Tuesday, September 29, 2020
I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.
Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.
Friday, September 25, 2020
Below is an announcement from the Cardozo Law Review seeking submissions for a special issue on Supreme Court nominations.
Yesterday, the Sixth Circuit issued a 2-1 decision in In re National Prescription Opiate Litigation, a much-anticipated case about the certification of a negotiation class in the Opioid MDL.
The majority reversed the district court’s certification of a negotiation class. Judge Clay’s majority opinion called it a “novel form of class action.” He observes that Rule 23 “does not mention certification for purposes of ‘negotiation’ or anything along those lines” and writes that “a new form of class action, wholly untethered from Rule 23, may not be employed by a court.” He also found that the district court’s certification of the negotiation class had “papered over the predominance inquiry” required by Rule 23(b)(3).
Judge Moore disagrees, with a 40+ page dissent that begins:
The Federal Rules of Civil Procedure were not written and have never been interpreted to manacle district courts that innovate within the Rules’ textual borders. The district court has breathed life into a novel concept—a class certified for negotiation purposes—to aid in its Promethean duty to secure the just, speedy, and inexpensive resolution of this byzantine multidistrict litigation. We should be in the business of encouraging, not exterminating, such resourcefulness. Certifying a negotiation class honors the Rules’ equitable heritage, complements the settlement class’s history, hews to Federal Rule of Civil Procedure 23’s textual requisites, and stirs no constitutional or policy qualms. So, with respect, I dissent.
The entire dissent is worth a read. Before proceeding to analyze whether the district court properly certified the proposed negotiation class, Part I of Judge Moore’s opinion addresses the proper approach to interpreting and applying the Federal Rules of Civil Procedure, and Part II provides an engaging history of Rule 23.
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Stay (Faraway, So Close!) in Touch with Civil Procedure, which discusses the Civil Procedure Unavailability Workshop series (covered earlier here).
Wednesday, September 23, 2020
Monday’s episode of the Strict Scrutiny podcast—with Leah Litman, Melissa Murray, Anne Joseph O’Connell, and Kate Shaw—has an interesting exchange about RBG and civil procedure (starting at around 14:00).
Monday, September 21, 2020
Friday, September 18, 2020
Last week, Donald Trump filed a petition for certiorari challenging the Fourth Circuit’s en banc decision in In re Trump. That case arises from a lawsuit filed in Maryland federal court alleging violations of the Emoluments Clauses. As covered earlier, the Fourth Circuit ultimately allowed the lawsuit to proceed, refusing to grant Trump a writ of mandamus directing the district court to dismiss the case.
The pending Supreme Court case is captioned Trump v. District of Columbia, and the questions are focused on appellate jurisdiction:
- Whether a writ of mandamus is appropriate because, contrary to the holding of the court of appeals, the district court’s denial of the President’s motion to dismiss was clear and indisputable legal error.
- Whether a writ of mandamus is appropriate, contrary to the holding of the court of appeals, where the district court’s refusal to grant the President’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. 1292(b).
If folks are interested, I talk about some of these issues in a recent article Appellate Jurisdiction and the Emoluments Litigation, which was part of the Akron Law Review’s recent symposium on federal appellate procedure.
Wednesday, September 16, 2020
As folks will recall, the last Supreme Court Term ended with oral arguments being held telephonically.
Today the Supreme Court issued a press release stating that “[t]he Court will hear all oral arguments scheduled for the October session by telephone conference, following the same format used for the May teleconference arguments.” And:
The Court will provide a live audio feed of the October oral arguments to a media pool as it did for the May arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.
Friday, September 11, 2020
Deadline Approaching: Nominations for the Pound Institute Civil Justice Scholarship Award (Monday, September 14)
As covered earlier, Monday is the deadline to nominate books or articles for the Pound Civil Justice Institute’s Civil Justice Scholarship Award. The award comes with honoraria of $7,000 for a book and $3,000 for an article.
Thursday, September 10, 2020
Today on the Courts Law section of JOTWELL is Leonardo Mangat’s essay, Unshrouding Our Day-to-Day Courts. Leonardo reviews Justin Weinstein-Tull’s article, The Structures of Local Courts, which is forthcoming in the Virginia Law Review.
Wednesday, September 9, 2020
Last week the Eleventh Circuit issued a decision in Cantu v. City of Dothan, reversing the district court’s grant of qualified immunity. Judge Ed Carnes’ opinion for the panel begins with a quote from Rick Bragg’s The Prince of Frog Town:
When Rick Bragg wrote about “a gothic story” in which “you can see the bad luck tumbling, as if the devil himself had shaved the dice,” he was talking about his father’s tragic life, but those words could also describe Robert Earl Lawrence’s effort to help a stray dog he found in a Walmart parking lot.
The introductory paragraphs describe the events that would lead to Lawrence’s death:
When the backup officer arrived at the shelter parking lot, still more words were exchanged. That officer told Lawrence that if he didn’t stop talking he was going to jail. Lawrence didn’t stop talking and the backup officer, with the assistance of the other two officers on the scene, attempted to arrest and handcuff him. Lawrence would not submit and resisted –– not aggressively, but vigorously. He refused to put his hands behind his back as ordered, he struggled, and twice he temporarily freed himself from an officer’s grip and ran around the car trying to get away, but officers caught up with him. In the last moments of the encounter, while trying to get free from three officers again, he put his hand either on an officer’s taser, or on the officer’s wrist or hand that was holding the taser. In response, an officer pulled her service weapon and without warning, and to the surprise of the other two officers, shot Lawrence while he was being held. He was taken to a hospital where he died from the gunshot wound.
The district court granted summary judgment on qualified immunity grounds to the officer who shot Lawrence. But the panel unanimously reverses and remands for further proceedings:
Taking the facts in the light most favorable to [the plaintiff], a reasonable jury could find that Woodruff violated Lawrence’s clearly established constitutional rights by shooting him. As a result, Woodruff is not entitled to summary judgment based on qualified immunity or based on state agent immunity.
Thursday, September 3, 2020
Rich Freer has posted on SSRN a draft of his article, The Political Reality of Diversity Jurisdiction, which is forthcoming in the Southern California Law Review. Here’s the abstract:
Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts.
But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine.
These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.
Tuesday, September 1, 2020
After a brief hiatus, the Unavailability Civil Procedure Workshop resumes today, on a monthly basis. Here are the fall sessions:
September 1, 2020: Howie Erichson -- Distinguishing Between Facts And Conclusions Under Iqbal
October 6, 2020: Portia Pedro -- Remedies and Civil Procedure
November 10, 2020: Zach Clopton & Colleen Shanahan -- State Civil Procedure
Monday, August 31, 2020
We covered earlier the D.C. Circuit’s grant of a writ of mandamus in In re Flynn, which involves the federal government’s Rule 48(a) motion to dismiss the criminal charges against Michael Flynn. Today the en banc D.C. Circuit reversed course, denying Flynn’s request for a writ of mandamus by an 8-2 vote.
From the court’s per curiam opinion:
As to Petitioner’s first two requests—to compel the immediate grant of the Government’s motion, and to vacate the District Court’s appointment of amicus—Petitioner has not established that he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381. We therefore deny the Petition.
Friday, August 28, 2020
Last week the Second Circuit denied President Trump’s petition for en banc rehearing in CREW v. Trump. This left in place the panel decision (953 F.3d 178) reversing the district court’s dismissal for lack of standing.
Here’s a link to the en banc ruling, which features several separate opinions and statements:
José A. Cabranes, Circuit Judge, dissents by opinion from the denial of rehearing en banc.
Steven J. Menashi, Circuit Judge, joined by Debra Ann Livingston and Richard J. Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
John M. Walker, Jr., Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Pierre N. Leval, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Wednesday, August 26, 2020
Judge Patrick Higginbotham, Judge Lee Rosenthal, and Professor Steve Gensler have published Better by the Dozen: Bringing Back the Twelve-Person Civil Jury in the latest issue of Judicature. Their article begins:
A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers. To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.
History. Social science. Civics. Common sense. That’s a powerful quartet. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.
Tuesday, August 25, 2020
Saturday, August 22, 2020
This week the Ninth Circuit issued a 2-1 decision in Rittmann v. Amazon.com, addressing an arbitration issue similar to the one recently decided by the First Circuit last month (covered earlier here). The Ninth Circuit case involves drivers who participate in the “AmFlex program,” under which “Amazon contracts with individuals to make ‘last mile’ deliveries of products from Amazon warehouses to the products’ destinations using the AmFlex smart phone application.” Like the First Circuit, the Ninth Circuit concludes that Amazon’s arbitration provision is not covered by the Federal Arbitration Act (FAA) and is not enforceable.
Judge Milan Smith authors the majority opinion (joined by Judge Randy Smith, no relation), and Judge Bress dissents. The majority concludes that the AmFlex last-mile delivery providers are exempt from the FAA under 9 U.S.C. § 1 because they are “transportation workers ‘engaged in foreign or interstate commerce’” even though they do not cross state lines: “The plain meaning of the relevant statutory text, case law interpreting the exemption’s scope and application, and the construction of similar statutory language all support the conclusion that transportation workers need not cross state lines to be considered ‘engaged in foreign or interstate commerce’ pursuant to § 1.”
Wednesday, August 19, 2020
The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:
The Pound Civil Justice Institute is pleased to offer again this year our award designed to recognize current research and writing on civil justice issues, and to encourage such research in the future. The Civil Justice Scholarship Award will be presented at Pound’s winter Fellows receptions. The nomination deadline is Monday, September 14, 2020; the award will be presented on Sunday, February 7, 2021 in Palm Springs, California.
We will recognize two works annually (as possible) – one book and one article. Law school deans may make one nomination for each category (book and article) for professors in their school. Self-nominations are also permitted.
Monday, August 17, 2020
Earlier this month, the Federal Circuit issued its decision in National Veterans Legal Services Program v. United States. Judge Hughes’ opinion begins in the style of Goldilocks:
These interlocutory cross-appeals challenge the district court’s interpretation of a statutory note to 28 U.S.C. § 1913 permitting the federal judiciary to charge “reasonable fees” for “access to information available through automatic data processing equipment.” Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right. We therefore affirm and remand for further proceedings.
Here’s coverage from Debra Cassens Weiss (ABA Journal).
(H/T Roger Baron)