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.
Wednesday, August 11, 2021
Joe Glannon has shared the following hiring announcement from Suffolk University Law School:
I am writing to let you know that Suffolk University Law School is hiring. We are looking for both entry level and lateral candidates to teach in one or more of these areas: Law and Race/Gender/Sexuality studies, Contracts, Property, Civil Procedure, Intellectual Property, Trusts and Estates and Legal Practice Skills. All positions are tenure track. We are particularly interested in hiring candidates with relevant practice experience.
The full announcements can be found here for doctrinal positions. Please reach out to me with any questions. I am co-chairing the doctrinal hiring process but am happy to field questions about any of the positions.
Tuesday, August 10, 2021
Adam Zimmerman has posted on SSRN a draft of his article The Class Appeal, which will be published in the University of Chicago Law Review. Here’s the abstract:
For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.
This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.
This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.
Wednesday, August 4, 2021
Yesterday, the full Ninth Circuit voted to vacate the April panel decision in Olean Wholesale Grocery v. Bumble Bee Foods and to hear the case en banc.
One of the important issues in the case is the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. The majority opinion, authored by Judge Bumatay, had held that “the mere presence of some noninjured class members does not defeat predominance, but we hold that the number of uninjured class members must be de minimis.” Judge Hurwitz dissented from this part of the opinion, arguing instead that “[t]he critical question is not what percentage of class members is injured, but rather whether the district court can economically ‘winnow out’ uninjured plaintiffs to ensure they cannot recover for injuries they did not suffer.”
In June, the Supreme Court flagged this issue (without resolving it) in footnote 4 of Justice Kavanaugh’s majority opinion in TransUnion. “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.”
Wednesday, July 28, 2021
There’s still time to submit papers for the next installment of the Civil Procedure Workshop’s online works-in-progress series, which is happening on Thursday, August 12 (1:00-3:00pm eastern time). But you’ll need to act fast. Here’s a quick reminder from the organizers Pam Bookman, Brooke Coleman, and Dave Marcus:
If you would like to present a paper (regardless of what you indicated on the original form), please upload your paper using this form by Thursday, July 29. Please note that we will be putting presenters into groups on Friday, July 30, and so we will not be accepting late submissions. This is meant to be a real workshop format, so feel free to submit earlier stage drafts. However long your submission is, please include a note on the document you submit identifying the 10 pages that readers should focus on in anticipation of the presentation. The original post is reprinted below.
Here’s the initial announcement, which includes the registration link:
The organizers of the Civil Procedure Workshop (“CPW”), an annual gathering of civil procedure scholars, look forward to an in-person gathering at Northwestern University in May 2022. In the meanwhile, we invite all interested in civil procedure scholarship to participate in an online works-in-progress series the CPW has scheduled for July 15, 2021, and August 12, 2021. Both sessions will proceed from 1:00-3:00 pm east coast. Anyone who wishes to present a paper on a topic related to civil procedure is welcome and encouraged to do so. We will organize participants into small discussion groups, to enable all authors to present their work and receive feedback from colleagues.
Authors are encouraged to present their work in whatever form it takes. Full drafts are welcome, but so too are shorter summaries or partially completed papers.
Those who do not wish to present their work are also encouraged to attend. We hope that these sessions will give colleagues a chance to gather, if only online, and continue to support our national community of procedure scholars that many of us enjoy so much.
Please register for the works-in-progress series here.
You are encouraged to attend both sessions and are welcome to present at one, both, or neither. If you plan to present your work, we ask that you submit your paper to the organizers by July 1, 2021, for the July 15 session, and by July 29, 2021, for the August 12 session, to give organizers a chance to assemble groups and distribute papers to participants. If you are presenting a full draft, we ask that you also identify a ten-page excerpt that readers can particularly focus on in advance of the discussions.
Hope to see y’all there!
Tuesday, July 27, 2021
Law & Contemporary Problems Issue in Honor of Francis McGovern: Innovations in Complex Litigation and Settlement
Duke’s Law & Contemporary Problems has published an issue in honor of Francis McGovern, Innovations in Complex Litigation and Settlement. Here are the details and links to the symposium contributions:
Monday, July 26, 2021
Here is the announcement:
The AALS Section on Federal Courts is pleased to announce the 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 2022 AALS Annual Meeting.
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, 2021 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2021), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Leah Litman at the University of Michigan Law School (firstname.lastname@example.org). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2021. Nominations will be reviewed by a prize committee comprised of Professors Curt Bradley (University of Chicago), Maggie Gardner (Cornell), Leah Litman (Michigan), Joanna Schwartz (UCLA), and Diego Zambrano (Stanford), with the result announced at the Federal Courts section program at the 2022 AALS Annual Meeting.
Sixth Circuit Decision on Appellate Jurisdiction and Manufactured Finality (Guest Post by Andrew Pollis)
Andrew Pollis presents the following guest post on a very interesting Sixth Circuit decision:
* * *
Last week, in Rowland v. Southern Health Partners, Inc., the Sixth Circuit issued a split decision on the vexing question of manufactured finality in civil actions—that is, a party’s dismissal of unadjudicated claims as a means of securing appellate jurisdiction over the district court’s resolution of an adjudicated claim. The majority rejected the maneuver, explaining its rationale in the opening paragraph of the decision:
Can a litigant circumvent the requirements of Rule 54(b) by the expedient of voluntarily dismissing her surviving claims in order to seek immediate appellate review of an adverse judgment on her resolved claims, with the intention of reinstating the dismissed claims should she obtain a favorable outcome on appeal? Eight years ago, we answered this question no, because such a dismissal does not create a final order under 28 U.S.C. § 1291. Page Plus of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658, 658 (6th Cir. 2013). The answer is still no.
The majority reiterated the court’s previous holding in Page Plus that there are only two circumstances that permit the appeal to go forward in the face of manufactured finality: (1) when “a voluntary dismissal comes at a cost,” such as when “a party assumes the risk that the statute of limitations, any applicable preclusion rules or any other defenses might bar recovery on the claim”; and (2) when “a claim voluntarily dismissed without prejudice must be re-filed in a separate action,” which removes the “risk that the same case will produce multiple appeals raising different issues.” The majority also noted that its holding was consistent with the holdings of other appellate courts to address the issue, save the Second Circuit.
Judge Karen Moore, in dissent, took issue primarily with the majority’s characterization that the plaintiff had in fact assumed no risks in agreeing to dismiss her unresolved claims:
Unlike in Page Plus, here nothing in the district court’s order states or even hints that the parties agreed that Defendants would not assert any time-based affirmative defenses against the voluntarily dismissed state-law claims. In fact, Defendants have explicitly stated that they believe that any re-filing of the voluntarily dismissed claims would be time-barred.
But perhaps the most interesting feature of Judge Moore’s dissent is her discussion of the inconsistent rulings courts have issued in these types of cases. She noted that litigants’ efforts to manufacture finality have “troubled courts of appeals for over forty years” and that “[n]early every circuit has weighed in on this question with inter- and intra-circuit splits causing confusion and frustration for both courts and litigants.” And she lamented the “disturbing lack of predictability in circuits that allow or do not allow litigants to employ Rule 41(a) dismissals without prejudice to gain appellate review; intra-circuit splits and unclear exceptions exist both in circuits with a bright-line rule disfavoring such appeals and in circuits that routinely allow them.” She admonished litigants that the “disagreement and confusion sown by the circuits” require parties to be “very wary of using Rule 41(a) as a mechanism for obtaining immediate appellate review. . . . Nothing is certain, even in a circuit that purports to allow parties to utilize Rule 41(a)(2) voluntary dismissals to secure appellate review.” Judge Moore also suggested that the Supreme Court “may eventually “intervene and decisively bar litigants from using Rule 41(a) voluntary dismissals without prejudice as an option to pursue appellate review,” given its holding in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), that “evinces a strong respect for rulemaking as the proper avenue for determining when a decision is final for purposes of [28 U.S.C. § 1291] or when a decision is otherwise appealable.”
Friday, July 23, 2021
Now on the Courts Law section of JOTWELL is Richard Re’s essay, A Rule Against Fun. Richard reviews Nina Varsava’s recent article, Professional Irresponsibility and Judicial Opinions, which is forthcoming in the Houston Law Review.
Thursday, July 22, 2021
Yesterday the U.S. Court of Appeals for the Seventh Circuit issued its decision in City of Fishers, Indiana v. DIRECTV. Judge Scudder’s opinion for a unanimous panel begins:
In the lawsuit underlying this appeal, a group of Indiana cities seeks a declaration that Netflix and other video streaming platforms owe them past and future franchise fees under an Indiana statute. The cities filed the action in state court, but the defendant streaming platforms removed the case to federal court. Relying on the doctrine of comity abstention, the district court declined to exercise federal jurisdiction and remanded the case. At this early stage, the only question before us is whether the district court properly abstained under the teachings of Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010), and like cases. We conclude that it did and therefore affirm.
Monday, July 12, 2021
NYU Law School’s Center on Civil Justice is hosting a Zoom celebration of the life of Judge Jack Weinstein, on Wednesday, July 14th, 2:30pm-4:30pm (EDT). Details here.
Confirmed speakers include: Sheila Birnbaum (Dechert), Elizabeth Cabraser (Leiff Cabraser), Hon. Denise Cote (SDNY), Marc Falkoff (NIU), Ken Feinberg (Feinberg Law Offices), Hon. John Gleeson (Debevoise), John Goldberg (Harvard), Samuel Issacharoff (NYU), Troy McKenzie (NYU), Chris Seeger (Seeger Weiss), and Adam Zimmerman (Loyola).
Here’s the link to register.
Wednesday, July 7, 2021
Below is a hiring announcement from Louisiana State University, Paul M. Hebert Law Center:
LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire pre-tenure or tenured lateral faculty members in constitutional law, criminal law and procedure, federal courts and procedure, evidence, and professional responsibility. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and legal scholarship, as well as a commitment to outstanding teaching.
Equal Opportunity Employer Statement: LSU is committed to providing equal opportunity for all qualified persons in admission to, participation in, or employment in the programs and activities which the University operates without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity / equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. To learn more about how LSU is committed to diversity and inclusivity, please see LSU’s Diversity Statement and Roadmap.
Applications should include a letter of application, resume, references, and teaching evaluations to:
Christina M. Sautter
Chair, Faculty Appointments Committee
c/o Pam Hancock (or by email to email@example.com)
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, Louisiana 70803-0106
Tuesday, July 6, 2021
Below is a hiring announcement from Gonzaga University School of Law:
GONZAGA UNIVERSITY SCHOOL OF LAW in Spokane, WA seeks applicants for up to three entry-level full-time tenure-track positions as Assistant Professor beginning in the Fall 2022. Our curricular needs include a variety of first-year, required, and elective courses, including Civil Procedure, Complex Litigation, and E-Discovery; Constitutional Law, Employment Discrimination, Federal Courts, Health Law, and Indian Law; Contracts, Antitrust, and other Business Law courses with an emphasis on Corporate Social Responsibility; and academic support or bar preparation courses taught in conjunction with doctrinal courses. Gonzaga Law embraces a unified faculty model, in which all faculty members are supported as scholars in all subject matter areas and have the opportunity to teach experiential, clinical, academic support, or bar preparation courses if desired. Candidates must demonstrate the ability to be an outstanding teacher, a commitment to service, and excellent scholarly potential, particularly in alignment with Gonzaga Law’s two academic Centers – the Center for Civil & Human Rights and the Center for Law, Ethics & Commerce. For Gonzaga University School of Law’s mission and diversity statements, please visit https://www.gonzaga.edu/school-of-law/about/mission-vision
To apply or view the complete position description, please visit our website at www.gonzaga.edu/jobs. To apply, please visit our website at www.gonzaga.edu/jobs. Applicants must complete an online application and electronically submit the following: (1) a cover letter, (2) a curriculum vitae, (3) a statement that includes evidence of teaching effectiveness and experience creating and maintaining an inclusive learning environment, and (4) a list of three references. Candidates may, at their option, also upload a research agenda and statement of teaching philosophy. Additionally, finalists will be asked to provide names and contact information for three professional references to provide confidential letters of recommendation. Inquiries about the position may be directed to the Chair of the Faculty Recruitment Committee, Professor Agnieszka McPeak, at firstname.lastname@example.org; however, the applicant must apply directly to Gonzaga University, Office of Human Resources. The position closes on September 1, 2021 at midnight, PST. However, for priority consideration, please apply by July 22, 2021 at midnight, PST. For assistance with your online application, please contact Human Resources at 509-313-5996.
Friday, July 2, 2021
Section 77z-1(b)(1) of the Private Securities Litigation Reform Act (“Reform Act”) provides:
In any private action arising under [the Securities Act of 1933], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds, upon the motion of any party, that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
15 U.S.C. § 77z-1(b)(1) (emphasis added).
The question presented is:
Whether the Reform Act’s discovery-stay provision applies to a private action under the Securities Act in state or federal court, or solely to a private action in federal court.
Wednesday, June 30, 2021
Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials (Pound Civil Justice Institute Webcast, 7/17/2021)
The Pound Civil Justice Institute’s 2021 Forum for State Appellate Court Judges will be held by webcast on Saturday, July 17 (11:00 am – 5:30 pm EDT). The topic is “Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials,” and it will feature papers by Valerie Hans and Shari Diamond.
Academics who wish to attend can register here (deadline: July 8). Here is the full program: