Wednesday, March 20, 2019
Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.
Today’s per curiam opinion remands the case for the lower courts to consider the standing question:
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”
Tuesday, March 19, 2019
The Federal Bar Association has announced its 4th Annual National Community Outreach Project for April 2019. This year's project focuses on educating youth about the judicial system by letting them see first hand how courthouses operate. Here's the FBA press release:
Arlington, VA – The Federal Bar Association announces its fourth annual National Community Outreach Project, reaching out to youth and other communities coast to coast to open the federal judicial system for the public to see. In these times when communities, especially youth, have lost confidence in our judicial system, the FBA’s NCOP seeks to instill confidence in the judicial system in middle and high-school students and other communities by bringing them into the courthouses, meeting with lawyers, observing court proceedings, and talking directly to federal judges.
In recent years, Federal Bar Association chapters across the United States participated, spreading the word throughout the country and involving the federal judiciary in districts throughout the nation. This program has made a lasting effect on the communities they serve.
The Federal Bar Association’s mission statement includes a commitment to the communities in which their members serve. With events like tours of the federal courts, viewing federal court proceedings, tours of federal agencies and providing citizens with free legal advice, the Federal Bar Association has reached out in a variety of creative ways to fulfill this commitment.
Sponsored by the Foundation of the Federal Bar Association, the NCOP is back this year, even bigger than last year, undoubtedly with an even bigger impact. Through the NCOP, the FBA is making every April the “National Community Outreach” month. The National Community Outreach Project of 2019 will kick off in April. For more information, please visit: www.fedbar.org/NCOP
More than 25 chapters and sections in multiple districts across the country have agreed to participate in the fourth annual National Community Outreach Project.
Main Website: www.fedbar.org
NCOP Link: www.fedbar.org/NCOP
Tuesday, March 12, 2019
Monday, March 11, 2019
Simona Grossi and Allan Ides have posted on SSRN a draft of their article, The Modern Law of Class Actions and Due Process. Here’s the abstract:
Our goal in writing this article was to offer helpful insight for a reformed interpretation and application of Rule 23 that would make the Rule serve its intended democratic function. The idea of due process is a promise of the rule of law tempered by reasonableness, fairness, and efficiency. It embraces both the value of individual autonomy and the collective interests of the community. The idea of class actions, premised on due process, is to provide a pragmatic method of dispute resolution that is fair to the individual and responsive to the needs of the community and the challenges generated by widely spread and shared harms. In this respect, class actions operate as a tool of democracy. Rule 23 should be interpreted from this hopeful and effective perspective, one that balances individual autonomy against the legitimate needs of the community. But the Rule is not accomplishing its mission. As we show in the article, it appears to be infused with its framers’ self-doubts, and the Supreme Court treats it as an unwelcome guest in the home of traditional litigation forms—see, for example, our discussions of Ortiz v. Fibreboard Corporation (1999); Wal-Mart Stores, Inc. v. Dukes (2011); Jennings v. Rodriguez (2018); Nutraceuticals Corp. v. Lambert (2019).
Friday, March 8, 2019
On Friday, April 5, 2019, the University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law will host its 2019 Rothgerber Constitutional Law Conference, “National Injunctions: What Does the Future Hold?” The conference is free and open to the public. Register here by March 29.
From the announcement:
This year's conference will feature an exciting panel of diverse scholars and lawyers with remarks by Dean S. James Anaya, University of Colorado Law School; Phil Weiser, Colorado Attorney General; and Professor Suzette Malveaux, University of Colorado Law School.
Sessions will examine the past, present, and future of national injunctions and the remedy’s impact on immigration, civil rights, separation of powers, and more. Topics include court authority and policy considerations, lessons learned from various models, and other conceptions of national injunctions.
Thursday, March 7, 2019
Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, A Primer on Opioid-Epidemic Litigation. Roger reviews a recent article by Abbe Gluck, Ashley Hall & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46 J.L. Med. & Ethics 351 (2018).
Wednesday, March 6, 2019
Linda Mullenix has published Policing MDL Non-Class Settlements: Empowering Judges Through the All Writs Act, 37 Rev. Litig. 129 (2018). Here’s the abstract:
Commentators have identified that one of the most significant problems in current MDL practice is the lack of judicial authority over non-class aggregate settlements. This paper explores the use of the All Writs Act to provide MDL judges with robust authority to manage, supervise, and ultimately review non-class aggregate deals that are the object of much recent criticism. It rejects the thesis that judicial supervision of non-class settlements is unwarranted because these deals are contractual, and that oversight therefore removes claimant autonomy and damages the adversarial system. Several MDL judges already have invoked the All Writs Act to police parallel class action settlements that might jeopardize pending MDL negotiations. This paper explores and endorses the argument that MDL judges may, with equal force, exercise power pursuant to the All Writs Act to police pending non-class settlements in their jurisdiction.
As the MDL non-class settlement paradigm has evolved, some MDL judges have sought to intervene in settlement activities by invoking authority pursuant to three theories: (1) the quasi-class action, (2) the inherent powers of the court, and (3) the All Writs Act. As critics note, the quasi-class action and inherent judicial power have provided weak support for judicial intervention in non-class aggregate settlements. But to date, commentators have paid scant attention to judicial power under the All Writs Act or its use in MDL proceedings.
Monday, March 4, 2019
Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)
On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”
You can find all the details – and register for the symposium (it’s free) – here. Come join us!
From the announcement:
An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.
The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.
Confirmed panelists include:
Thursday, February 28, 2019
Today on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, In Praise of Non-Partisan Law Reform of Class Actions. Jasminka reviews Howard Erichson’s recent article, Civil Litigation Reform in the Trump Era: Threats and Opportunities Searching for Salvageable Ideas in FICALA, 87 Fordham L. Rev. 19 (2018).
Wednesday, February 27, 2019
SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling
Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.
In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:
“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]
Howard Wasserman has a more detailed recap at SCOTUSblog.
Tuesday, February 26, 2019
Whether the “discovery rule” applies to toll the one (1) year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the Fourth and Ninth Circuits have held but the Third Circuit (sua sponte en banc) has held contrarily.
Monday, February 25, 2019
Today the Supreme Court decided Yovino v. Rizo, issuing a per curiam opinion that begins:
A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date. In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?
The answer is no. The opinion concludes:
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.
Thursday, February 21, 2019
Call for Papers: Eleventh Annual Junior Faculty Federal Courts Workshop (Arkansas-Fayetteville, September 6-7, 2019)
Here is the announcement:
The University of Arkansas School of Law will host the Eleventh Annual Junior Faculty Federal Courts Workshop on September 6-7, 2019. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.
The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin on the morning of Friday, September 6, and conclude by lunchtime on Saturday, September 7. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.
The workshop will take place on the University of Arkansas’s flagship campus in Fayetteville. The Law School will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to firstname.lastname@example.org by March 29, 2019. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.
Tuesday, February 19, 2019
From the announcement:
Boston University School of Law (host; co-sponsors Seattle University and University of Washington)
Workshop Date: Wednesday, May 8, 2019
Abstract Deadline: March 15, 2019
Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter
Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.
The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.
This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.
Full details here:
Friday, February 15, 2019
Here is the announcement:
Full-Time Faculty Podium Visitors for 2019-2020
The John Marshall Law School in Chicago seeks two or more experienced faculty members to serve as full-time visiting professors for the 2019-2020 academic year (one or both semesters). We need coverage in the areas of Civil Procedure, Corporations, Employee Benefits, Estates & Trusts, Income Taxation, Legal Research and Writing, and Property. Candidates must have law school teaching experience. It is contemplated that the successful candidates will be current full-time faculty members at ABA-approved law schools, although others with extraordinary credentials may be considered.
To apply, submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at email@example.com. The Committee will begin reviewing applications as they are received and will continue on a rolling basis until the positions are filled. We may conduct an interview via Skype or a similar platform or in person, and may request submission of teaching evaluations or other materials.
The John Marshall Law School is committed to diversity, access, and opportunity. Subject to the approval of our accreditors, JMLS is in the process of being acquired by the University of Illinois at Chicago, with an anticipated closing date in August 2019. For more information, visit www.jmls.edu and jmls.uic.edu.
The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.
Wednesday, February 13, 2019
Today on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay Building a Better Mousetrap. Jay reviews a recent book by Christopher Hodges & Stefaan Voet, Delivering Collective Redress: New Technologies (2018).
Thursday, February 7, 2019
Here is the Call for Papers:
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.
While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Bob Bone (UT Austin), firstname.lastname@example.org
Dave Marcus (UCLA), email@example.com
Liz Porter (UW), firstname.lastname@example.org
Brooke Coleman (Seattle U), email@example.com
Tuesday, February 5, 2019
Conference and Call for Papers: Comparative Law and International Dispute Resolution Processes (University of Missouri, October 17-19, 2019)
The American Society of Comparative Law’s 2019 Annual Meeting will take place at the University of Missouri from October 17-19, 2019:
The American Society of Comparative Law’s 2019 annual program seeks to delve more deeply into how comparative law operates formally and informally, visibly and invisibly, publicly and privately, in cases involving cross-border dispute resolution. The program includes two plenary sessions that are intended to provide an overview of comparative law in international dispute resolution as well as recommendations and forecasts for the future of the field.
More details are available here.
If you wish either to propose concurrent panels or to submit abstracts for the works-in-progress conference that will take place in conjunction with the annual meeting, the deadline is May 20.
Thursday, January 31, 2019
Rhonda Wasserman has posted on SSRN her article, Ascertainability: Prose, Policy, and Process, 50 Conn. L. Rev. 695 (2018). Here’s the abstract:
One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like soft drinks and snacks and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue.
Ascertainability is not only of great practical importance, but it is interesting on three different levels. First, there is a question of prose – whether the text of the Rule supports the implication of the strict ascertainability requirement. Second, there is a question of policy – whether concern for the class action defendant, the absent class members, or the trial court overseeing the action justifies imposition of the strict requirement, notwithstanding its harsh impact on consumer class actions. Third, there is a process question: which governmental actor – the lower courts, the Supreme Court, the Advisory Committee on Civil Rules, or Congress – has the greatest institutional competency to resolve the policy issue and establish a uniform approach to ascertainability. This Article addresses each of these questions in turn.
Wednesday, January 30, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Enhancing the Role of States in Making Constitutional Law. Jim reviews Judge Jeffrey Sutton’s recent book, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).