Wednesday, November 7, 2018
My recent article, Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), is now up on SSRN. Here’s the abstract:
After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic level of minimum contacts required for specific jurisdiction, and (2) the test for determining whether a case can proceed on a specific jurisdiction theory rather than having to satisfy the newly restrictive general jurisdiction standard.
This Article begins with a typology that identifies three situations where personal jurisdiction is most likely to threaten access to justice: the home-state scenario, the safety-net scenario, and the aggregation scenario. It then explains why the Court’s recent decisions support an approach to minimum contacts that will—in most cases—permit a plaintiff who is injured in his or her home state to file suit there. Even beyond the home-state scenario, a case should be evaluated under the more lenient specific jurisdiction standard as long as there is a rational basis for the forum to adjudicate the availability of judicial remedies in that particular case. This rationality standard coheres with the Court’s approach to other areas of law governing the permissible reach of a state’s sovereign power. And it can permit jurisdiction when other courts are inadequate or unavailable (the safety-net scenario) and when proceeding in a single forum is necessary for effective adjudication of claims arising from a common course of conduct (the aggregation scenario).
Thanks again to the editors at the Vanderbilt Law Review for their great work on the piece!
Monday, November 5, 2018
Friday, November 2, 2018
There’s been a flurry of recent Supreme Court activity involving Juliana v. United States, a case pending in U.S. District Court for the District of Oregon (covered earlier here and here). Twenty-one young plaintiffs are suing the federal government alleging that it has contributed to climate change in violation of the their constitutional rights.
On October 18, the Solicitor General applied for a stay of discovery and trial. The Supreme Court granted the stay on October 19, “pending receipt of a response, due on or before Wednesday, October 24, 2018, by 3 p.m., and further order of the undersigned or of the Court.” The plaintiffs filed their response on October 22, and the Solicitor General file a reply on October 24.
At this point, there’s been no further ruling from the Supreme Court. The Supreme Court proceedings are captioned In re United States and the docket is here.
UPDATE: Late Friday afternoon, the Supreme Court issued an order denying the Solicitor General’s motion. The Court indicated, however, that “adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.”
Thursday, October 25, 2018
Now on the Courts Law section of JOTWELL is Alexandra Lahav’s essay, Go Big or Go Home: The Debate Over National Injunctions. Alexandra reviews Amanda Frost’s article, In Defense of Nationwide Injunctions, which is forthcoming in the N.Y.U. Law Review.
Friday, October 19, 2018
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Severability, Separation of Powers, and Agency Design. Kevin reviews Kristin Hickman’s recent article, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 475 (2017).
Monday, October 8, 2018
This week, NYU School of Law’s Center on Civil Justice is hosting MDL at 50 - The 50th Anniversary of Multidistrict Litigation. The conference is being held at NYU (Vanderbilt Hall, 40 Washington Square South, NYC) on Friday, October 12 and Saturday, October 13.
You can find the full schedule here.
The conference is free to attend. RSVP here.
Hope to see folks there!
Friday, September 28, 2018
This action was commenced when Citibank, N.A. filed a routine state-court collection action against respondent George W. Jackson. Petitioner Home Depot U. S. A., Inc. was not a party to that action and never became a party to that collection dispute. Jackson then filed a counterclaim against Citibank asserting class-action consumer-protection claims. In addition to naming Citibank, Jackson named Home Depot and another company as original defendant to that counterclaim class action. The Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, permits "any defendant in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements. Petitioner Home Depot is an original defendant in the class action at issue here and was never a plaintiff in any claim associated with this case.
The question presented is: Whether an original defendant to a class-action claim can remove the class action if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act when the class action was originally asserted as a counterclaim against a co-defendant.
The Court also directed the parties to address the following question:
Should this court’s holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)—that an original plaintiff may not remove a counterclaim against it—extend to third-party counterclaim defendants?
Tuesday, September 25, 2018
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, Lies, Dating Lies, and Small Claims Court. Robin reviews Irina Manta’s recent article, Tinder Lies, which is forthcoming in the Wake Forest Law Review.
Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Friday, September 14, 2018
Here is a quick summary:
- H.R. 3487. This bill’s purpose is to “amend section 1332 of title 28, United States Code, to provide that the requirement for diversity of citizenship jurisdiction is met if any one party to the case is diverse in citizenship from any one adverse party in the case.”
Here is the text of the bill.
H.R. 3487 was not reported, apparently because no reporting quorum was present. (See 3:54:25 here.)
- H.R. 6730, the “Injunctive Authority Clarification Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to prohibit the issuance of national injunctions, and for other purposes.”
Here is the text of the bill.
H.R. 6730 was ordered to be reported during the hearing.
- H.R. 6754, the “CIRCUIT Act of 2018” or the “Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to modify the structure of the Court of Appeals for the Ninth Circuit, and for other purposes.”
Here is the text of the bill.
H.R. 6754 was ordered to be reported during the hearing.
- H.R. 6755, the “Judiciary Reforms, Organization and Operational Modernization Act of 2018” or the “Judiciary ROOM Act of 2018.” This bill’s purpose is to “provide for additional Article III judges, to modernize the administration of justice, and for other purposes.”
Here is the text of the bill.
H.R. 6755 was ordered to be reported during the hearing.
Friday, September 7, 2018
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Politically Powerful and Judicial Review. Fred reviews Aaron Tang’s recent article, Rethinking Political Power in Judicial Review, which is forthcoming in the California Law Review.
Thursday, September 6, 2018
Shirin Sinnar has published Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018). Here’s the abstract:
In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain trans-substantive procedures, and distorted perceptions across the civil–criminal procedure divide.
Tuesday, September 4, 2018
Aggregation — the ability to join parties or claims in a federal civil lawsuit — has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction — especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb — threatens the salutary benefits of aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. I offer a solution for preserving aggregation’s advantages in the face of the personal-jurisdiction trend: authorize a broader personal-jurisdiction scope in federal court for certain multiparty and multiclaim cases that would benefit from aggregation. I defend such a regime as constitutional and consistent with the norms of both personal jurisdiction and aggregation.
Ben Grunwald was published Strategic Publication, 92 Tul. L. Rev. 745 (2018). Here’s the abstract:
Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.
This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.
Wednesday, August 29, 2018
The Notre Dame Law Review recently published a symposium issue entitled Federal Courts, Practice & Procedure: The Future of Qualified Immunity, which includes pieces by Sam Bray, Joanna Schwartz, Aaron Nielson & Chris Walker, Karen Blum, Alan Chen, Jack Preis, Scott Michelman, David Shapiro & Charles Hogle, Alex Reinert, and Fred Smith.
Tuesday, August 28, 2018
Below is the announcement for the William P. Butterfield Award for Excellence in eDiscovery Writing:
The Sedona Conference and Hausfeld, LLP are sponsoring the William P. Butterfield Award for Excellence in eDiscovery Writing. The Award will be presented annually to the winner of a writing competition held to recognize and incentivize innovative legal thinking and technical solutions that advance the field of eDiscovery and promote cooperation, collaboration and efficiency in eDiscovery. The winner of the competition will be recognized in a news release announcing the Award, receive a $10,000 cash award from Hausfeld LLP and, at the option of the winner and The Sedona Conference, have his or her winning paper published in The Sedona Conference Journal.
For more information about the Award and details about how to enter the writing competition, please see https://www.hausfeld.com/williampbutterfieldaward.
The 2018 deadline for submissions is October 1, 2018. The winner will be announced before 2018 year's end. For 2019 and the years following, the submission deadline will be March 1 of each year, with the winner to be announced on or before May 1 of each year.
Monday, August 27, 2018
Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
Friday, August 24, 2018
Cathie Struve has published The Federal Rules of Inmate Appeals, 50 Ariz. St. L.J. 247 (2018). Here’s the abstract:
The Federal Rules of Appellate Procedure turn fifty in 2018. During the rules' half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past fifty years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals. In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities—and underscores the salience of local court practices and institutional partnerships.
Wednesday, August 22, 2018
Friday, August 17, 2018
Deadline: October 10, 2018
Event Date: February 7-9, 2019
Location: Brigham Young University, Provo, UT
Organization: Brigham Young University
Contact: James Heilpern, firstname.lastname@example.org
BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.
The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at email@example.com.