Friday, September 16, 2022
This week on the Courts Law section of JOTWELL is Maureen Carroll’s essay, Non-Lawyer Judges in Devalued Courts. Maureen reviews Sara Sternberg Greene & Kristen Renberg’s recent essay, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022).
Friday, August 12, 2022
Call for Papers: 12th Annual Junior Faculty Federal Courts Workshop (University of Florida, Dec. 1-2, 2022)
Here is the announcement:
The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.
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 Thursday, December 1, and conclude by early afternoon on Friday, December 2. 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 at the University of Florida Levin College of Law, which is within 15 minutes of the Gainesville Regional Airport and less than two hours from the Jacksonville International Airport and the Orlando International Airport. The College of Law will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at the Hotel Eleo at the University of Florida. Those wishing to present a paper must submit an abstract of no more than two pages to firstname.lastname@example.org by Monday, September 12, 2022. Papers will be selected by a committee of past participants, and presenters will be notified by no later than October 3, 2022.
Wednesday, August 10, 2022
Here’s an announcement from LSU’s Paul M. Hebert Law Center, which is hiring in civil procedure:
LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in a variety of areas, including, but not limited to, faculty who have expertise in business law, civil & comparative law, civil procedure, constitutional law, contracts, criminal law and procedure, evidence, family law, professional responsibility, and property. Applicants should have a J.D. from an ABA-accredited law school (foreign equivalencies will also be considered), superior academic credentials, and a demonstrable commitment to the production of quality scholarship, as well as a commitment to outstanding teaching.
Louisiana State University is an R1 land, sea, and space-grant university with a footprint across the state of Louisiana. It is one of only eight universities in the nation with a law school, dental school, medical school, veterinary school, and an elite MBA program. The LSU Law Center, the flagship state law school of Louisiana, is part of LSU A&M’s campus, located in the state capital, Baton Rouge. See more about LSU, including links to the area, at https://lsu.edu/visit/index.php.
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.
Please note that applicants must apply through the LSU Career Opportunities website. Only those persons who apply online will be considered for employment. Please apply using the following link: (https://lsu.wd1.myworkdayjobs.com/LSU/job/0400-Hebert-Law-Center/Assistant-Professor-of-Law-Associate-Professor-of-Law-Professor-of-Law_R00069560). Applications should include a letter of interest, resume including a list of three references, research agenda, and, if available, teaching evaluations.
Questions may be directed by email to Ms. Pamela Hancock, the LSU Law Center’s Coordinator of Administration, who assists the Faculty Appointments Committee (email@example.com).
Wednesday, August 3, 2022
The University of Alabama School of Law is hiring--including for a position in Civil Procedure. Here is the announcement:
The University of Alabama School of Law seeks to fill up to two tenured/tenure-track positions for the 2023-24 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Environmental Law (including Regulatory Compliance) and Civil Procedure (with the possibility of also teaching Evidence); however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.
Candidates interested in the Assistant/Associate Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50441
Candidates interested in the Associate/Full Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50535
Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Heather Elliott, Chair of the Faculty Appointments Committee (firstname.lastname@example.org).
Come join us!
Tuesday, August 2, 2022
AALS Federal Courts Section - Call for Nominations: Best Untenured Article on Federal Jurisdiction (Deadline 9/15/2022)
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 2023 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, 2022 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2022), 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. Diego Zambrano at Stanford Law School (email@example.com).
Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2022. Nominations will be reviewed by a prize committee comprised of Professors Merritt McAlister (University of Florida Levin College of Law), Richard Re (University of Virginia), Mila Sohoni (University of San Diego School of Law), Steve Vladeck (University of Texas), and Diego Zambrano (Stanford) with the result announced at the Federal Courts section program at the 2023 AALS Annual Meeting.
Monday, August 1, 2022
The latest piece on the Courts Law section of JOTWELL is Howard Wasserman’s essay, Catching and Killing it in Federal Court. Howard reviews Zach Clopton’s recent article, Catch and Kill Jurisdiction, Mich. L. Rev. (forthcoming 2022).
Tuesday, June 21, 2022
Today the Supreme Court issued a 5-4 decision in Shoop v. Twyford. Chief Justice Roberts authors the majority opinion, joined by Justices Thomas, Alito, Kavanaugh, and Barrett. The case involves Twyford’s request to be transported to a hospital for medical testing that he argued could support his claim for habeas relief. The district court granted Twyford’s request under the All Writs Act.
The Supreme Court reverses the transportation order, noting the many obstacles that AEDPA imposes on individuals seeking to present new evidence in support of a habeas petition. Chief Justice Roberts writes that a court must consider AEDPA’s limits “even when the All Writs Act is the asserted vehicle for gathering new evidence,” because “a petitioner cannot use that Act to circumvent statutory requirements or otherwise binding procedural rules.” The district court should not have granted Twyford’s request for transportation because he “sheds no light on how he might persuade a court to consider the results of his testing, given the limitations AEDPA imposes on presenting new evidence.”
The four dissenting justices do not address the substance of Twyford’s transportation request. Rather, the core disagreement is over appellate jurisdiction. In a lengthy footnote, Chief Justice Roberts concludes that appellate jurisdiction is proper under the collateral order doctrine, citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949): “Transportation orders issued under the All Writs Act (1) conclusively require transportation; (2) resolve an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claims, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144–145 (1993); and (3) are entirely unreviewable by the time the case has gone to final judgment.”
Justice Breyer’s dissenting opinion, joined by Justices Sotomayor and Kagan, argues that the collateral order doctrine does not apply, reasoning that the transportation order was “analogous to a discovery order” and that there was “no reason why such an order ordinarily should be of greater importance than a discovery order of some other kind.” Justice Gorsuch writes in his dissenting opinion: “I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen.”
Monday, June 20, 2022
Last week the Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana, another case on the Federal Arbitration Act (FAA). Justice Alito authored the majority opinion, which was joined in full by Justices Breyer, Sotomayor, Kagan, and Gorsuch (and in parts by Chief Justice Roberts and Justices Kavanaugh and Barrett). The question presented by the case is whether the FAA preempts a rule of California state law—from the California Supreme Court’s 2014 decision in Iskanian v. CLS Transportation—that invalidates contractual waivers of the right to assert representative claims under California’s Labor Code Private Attorneys General Act of 2004 (PAGA). The answer is—it’s complicated.
The Court notes an important distinction under the PAGA between “individual” claims, “which are premised on Labor Code violations actually sustained by the plaintiff,” and “non-individual claims,” which “aris[e] out of events involving other employees.” Here’s Justice Alito’s conclusion, from Part IV of the opinion:
We hold that the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate. This holding compels reversal in this case. The agreement between Viking and Moriana purported to waive “representative” PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any “portion” of the waiver that remains valid must still be “enforced in arbitration.” Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana’s individual PAGA claim. The lower courts refused to do so based on the rule that PAGA actions cannot be divided into individual and non-individual claims. Under our holding, that rule is preempted, so Viking is entitled to compel arbitration of Moriana’s individual claim.
The remaining question is what the lower courts should have done with Moriana’s non-individual claims. Under our holding in this case, those claims may not be dismissed simply because they are “representative.” Iskanian’s rule remains valid to that extent. But as we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. See Cal. Lab. Code Ann. §§ 2699(a), (c). When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit. * * * As a result, Moriana lacks statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims.
Justice Sotomayor authored a concurring opinion emphasizing that California courts—and ultimately the California legislature—“will have the last word” regarding whether someone in Moriana’s situation does lack statutory standing to pursue non-individual PAGA claims.
Justice Barrett authored an opinion concurring in part, joined by Justice Kavanaugh and in part by Chief Justice Roberts, arguing that “[t]he discussion in Parts II and IV of the Court’s opinion is unnecessary to the result, and much of it addresses disputed state-law questions as well as arguments not pressed or passed upon in this case.”
Justice Thomas dissented, writing: “I continue to adhere to the view that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., does not apply to proceedings in state courts.”
Tuesday, June 14, 2022
As we head down the home stretch for this Term’s Supreme Court decisions, here are some of the interesting decisions that came down earlier this month:
Egbert v. Boule: Justice Thomas’s majority opinion (joined by Roberts, Alito, Kavanaugh, and Barrett) holds that Bivens cannot be extended to allow a cause of action for the plaintiff’s Fourth Amendment excessive-force claim and First Amendment retaliation claim against a U.S. Border Patrol Agent. Justice Gorsuch authors a concurring opinion. And Justice Sotomayor authors an opinion (joined by Breyer and Kagan) partially concurring in the judgment and partially dissenting; they argue that a Bivens action should exist for the plaintiff’s Fourth Amendment claim, but they agree with the majority’s ultimate conclusion that the First Amendment retaliation claim may not proceed under Bivens.
Garland v. Gonzalez: Justice Alito’s majority opinion (joined by Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett) holds that 8 U.S.C. §1252(f)(1), a provision of the Immigration and Nationality Act (INA), deprives federal district courts of jurisdiction to consider the plaintiffs requests for classwide injunctive relief. Justice Sotomayor authors an opinion (joined in full by Kagan and in part by Breyer) partially concurring in the judgment and partially dissenting, arguing that the INA preserves the district courts’ authority to issue classwide injunctions against the Executive Branch.
Kemp v. United States: Justice Thomas’s majority opinion (joined by Roberts, Breyer, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett) holds that a judge’s error of law qualifies as a “mistake” under Federal Rule of Civil Procedure 60(b)(1); thus a motion for relief from judgment based on such an error is subject to Rule 60(c)(1)’s one-year deadline for 60(b)(1) motions. Justice Sotomayor authors a concurring opinion emphasizing that Rule 60(b)(6)—which is not subject to the one-year deadline—may remain available “to reopen a judgment in extraordinary circumstances, including a change in controlling law.” Justice Gorsuch authors a solo dissent, arguing that the Court should have dismissed the writ of certiorari as improvidently granted.
Southwest Airlines Co. v. Saxon: Justice Thomas’s unanimous opinion holds that the Federal Arbitration Act (FAA) does not apply to a ramp supervisor for Southwest Airlines whose work “frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country,” because she fit within the FAA’s exemption for “workers engaged in foreign or interstate commerce.” Justice Barrett did not participate in the case.
ZF Automotive U.S., Inc. v. Luxshare, Ltd.: Justice Barrett’s unanimous opinion holds that 28 U.S.C. § 1782—which allows federal district courts to order discovery “for use in a proceeding in a foreign or international tribunal” does not apply to private arbitration proceedings; the statute covers only “governmental or intergovernmental adjudicative bodies.”
Friday, June 3, 2022
Here is the announcement:
The Center for Litigation and Courts and Huntington National Bank are excited to announce a call for abstracts for the upcoming Complex Litigation Ethics Conference to be held on the UC Hastings Law campus on Saturday, Oct. 22, 2022.
A substantial percentage of all cases filed in federal court are MDL cases, many of them involving proposed class actions. Meanwhile, district courts struggle with case management, settlement, and post-settlement administration of these complex cases. Yet scant scholarly attention has been paid to how courts adapt ethical rules and norms to complex litigation. This full-day conference will explore such issues as:
1. Adapting Ethics to Complex Litigation in General;
2. Ethics in Funding Complex Litigation;
3. Diversity, Equity, and Inclusivity in Complex Litigation; and
4. Ethics in Communicating with Absent Class Members.
Symposium papers will be published in a 2023 issue of the Hastings Law Journal. Confirmed speakers include federal judges, professors, and practicing attorneys, including Eric L. Cramer (Chair, Berger Montague PC), Maya Steinitz (Professor, University of Iowa) and W. Bradley Wendel (Professor, Cornell Law School). Additional speakers will be selected in part through this call for abstracts. For presenters not at for-profit legal practices, reasonable travel expenses and up to two nights’ lodging will be provided, in addition to meals. Presenters will be expected to circulate a polished draft paper by October 12. Final papers of around 8,000 words must be submitted to the Hastings Law Journal by December 31.
Abstracts of no more than 500 words should be submitted by email to Professor Joshua P. Davis at firstname.lastname@example.org, with the subject heading “Abstract Submission – Complex Litigation Ethics Conference,” by June 30 (or contact Joshua P. Davis to discuss timing). Selections will be made in the first week of July and then on an ongoing basis.
Any questions should be submitted to Professor Davis at the email above.
Tuesday, May 24, 2022
Yesterday the Supreme Court issued a unanimous decision in Morgan v. Sundance, Inc. (covered earlier here). At issue is whether the defendant waived its right to insist on arbitration by engaging in litigation before seeking a stay under section 3 of the Federal Arbitration Act (FAA). Justice Kagan’s opinion rejects the view—expressed by many federal appellate courts—that “[a] party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.” She notes that a “special rule” requiring prejudice is not supported by the FAA’s ostensible “policy favoring arbitration.”
Here’s an excerpt, which also highlights a number of issues that the Court’s decision does not resolve:
We decide today a single issue, responsive to the predominant analysis in the Courts of Appeals, rather than to all the arguments the parties have raised. In their briefing, the parties have disagreed about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate. The parties have also quarreled about whether to understand that inquiry as involving rules of waiver, forfeiture, estoppel, laches, or procedural timeliness. We do not address those issues. The Courts of Appeals, including the Eighth Circuit, have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. For today, we assume without deciding they are right to do so. We consider only the next step in their reasoning: that they may create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). They cannot. For that reason, the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice.
Monday, May 16, 2022
SCOTUS Cert Grant on District Court Jurisdiction over Challenges to SEC Enforcement Proceedings: SEC v. Cochran
Whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.
Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h). 28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”
The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.
Friday, May 13, 2022
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Data-Driven Procedural Inequality. Brooke reviews Danya Reda’s recent article, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. (forthcoming 2023).
Thursday, May 5, 2022
Last year, the Alabama Law Review hosted a virtual symposium entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The symposium issue is now posted:
Maggie Gardner, Pamela K. Bookman, Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave, The False Promise of General Jurisdiction, 73 Ala. L. Rev. 455 (2022).
Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483 (2022).
Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539 (2022).
Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583 (2022).
A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Advisory Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607 (2022).
Gregory C. Cook & Andrew Ross D’Entremont, No End in Sight? Navigating the “Vast Terrain” of Personal Jurisdiction in Social Media Cases After Ford, 73 Ala. L. Rev. 621 (2022).
David G. Wirtes, Jr. & Christy Ward Rue, Combating Weaponized Challenges to Personal Jurisdiction, 73 Ala. L. Rev. 661 (2022).
Thanks to everyone who participated! Very excited to see the contributions in print.
Tuesday, May 3, 2022
The Nevada Law Journal is inviting submissions for its Volume 23 symposium: "Dark Necessities? The Supreme Court's Shadow Docket." This issue seeks to explain the shadow docket's past and present use as well as its substantive effects on particular areas of law. Proposals are due May 16, 2022; articles will be due by August 15, 2022.
Monday, May 2, 2022
The Supreme Court has adopted amendments to the Federal Rules of Civil Procedure, as well as amendments to the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Criminal Procedure, and transmitted them to Congress.
The FRCP amendments include amendments to Rule 7.1 and a new set of Supplemental Rules for Social Security Review Actions Under 42 U.S.C. § 405(g). The Rule 7.1 amendments, among other things, create a new disclosure requirement to facilitate early determinations of whether diversity jurisdiction exists. The new supplemental rules for § 405(g) actions establish a uniform procedure for such actions.
Unless Congress intervenes, these amendments will take effect on December 1, 2022.
You can find the full transmittal package, including redlines and advisory committee notes, here.
Monday, April 25, 2022
“Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1038 (2021) (Gorsuch J., concurring). This petition seeks resolution of an issue that has divided courts around the country. More than a dozen state supreme courts and every federal court of appeals have weighed in on the question with conflicting results.
An unbroken line of this Court’s cases holds that a court may exercise personal jurisdiction with a party’s consent. Corporations enforce that precedent to the letter in their contracts of adhesion, requiring flesh and blood consumers to litigate disputes with businesses in often-distant tribunals. E.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). Turnabout should be fair play (and is, incidentally, consistent with substantial justice). Consistent with that rule, states have enacted laws requiring corporations operating within their boundaries to consent to personal jurisdiction when they register to do business in those states. The Pennsylvania Supreme Court found such a statute unconstitutional under this Court’s decision in International Shoe v. Washington, 326 U.S. 310 (1945), and its progeny. That erroneous result is but the latest decision among dozens that are squarely divided on the question presented:
Whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
Friday, April 22, 2022
Yesterday’s busy Supreme Court opinion day featured a number of interesting decisions:
- In Boechler v. Commissioner, the Court once again weighed in on whether a litigation-related deadline is jurisdictional and, if not, whether it is subject to equitable tolling. The case involves 26 U.S.C. § 6330(d)(1)’s 30-day deadline for petitioning the Tax Court to review certain determinations by the Internal Revenue Service. Writing for a unanimous Court, Justice Barrett concludes that it “is an ordinary, nonjurisdictional deadline subject to equitable tolling.”
- Brown v. Davenport involves the relationship between the deferential standard of review in the AEDPA [28 U.S.C. § 2254(d)(1)] and the requirement that any state court error cause sufficient prejudice to the defendant under Brecht v. Abrahamson, 507 U.S. 619 (1993). Writing for a six-justice majority, Justice Gorsuch concludes that “a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.” Justice Kagan authors a dissenting opinion, joined by Justices Breyer and Sotomayor, calling the majority’s approach “pointless” because “the Brecht standard ‘obviously subsumes’ the ‘more liberal’ AEDPA one: If a defendant meets the former, he will ‘necessarily’ meet the latter too.” The opinions also include a robust exchange regarding the history of habeas corpus that is well worth a read.
- And in Cassirer v. Thyssen-Bornemisza Collection Foundation, the Court considered what choice-of-law rule governs claims against a foreign state or instrumentality under the Foreign Sovereign Immunities Act. Justice Kagan’s opinion for a unanimous Court holds that courts should apply “whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party.” In a property-law dispute (this case was a suit to recover expropriated property), that means using “the forum State’s choice-of-law rule, not a rule deriving from federal common law.”