to appeal a three-judge district court’s decision that Virginia’s 2011 legislative districts had been racially gerrymandered in violation of the Equal Protection Clause.

The majority first rejects the argument that the State of Virginia had designated its House of Delegates to litigate on its behalf. It then finds that the House of Delegates lacks “standing in its own right,” because it had suffered no “legally and judicially cognizable” injury. Justice Ginsburg writes: “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”

Justice Alito authors a dissenting opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh.



June 17, 2019 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 13, 2019

Volokh on Robot Judges

Eugene Volokh has published Chief Justice Robots, 68 Duke L.J. 1135 (2019). Here’s the abstract:

Say an AI program someday passes a Turing test, because it can converse in a way indistinguishable from a human. And say that its developers can then teach it to converse—and even present an extended persuasive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, capable of regularly winning brief-writing competitions against human lawyers.

Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment.



June 13, 2019 in Recent Scholarship | Permalink | Comments (0)

Wednesday, June 12, 2019

Grumet on SCOTUS Amicus Briefs by State Attorneys General

Lisa Grumet has published Hidden Nondefense: Partisanship in State Attorneys General Amicus Briefs and the Need for Transparency, 87 Fordham L. Rev. 1859 (2019). It begins:

In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws without disclosing that similar state or local laws exist in the SAGs’ own jurisdictions. This Essay explores this problem through analysis of multistate amicus briefs filed in the 2017 Supreme Court term. It proposes requiring that SAGs disclose relevant laws from their state when they file amicus briefs on behalf of their state with the Supreme Court.



June 12, 2019 in Recent Scholarship | Permalink | Comments (0)

Monday, June 10, 2019

Some Interesting SCOTUS Cert Grants

There are some interesting grants of certiorari on today’s Supreme Court order list:

Atlantic Richfield Co. v. Christian (17-1498) presents three questions on the relationship between the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and state common-law claims, including “whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.”

Comcast Corp. v. National Association of African American-Owned Media (18-1171) presents the question: “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?” (There was a second question presented involving pleading standards under Twombly and Iqbal, but the Court granted cert only as to question #1.)

Intel Corp. Investment Policy Committee v. Sulyma (18-1116) presents the question: “Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, 29 U.S.C. 1113(2), which runs from ‘the earliest date on which the plaintiff had actual knowledge of the breach or violation,’ bars suit where all of the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.”

McKinney v. Arizona (18-1109) presents the question: “Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.” The second question presented is: “Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.”

Monasky v. Taglieri (18-935) presents two questions relating to the Hague Convention on the Civil Aspects of International Child Abduction. The first is: “Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.” The second question involves “whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.”




June 10, 2019 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 6, 2019

En Banc Ninth Circuit Reinstates Hyundai/Kia Settlement

Today the en banc Ninth Circuit issued its decision in In Re Hyundai and Kia Fuel Economy Litigation (covered earlier here). Judge Nguyen authors the majority opinion, and Judge Ikuta authors a dissenting opinion.

Contrary to the earlier panel ruling, the en banc Ninth Circuit affirms the district court with respect to both class certification and approval of the settlement.



June 6, 2019 in Class Actions, Federal Rules of Civil Procedure, MDLs, Recent Decisions | Permalink | Comments (0)

Wednesday, June 5, 2019

Gidi on Incorporating by Reference

Antonio Gidi has posted on SSRN a draft of his article, Incorporation by Reference: Requiem for a Useless Tradition, which is forthcoming in the Hastings Law Journal. Here’s the abstract:

Lawyers mechanically introduce each count in a pleading with the talismanic clause of “repeat and reallege” everything said before in that same pleading. This medieval practice made sense in the formalistic common-law pleading of the sixteenth century but has no place in modern pleadings.

This article traces the origin of the practice, demonstrates that it is not used in any other country, and argues that it is an empty tradition that must stop.





June 5, 2019 in Recent Scholarship | Permalink | Comments (0)

Tuesday, June 4, 2019

Wasserman on Sundby & Sherry and Epps & Sitaraman on Term Limits and Other Supreme Court Fixes

Today on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits. Howard reviews two recent articles: Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. (forthcoming 2019), and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. (forthcoming 2019).




June 4, 2019 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Niesel on Personal Jurisdiction and the Internet

Zoe Niesel has published #PersonalJurisdiction: A New Age of Internet Contacts, 94 Ind. L.J. 103 (2019). Here’s the abstract:

No other issue has proved more challenging in the sphere of personal jurisdiction than the internet. In addition to refusing to respect territorial boundaries, the internet allows users to access, change, create, and manage content in ways that are not present in physical space. Further, the rise of social media and other more interactive technologies, such as bots and cookies, make determining a user’s minimum contacts with a forum more challenging than ever. The time has come to acknowledge that the internet has minimum contacts with every jurisdiction.

Current approaches used when personal jurisdiction and the internet collide are straining under technological developments. The premiere approach to internet jurisdiction is the so-called “Zippo test,” which bases personal jurisdiction on whether a website is “interactive.” The Zippo approach has left the case law inconsistent and does not account for recent innovations, such as social media, targeted advertising, artificial intelligence, and bots. This Article proposes a shift in the manner in which courts should think about personal jurisdiction and website interactivity. Specifically, this Article proposes that the time has come to embrace a revised analysis that incorporates traditional fairness factors with the defendant’s implicit acknowledgement that the internet is targeting a national forum.

The analytical framework proposed by this Article seeks to remove inconsistent applications of an outdated Zippo test. However, it also attempts to be proactive. The internet is moving to become even more customized, ubiquitous, and self-aware than ever before. A new way to examine internet contacts is thus needed to account for changing technologies to ensure fairness and predictability.


June 4, 2019 in Recent Scholarship | Permalink | Comments (0)

Monday, June 3, 2019

SCOTUS Decision in Fort Bend County v. Davis: Title VII’s Charge-Filing Requirement Is Not Jurisdictional

Today the Supreme Court issued a unanimous decision in Fort Bend County v. Davis, covered earlier here. Justice Ginsburg writes the opinion. From the first paragraph: 

As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f)(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.

Although the charge-filing precondition is not jurisdictional, Justice Ginsburg writes that it is “‘mandatory’ in the sense that a court must enforce the rule if a party properly raises it.” [Op. at 7 (citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam))]. She notes, however, that “[t]he Court has reserved whether mandatory claim-processing rules may ever be subject to equitable exceptions.” [n.5 (citing Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, n. 3 (2017))].

Justice Ginsburg concludes: “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”




June 3, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on ERISA Pleading: Retirement Plans Committee of IBM v. Jander

Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:

Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.



June 3, 2019 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, May 31, 2019

Lahav & Siegelman on Falling Plaintiff Win Rates

Alexandra Lahav and Peter Siegelman have published The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 U.C. Davis L. Rev. 1371 (2019). Here’s the abstract:

For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained — albeit with increased volatility — for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most obvious explanations for the remaining fall in the win rate and subsequent volatility do not fit the data and assumptions about rational behavior.

Changes in system-level “outputs” of the justice system require a justification that is consistent with rule of law values. The absence of such an explanation for the falling win rate should be a source of concern. Further empirical studies could help explain this mystery, but such studies require data only in the possession of the courts themselves, or that are not currently systematically collected. We conclude with an explanation for why systemic studies of the workings of the justice system are important.

May 31, 2019 in Recent Scholarship | Permalink | Comments (0)

Wednesday, May 29, 2019

Meyn on the “Haves” of Procedure

Ion Meyn has published The Haves of Procedure in the William & Mary Law Review. Here’s the abstract:

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the forum and thus prefers a permissive pleading standard. In contrast, a “civil have” seeks to impede a plaintiff from bringing suit and thus prefers a demanding pleading standard. As to discovery, “criminal haves,” possessing actionable facts and seeking to control the pretrial distribution of information, resist discovery and judicial involvement. In contrast, “civil haves” often need information to pursue legal objectives, and thus prefer a formal discovery phase, along with the option of judicial intervention to temper instances of discovery abuse. The procedural divide allows the “haves” to achieve these otherwise incompatible objectives.

In the absence of a procedural divide, “criminal haves” and “civil haves” would engage in contestation over what rules govern litigation. This Article suggests that, should civil and criminal litigants be subject to the same rules, as initially proposed during federal reform in the 1940s, the introduction of litigants into a unified forum would result in a fairer approach to procedure, mitigate existing inequalities, and accomplish some litigation objectives of the “havenots.”




May 29, 2019 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, May 28, 2019

SCOTUS Decision on Removal by Counterclaim Defendants: Home Depot v. Jackson

Today the Supreme Court handed down a 5-4 decision in Home Depot U. S. A., Inc. v. Jackson. Justice Thomas authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. It begins:

The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove.

Justice Alito authored a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.






May 28, 2019 in Class Actions, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Bivens: Hernandez v. Mesa Take 2

Today the Supreme Court granted certiorari in Hernandez v. Mesa, limited to the following question: Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

This is the case’s second trip to SCOTUS; earlier coverage of the 2017 decision is here.  



May 28, 2019 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, May 24, 2019

Erbsen on Frye on what actually happened to Harry Tompkins

Now on the Courts Law section of JOTWELL is Allan Erbsen’s essay, An Erie Tale. Allan reviews Brian Frye’s recent article, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019).



May 24, 2019 in Recent Scholarship, Weblogs | Permalink | Comments (0)