Thursday, April 15, 2021
In an interesting decision, the U.S. Court of Appeals for the D.C. Circuit has certified four questions to the D.C. Court of Appeals. The case is Akhmetshin v. Browder, which involves a defamation claim against a citizen of the United Kingdom. Personal jurisdiction in D.C. federal court depends on the District of Columbia’s long-arm statute, which the panel’s original opinion summarized as follows:
Section 13-423(a)(4) authorizes the “exercise [of] personal jurisdiction over a person” who has “caus[ed] tortious injury in the District of Columbia by an act or omission outside the District of Columbia.” Any such party over whom personal jurisdiction is sought must have satisfied one of three “plus factors” within the District. See Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). These factors are “ regularly do[ing] or solicit[ing] business,  engag[ing] in any other persistent course of conduct, or  deriv[ing] substantial revenue from goods used or consumed, or services rendered.” D.C. CODE § 13-423(a)(4). However, “entr[ies] into the District ... by nonresidents for the purpose of contacting federal governmental agencies [or instrumentalities]” do not factor into the jurisdictional calculus. Env't Rsch. Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 813 (D.C. 1976) (en banc) (explaining the “government contacts exception”).
Here are the certified questions:
1. May nonresident aliens who are citizens only of foreign countries invoke the government contacts exception?
2. If the first question is answered in the affirmative, must those nonresident aliens possess cognizable rights pursuant to the First Amendment generally, or any specific clause thereunder, in order to invoke the exception?
3. Does the government contacts exception extend to efforts to influence federal policy other than direct contacts with agents, members, or instrumentalities of the federal government?
4. If the third question is answered in the affirmative, what standard governs in determining whether activities not involving direct contacts with the federal government are covered under the exception?
Wednesday, April 14, 2021
Below are the details for Unpacking Iqbal, which will be co-hosted by the Chicago-Kent MLSA with the MLSA at UIUC and Georgetown:
When: Apr 15 (Thu), 6:00 PM - 7:15 PM CDT
Where: Zoom, register here: https://lu.ma/qgugl5o3
Ashcroft v. Iqbal is known as the seminal case that every 1L agonizes over because it transformed the pleading standard starting in 2008. But this case goes beyond pleading standards. It is intertwined with questions surrounding qualified immunity, Xenophobia, Islamophobia and carries a holding that eerily resembles a rationale for blatant racism and discrimination. We have invited panel speakers Professor Alexander Reinert (who argued the case in front of the Supreme Court) and Professor Shirin Sinnar to discuss the impact that Iqbal has had on the entire American litigation system for ethnic and racial minorities.
H/T: Greg Reilly
Tuesday, April 13, 2021
Last week the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Circuitronix, LLC v. Shenzen Kinwong Electronic Co., which addresses (among other things) FRCP 6(a)(3)’s provision for extending a filing deadline when “the clerk’s office is inaccessible . . . on the last day for filing.”
In that case, the district court’s chief judge “had designated July 5 as a holiday such that ‘the Court will be closed.’” The Eleventh Circuit rejected the argument that “the clerk’s office remained accessible on July 5 because Kinwong could have filed its motion electronically.” Noting that “Rule 6 refers to the clerk’s physical office,” it held that “[t]he clerk’s office is inaccessible when its building is officially closed or otherwise unavailable, even if the parties are still able to submit filings electronically.”
H/T: C.E. Petit
Friday, April 9, 2021
This week’s Supreme Court decision in Google LLC v. Oracle America, Inc. is mostly about copyright law. But there was a very interesting procedural question in the case regarding what standard of review the Court should use in connection with the jury’s verdict in favor of Google on its fair use defense. The answer is: it’s complicated. Justice Breyer’s majority opinion does say that “the ultimate ‘fair use’ question” is subject to de novo review. But he also states that “subsidiary factual questions” must be reviewed deferentially—and that deference ends up playing a very important role in the Court’s decision.
In this post I want to make two quick points about how the Court handles the standard of review issue. First, as I’ve argued in a recent article, I don’t think that Rule 50 of the Federal Rules of Civil Procedure, which provides that a court may displace a jury’s verdict only when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” allows a court to declare that a certain issue (like fair use) is categorically subject to de novo review. But second, Justice Breyer’s deference to the jury on implicitly-found “subsidiary” facts leads to an analysis of fair use that—at the end of the day—isn’t so different from the sort of deferential review Rule 50 would require.
Thursday, April 8, 2021
Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, Should the Rules Committees be Remade? Suja reviews Brooke Coleman’s recent article, #SoWhiteMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020).
Tuesday, April 6, 2021
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.” Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test. The question presented is:
May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?
Stetson Law Review Virtual Symposium: "Civil Procedure Transformation After Fifteen Years of the Roberts Court" (April 9, 2021)
Here is the announcement and registration details:
Stetson Law Review is pleased to announce its Spring 2021 Virtual Symposium: Civil Procedure Transformation After Fifteen Years of the Roberts Court. The Symposium will be held virtually on Friday, April 9 from 1-4:30 p.m. Panels will discuss the Roberts Court’s transformative influence on personal jurisdiction doctrine, court access and choice, as well as the adjudication process. More information on the panels and panelists can be found at https://www2.stetson.edu/law-review/symposia/.
Monday, April 5, 2021
Today the Supreme Court issued its decision in Google LLC v. Oracle America, Inc. By a 6-2 vote, it holds that Google’s copying of a portion of a computer program owned by Oracle constituted “fair use” for purposes of federal copyright law. The opinion is focused mostly on substantive copyright law, but—as covered earlier here and here—the posture of the case prompted some interesting procedural questions. The jury had ruled in favor of Google on its fair use defense, and the Supreme Court asked the parties to file supplemental letter briefs addressing “the appropriate standard of review” regarding fair use, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
Monday, March 29, 2021
Tomorrow morning, the Supreme Court will hear oral argument (by telephone conference) in TransUnion LLC v. Ramirez, covered earlier here. It’s a very interesting and important case raising questions of both Article III standing and class certification under FRCP 23.
I was pleased to be involved in a legal scholars’ amicus brief supporting the respondent that addresses the Article III issue in the case. Thanks to a very distinguished group of signatories and some terrific attorneys at Keller Lenkner LLC for making it happen.
If folks want to follow along with the argument tomorrow, here is the Court’s press release about access to the live audio feed.
Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
Friday, March 26, 2021
Now on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, AI & the End of Lawyers… Defeating Class Certification. Jasminka reviews Peter Salib’s recent article, Artificially Intelligent Class Actions, Tex. L. Rev. (forthcoming).
Thursday, March 25, 2021
Today the Supreme Court issued its decision in Ford Motor Co. v. Montana Eighth Judicial District Court (which is consolidated with a case from Minnesota, Ford Motor Co. v. Bandemer). The Court unanimously upholds personal jurisdiction over Ford in both cases. Justice Kagan writes the majority opinion, joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh. Justice Alito writes a separate concurring opinion, and Justice Gorsuch writes a separate concurring opinion that is joined by Justice Thomas. (Justice Barrett did not participate.)
More coverage to come, but here’s a very quick recap. Justice Kagan’s majority opinion begins:
In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products-liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit. (emphasis added)
Justice Kagan explains that these cases are proper exercises of specific jurisdiction, and she provides a helpful summary of what specific jurisdiction requires:
The plaintiff’s claims, we have often stated, “must arise out of or relate to the defendant’s contacts” with the forum. Bristol-Myers, 582 U. S., at ___ (slip op., at 5) (quoting Daimler, 571 U. S., at 127; alterations omitted); see, e.g., Burger King, 471 U. S., at 472; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414 (1984); International Shoe, 326 U. S., at 319. Or put just a bit differently, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Bristol-Myers, 582 U. S., at ___−___, ___ (slip op., at 5−6, 7) (quoting Goodyear, 564 U. S., at 919).
In applying this test, Justice Kagan rejects the “causation-only approach” put forward by Ford, which would have “locat[ed] specific jurisdiction in the State where Ford sold the car in question, or else the States where Ford designed and manufactured the vehicle.” She notes that in the World-Wide Volkswagen case, “this Court has stated that specific jurisdiction attaches in cases identical to the ones here—when a company like Ford serves a market for a product in the forum State and the product malfunctions there.”
In the final part of the opinion (II-C), Justice Kagan distinguishes the Supreme Court’s recent decisions rejecting personal jurisdiction in Bristol-Myers and Walden. As she explains: “We found jurisdiction improper in Bristol-Myers because the forum State, and the defendant’s activities there, lacked any connection to the plaintiffs’ claims.” And Walden “had no occasion to address the necessary connection between a defendant’s in-state activity and the plaintiff’s claims” because the defendant had no contacts with the forum state to begin with.
On to the concurring opinions...
Justice Alito agrees that the result in Ford “is settled by our case law” but he expresses a “quibble” with what he calls the “new gloss that the Court puts on our case law.” He writes that the majority “recognizes a new category of cases in which personal jurisdiction is permitted: those in which the claims do not ‘arise out of ‘ (i.e., are not caused by) the defendant’s contacts but nevertheless sufficiently ‘relate to’ those contacts in some undefined way, ante, at 8–9.” He also states that “for the reasons outlined in Justice Gorsuch’s thoughtful opinion, there are grounds for questioning the standard that the Court adopted in International Shoe Co. v. Washington, 326 U. S. 310 (1945)” and that “there are also reasons to wonder whether the case law we have developed since that time is well suited for the way in which business is now conducted.”
Justice Gorsuch’s concurring opinion (joined by Justice Thomas) also takes issue with the majority’s recognition that specific jurisdiction is appropriate when a lawsuit “relates to” the defendant’s activities in the forum. In the second part of the opinion, however, he challenges “the old International Shoe dichotomy” between specific and general jurisdiction, noting “it’s hard not to ask how we got here and where we might be headed.” Justice Gorsuch posits that “the right question” is “what the Constitution as originally understood requires, not what nine judges consider ‘fair’ and ‘just.’” And after surveying pre-International Shoe practice, Justice Gorsuch indicates that the current approach to personal jurisdiction gives corporations “special jurisdictional protections in the name of the Constitution.” In particular:
Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can be found. Burnham, 495 U. S., at 610–611.
Ultimately, Justice Gorsuch agrees that personal jurisdiction is proper in the Ford cases: “The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. . . . The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start.”
Wednesday, March 24, 2021
Emory & Oxford Zoom Series: "Quo Vadis civil justice? Filling the gaps in civil justice in the U.S. and Europe" (March 26, April 30, May 28)
Here is the announcement (H/T Rich Freer):
Emory University School of Law and The University of Oxford’s Center for Socio-Legal Studies Swiss Re Programme for Civil Justice Systems are hosting a three-part Zoom event titled, Quo Vadis civil justice? Filling the gaps in civil justice in the U.S. and Europe. The first event is this Friday, March 26, from 9:00 a.m. to 12:00 noon Eastern Daylight Time. The others will follow, respectively, in April and May. The link to register for Friday’s event is below.
The ‘Filling the Gaps’ series will gather lawmakers, policymakers, scholars, business representatives and legal practitioners who will offer insights into the seismic shift the contemporary civil justice systems in Europe and the U.S. are experiencing. They will reflect on the search for just, efficient, and effective civil justice mechanisms, trace the trajectories of reforms, assess the reasons for differences in trajectories, and attempt to answer the perennial question: can we learn from one another?
Panel 1: Current Trends in Civil Litigation
March 26, 2021 9:00 a.m. – 12:00 noon (EDT)
The panel discussion explores developments in civil litigation. The recent trends in civil litigation in the U.S. have been the subject of some concern in academia and legal practice. The civil process and courthouses are affected by the growing pressures towards better case management and the omnipresent goal of efficiency. Some key elements of the ‘American procedural exceptionalism’ lost a great deal of their potency. European civil justice policy, while also under pressure from the efficiency advocates, continues to focus on encouraging more litigation. Reforms across Europe reflect movements towards some elements of the American-style (or common law-style) litigation. European lawmakers are looking into, or have already established, new mechanisms encouraging litigation, both on an individual and collective basis.
Mary Anne Bobinski (Dean of Emory School of Law)
Christopher Hodges (University of Oxford)
Magdalena Tulibacka (Emory Law)
Sean Farhang (Berkeley Law, University of California)
Richard Freer (Emory Law)
Xandra Kramer (Erasmus School of Law, Rotterrdam)
Malgorzata Posnow-Wurm (European Commission)
John Sorabji (University College London Faculty of Law)
Stefaan Voet (Katholieke Universiteit Leuven)
To register, please click here.
Tuesday, March 23, 2021
The final version of my article, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1, is now posted. It tackles the question of what standard of review appellate courts should use for findings made by civil juries. There’s a fair amount of confusion on this issue, because some appellate courts have conflated it with the framework for choosing the standard of appellate review for rulings by lower court judges. (The confusion is not helped by the extent to which the often elusive distinction between “law” and “fact” plays a role.)
This is also an issue that the Supreme Court is considering right now in Google LLC v. Oracle America, Inc., a $9 billion lawsuit about Google’s use of Java programming code to develop its Android operating system. SCOTUS issued a specific order asking the parties to brief the appropriate standard of review for the jury’s verdict in favor of Google on its fair use defense. The Google case was argued at the beginning of this Term but is still awaiting a decision—here are some of my thoughts on the case from back in October after the oral argument: SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts.
I enjoyed working on this piece, and I hope folks find it helpful. Special thanks to the great editors at the Wisconsin Law Review, who did a fantastic and timely job getting the article finalized—maybe even in time for SCOTUS to read it! Here’s the full 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, one that has led to confusion surrounding 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.
Monday, March 22, 2021
Whether 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, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.
Monday, March 15, 2021
Emory Law School’s Center on Federalism and Intersystemic Governance is hosting a conference on federal diversity jurisdiction this Friday, March 19 (11:20am – 5:40pm Eastern Time).
Here’s the link to register: https://emorylaw.wufoo.com/forms/conference-on-federal-diversity-jurisdiction/
(H/T: Jonathan Nash)
Thursday, March 11, 2021
Private Enforcement & Environmental Law: Civil Society Organizations, Public Interests, and Accountability (Online Workshop, Friday 3/12/2021)
Cornell University’s Department of Natural Resources and Environment and the University of Chicago Law School are hosting an online workshop tomorrow (Friday 3/12, 8:15 am – 2:45 pm EST), Private Enforcement & Environmental Law: Civil Society Organizations, Public Interests, and Accountability.
Here’s the registration link: https://cornell.zoom.us/webinar/register/WN_5bIbkK03QyCy2u_mZge5yQ
More details on this flyer:
(H/T: Zach Clopton)
Tuesday, March 9, 2021
Ann Woolhandler and Julia Mahoney have posted on SSRN a draft of their article, Federal Courts and Takings Litigation. Here’s the abstract:
Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court.
While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.
Monday, March 8, 2021
Today the Supreme Court issued an 8-1 decision in Uzuegbunam v. Preczewski, which addresses whether claims for nominal damages can satisfy Article III’s redressibility requirement. They can.
Here are some highlights from Part III of Justice Thomas’s majority opinion:
Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right. . . .
This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action, Planck v. Anderson, 5 T. R. 37, 41, 101 Eng. Rep. 21, 23 (K. B. 1792) (“if no [actual] damage be sustained, the creditor has no cause of action” for some claims); and meet all other relevant requirements. We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right.
Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” Webb, 29 F. Cas., at 509, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.
Chief Justice Roberts dissents, arguing that Article III is not satisfied because “an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to.” Even under the majority’s view, however, Roberts contends that “[w]here a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.” And he further asserts that such a defendant might invoke FRCP 68 and thereby “render the plaintiff liable for any subsequent costs if he receives only nominal damages.”
Justice Kavanaugh joins the majority opinion, but he writes a one-paragraph concurring opinion endorsing the view—which was also urged by the Solicitor General in this case—that a defendant “should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
Sunday, March 7, 2021
Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, Conflict Scholarship in Partisan Times. Roger reviews Symeon Symeonides’ Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. (forthcoming 2021).