Tuesday, January 31, 2012

Tidmarsh on Resnik on Concepcion, Wal-Mart, Turner v. Rogers

Now available on the Courts Law section of JOTWELL is an essay by Prof. Jay Tidmarsh (Notre Dame) entitled Access to Courts and the Democratic Order. It reviews a recent article by Prof. Judith Resnik (Yale), Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011), covered earlier here.


January 31, 2012 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, January 26, 2012

Second Circuit Issues Opinion in Chevron-Ecuador Litigation

Today the Second Circuit issued its much-anticipated opinion in the Chevron-Ecuador litigation. The opinion in Chevron v. Naranjo explains the Second Circuit’s earlier order (2011 WL 4375022), which had reversed a district court injunction (768 F.Supp.2d 581) that would have blocked the enforcement of an Ecuadorean court’s multi-billion dollar judgment against Chevron.

Allison Frankel has coverage of the opinion at Thomson Reuters News & Insight.


January 26, 2012 in Recent Decisions | Permalink | Comments (0)

Baude on The Jurisdiction and Venue Clarification Act

William Baude’s critical view of portions of the new law appears in “First Impressions” of the Michigan Law Review here.


January 26, 2012 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Fifth Circuit Reverses District Court’s Denial of Motion to Intervene in Case Involving Red Light Camera System

In City of Houston v. American Traffic Solutions, Inc., available here, Houston had passed an ordinance approving the use of red light cameras, and contracted with ATS to run the system, thus generating millions in fees for both of them.  Francis and Randall Kubosh then organized a petition drive, spending over $200,000 of their personal funds, to force Houston to cease using this system. The requisite signatures were obtained, and the issue was placed on the ballot, and the voters repudiated the system (over Houston’s vigorous opposition). Houston then terminated ATS’ contract and sued it in federal court, seeking a declaration of rights between ATS and itself over the contract’s status. ATS counterclaimed, alleging that the election was invalid, ultra vires, and unconstitutional. By mutual agreement of Houston and ATS, the district court ordered that the red light cameras were not to be removed from city intersections during the litigation. 

The Kuboshes moved to intervene as of right under Rule 24(a)(2).  The district court denied the motion, and the Fifth Circuit reversed.  After first holding that denial of intervention of right is a final order for purposes of appeal, the court stated: 

These intervenors are unique because they engineered the drive that led to a city charter amendment over the nearly unanimous, well funded, and longstanding opposition of the Mayor and City Council. They have demonstrated a particular interest in cementing their electoral victory and defending the charter amendment itself. If the amendment is overturned, their money and time will have been spent in vain. Finally, they have raised substantial doubts about the City's motives and conduct in its defense of the litigation with ATS. Without these intervenors’ participation, the City might well be inclined to settle the litigation on terms that preserve the adverse ruling on the charter amendment and thus preserve its flexibility to reinstate red light cameras in the future. This is no matter of simply defending City policy of one sort or another: it involves millions of dollars of revenue to City coffers during a period of considerable economic uncertainty. The district court erred in declaring that the Kuboshes had to prove a “meaningful probability [of inadequate representation] derived from actual facts.” Under the totality of circumstances here, including the haste of the litigation, the City’s pecuniary motives, the extended opposition to the charter amendment, the agreed order to leave the cameras in place, . . .it is sufficient to conclude that the intervenors’ interests “may be” inadequately represented. See Trbovich v. United Mine Workers, 404 U.S. 528.


January 26, 2012 in Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, January 24, 2012

Weidemaier on the Use of Precedent in Arbitration

Mark Weidemaier (University of North Carolina School of Law) has posted Judging Lite: How Arbitrators Create and Use Precedent to SSRN.

Common wisdom has it that arbitrators neither follow nor make precedent, with potentially dire consequences. These include the failure to enforce individual rights and the possibility that, over time, widespread use of arbitration will result in the decay or destruction of the law itself. Although difficult to test directly, this common wisdom can be explored indirectly by analyzing arbitrators’ citation practices. This article conducts such an analysis using a unique dataset of published arbitration awards from four US arbitration regimes: securities, labor, employment, and class action arbitration. It explores how arbitrators use precedent and where that precedent comes from, and it attempts a tentative comparison between the citation practices of judges and arbitrators.

Outside of securities and (to some extent) labor arbitration, the arbitrators in the sample routinely wrote lengthy awards that were substantially devoted to legal analysis and that made extensive use of precedent. The vast majority of cited precedent, moreover, came from published judicial opinions. Arbitrators did cite to past arbitration awards, but primarily to fill gaps in the law created by government actors. On the whole, the evidence provides little support for the view that arbitrators and judges engage in qualitatively different kinds of decision-making or opinion-writing.



January 24, 2012 in Recent Scholarship | Permalink | Comments (0)

Monday, January 23, 2012

SCOTUS Preemption Decision on FMIA

Justice Kagan authored a unanimous opinion for the Court in National Meat Association v. Harris, holding that the Federal Meat Inspection Act preempts a California state statute that regulated the ability of slaughterhouses to buy, sell, or receive a nonambulatory animal.

If you are interested in the details of the federal regulation, the California statute, and why there was a dispute, I highly suggest waiting until after lunch to read the opinion.  As usual, SCOTUSblog has further coverage.


January 23, 2012 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Florida Supreme Court Holds Farm Tractor is "Dangerous Instrumentality"

Justia reports the story here.


January 23, 2012 in Recent Decisions | Permalink | Comments (0)

Friday, January 20, 2012

January 2012 Issue of The Third Branch is Available

This issue, available here, contains the 2011 Year-End Report on the Federal Judiciary.  In introducing the report, Chief Justice Roberts writes, “Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address that issue . . .”   He briefly describes the Code of Conduct, financial disclosure obligations, gift regulations, and recusal, concluding “I have complete confidence in the capability of my colleagues to determine when recusal is warranted.”

“Workload of the Courts” shows an increase in district court filings (by 2%), but a decrease in filings in Bankruptcy Court, the Courts of Appeals (although civil appeals remained “fairly stable”), and the Supreme Court.

Further detail about district court filings in civil cases:

Civil filings in the U.S. district courts grew 2 percent to 289,252 cases. Fueling this growth was a 2 percent increase in federal question cases (i.e., actions under the Constitution, laws, or treaties of the United States in which the United States is not a party in the case), which resulted mainly from cases addressing civil rights, consumer credit, and intellectual property rights.

Cases filed with the United States as a party climbed 9 percent. Those with the United States as plaintiff increased in response to a surge in defaulted student loan cases. Cases with the United States as defendant rose largely because of growth in Social Security cases.


January 20, 2012 in Federal Courts | Permalink | Comments (0)

Wednesday, January 18, 2012

SCOTUS Decision in Mims v. Arrow Financial

Today the Supreme Court issued a unanimous decision in Mims v. Arrow Financial Services LLC (covered earlier here), which considers whether federal-question jurisdiction exists under 28 U. S. C. §1331 for claims brought against telemarketers under the Telephone Consumer Protection Act of 1991 (TCPA). The provision of the TCPA that created a private cause of action refers to actions that would be brought in state court. See 47 U. S. C. §227(b)(3) (“A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an ap­propriate court of that State . . . an action based on a violation of this subsection . . . .”).

In an opinion by Justice Ginsburg, the Supreme Court holds that federal-question jurisdiction is proper under §1331. From the opinion [Slip Op. at 2]:

The question presented is whether Congress’ provision for private actions to enforce the TCPA renders state courts the exclusive arbiters of such actions. We have long recognized that “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916). Beyond doubt, the TCPA is a federal law that both creates the claim Mims has brought and supplies the substantive rules that will govern the case. We find no convincing reason to read into the TCPA’s permissive grant of jurisdiction to state courts any barrier to the U. S. district courts’ exercise of the general federal-question jurisdiction they have possessed since 1875.

In particular, Justice Ginsburg notes [Slip Op. at 11]: “Title 47 U. S. C. §227(b)(3) does not state that a private plaintiff may bring an action under the TCPA ‘only’ in state court, or ‘exclusively’ in state court.”


January 18, 2012 in Federal Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Ninth Circuit Holds Issue Preclusion Bars Plaintiff’s Discrimination Suit After Administrative Proceedings

Justia reports the decision here.


January 18, 2012 in Recent Decisions | Permalink | Comments (0)

Tuesday, January 17, 2012

Registration for SEALS Annual Meeting Begins February 1

For those who despair of the AALS ever holding a conference at a destination resort, mark your calendars to register for the 2012 SEALS (Southeastern Association of Law Schools) annual meeting at the Ritz-Carlton in Amelia Island, Florida as soon as registration opens on February 1, 2012.  Hotel rooms at the conference rate typically sell out fast for the wildly popular SEALS conference.  This year, SEALS is requiring you to register for the conference first before you will be allowed to reserve a hotel room.

The SEALS annual meeting will be held July 29 through August 4, 2012.  The program is available here.  Among many other offerings, Professor Ted Eisenberg will once again hold a three-day Empirical Studies Workshop (which requires separate advance registration).  Another session that looks interesting is “Federal Courts and Passive-Aggressive Virtues,” which will examine “the idea of courts engaging in arguably passive-aggressive behavior.”  There is also a discussion group on “Pedagogical Choices and Challenges in Civil Procedure.”


January 17, 2012 in Conferences/Symposia | Permalink | Comments (0)

On Rehearing, Eleventh Circuit Still Denies Attorney’s Fees after Defendant Tenders Full Amount Claimed in FLSA Case

Back in July (here) I reported an Eleventh Circuit opinion refusing a plaintiff in an FLSA action attorneys’ fees when the defendant (after the filing of the FLSA complaint) simply tendered the full amount of unpaid overtime claimed (plus statutory liquidated damages) and moved to dismiss.  Upon the plaintiff’s petition for rehearing, the Eleventh Circuit withdrew its former opinion, but replaced it with one that is functionally identical.  Dionne v. Floormasters Enterprises, Inc., No. 09–15405 (11th Cir. Jan. 13, 2012).

The Eleventh Circuit has again upheld the district court’s denial of fees because “[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney's fees and costs.”

Despite its heavy reliance on the argument that there was no “judgment awarded to the plaintiff,” as seemingly required by the FLSA for a fees award, the court then added in an odd footnote:  “[Our ruling] should not be construed as authorizing the denial of attorney's fees, requested by an employee, solely because an employer tendered the full amount of back pay owing to an employee, prior to the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the claim.”


January 17, 2012 in Recent Decisions | Permalink | Comments (0)

Symposium at Southwestern Law School: Transnational Litigation and Civil Procedure (Los Angeles, Feb. 3, 2012)

On Friday, February 3, 2012, Southwestern Law School in Los Angeles, California and the Southwestern Journal of International Law is hosting a symposium titled Our Courts and the World: Transnational Litigation and Civil Procedure.   The symposium is co-sponsored by the American Society of International Law, the Junior International Law Scholars Association (JILSA), the Los Angeles County Bar Association -  International Law Section, and the State Bar of California - International Law Section.

This one-day symposium will bring together leading scholars from Canada and the United States to discuss the procedural issues that arise in transnational civil litigation cases. It will also assess how receptive courts are to transnational litigation and explore issues related to transnational class actions. The proceedings and papers from this symposium will be published in the Southwestern Journal of International Law.

WHAT: Southwestern Journal of International Law presents Our Courts and the World: Transnational Litigation and Civil Procedure

WHEN: Friday, February 3, 2012, 9:00 a.m. – 5:15 p.m.

WHERE: Southwestern Law School, Los Angeles, California

Panelists include (in alphabetical order):

  • Samuel P. Baumgartner, Professor of Law, University of Akron School of Law
  • Vaughan Black, Professor of Law, Dalhousie University Schulich School of Law
  • Gary B. Born, Partner, WilmerHale, Lecturer on Law, Harvard Law School
  • Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
  • Montré D. Carodine, Associate Professor of Law, University of Alabama School of Law
  • Donald Earl Childress III, Associate Professor of Law, Pepperdine University School of Law
  • Paul R. Dubinsky, Associate Professor of Law, Wayne State University Law School
  • Allan Ides, Christopher N. May Professor of Law, Loyola Law School, Los Angeles
  • Thomas Orin Main, Professor of Law, University of the Pacific, McGeorge School of Law
  • Erin O’Hara O’Connor, Professor of Law and Director of Graduate Studies, Law & Economics PhD Program, Vanderbilt Law School
  • Cassandra Burke Robertson, Associate Professor, Case Western Reserve University School of Law
  • Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
  • Linda Sandstrom Simard, Professor of Law, Suffolk University Law School
  • Adam N. Steinman, Professor of Law and Michael J. Zimmer Fellow, Seton Hall University School of Law
  • Janet Walker, Professor of Law, Osgoode Hall Law School      
  • Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law

Moderators include:

  • William E. Thomson, Partners, Gibson, Dunn & Crutcher LLP
  • James H. Broderick, Jr., Partner, Squire, Sanders & Dempsey LLP
  • Marcus S. Quintanilla, Counsel, O’Melveny & Myers LLP
  • Ray D. Weston Jr., Vice President and General Counsel, Taco Bell Corp.

Symposium Co-Chairs:

  • Austen Parrish, Professor of Law and Vice Dean, Southwestern Law School
  • Christopher A. Whytock, Acting Professor of Law and Political Science, University of California, Irvine


January 17, 2012 in Conferences/Symposia | Permalink | Comments (0)

Thursday, January 12, 2012

SCOTUS Decision in CompuCredit Corp.v. Greenwood

This week the Supreme Court issued its decision in CompuCredit Corp. v. Greenwood, covered earlier here. The issue, begins Justice Scalia’s majority opinion, is "whether the Credit Repair Organizations Act (CROA), 15 U. S. C. §1679 et seq., precludes enforce­ment of an arbitration agreement in a lawsuit alleging violations of that Act."

Answer: It does not. “Because the CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the [Federal Arbitration Act] re­quires the arbitration agreement to be enforced according to its terms.”

Justice Ginsburg is the lone dissenter. Justice Sotomayor authors a concurring opinion, joined by Justice Kagan, which begins:

Claims alleging the violation of a statute, such as the Credit Repair Organizations Act (Act), 15 U. S. C. §1679 et seq., are generally subject to valid arbitration agree­ments unless Congress evinces a contrary intent in the text, history, or purpose of the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26 (1991). I agree with the Court that Congress has not shown that intent here. But for the reasons stated by the dissent, I find this to be a much closer case than the majority opin­ion suggests.

For more coverage, check out this analysis at SCOTUSblog by Prof. Ronald Mann (Columbia).


January 12, 2012 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 11, 2012

SCOTUS Decision in Minneci v. Pollard: Bivens Actions Against Privately Operated Federal Prisons

Yesterday the Supreme Court issued an 8-1 decision in Minneci v. Pollard. The majority opinion by Justice Breyer begins:  

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcot­ics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [the Fourth Amendment] by a federal agent . . . gives rise to a cause of action for damages” against a Federal Govern­ment employee). Because we believe that in the circum­stances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensationwe cannot do so.

Justice Scalia authored a short concurring opinion that was joined by Justice Thomas; Justice Ginsburg authored a short dissent. The Scalia and Ginsburg opinions essentially restate their respective positions from Correc­tional Services Corp. v. Malesko, 534 U. S. 61 (2001). From Justice Scalia’s concurrence:

Bivens is “a relic of the heady days in which this Court assumed common-law powers to create causes of action” by constitutional implication. Correc­tional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., concurring); see also Wilkie v. Robbins, 551 U. S. 537, 568 (2007) (THOMAS, J., concurring). We have abandoned that power in the statutory field, see Alexander v. Sandoval, 532 U. S. 275, 287 (2001), and we should do the same in the constitutional field, where (presumably) an imagined “implication” cannot even be repudiated by Congress. As I have previously stated, see Malesko, supra, at 75, I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U. S. 228 (1979), and Carlson v. Green, 446 U. S. 14 (1980)) to the precise circumstances that they involved.

From Justice Ginsburg’s dissent:

Were Pollard incarcerated in a federal- or state-operated facility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429 U. S. 97 (1976) (42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61, 75–83 (2001) (opinion of Stevens, J.), I would not deny the same charac­ter of relief to Pollard, a prisoner placed by federal con­tract in a privately operated prison. Pollard may have suffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that same aggravated conduct, when it is engaged in by official ac­tors, also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a feder­al sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment).


January 11, 2012 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Argument Today: Coleman v. Md. Ct. of Appeals

Today the Supreme Court will hear oral argument in Coleman v. Maryland Court of Appeals.  This is an FMLA case with a very interesting federal courts dimension, namely, the question of whether the federal government, via congressional statute, can subject state employers to money damages under the FMLA.

Note that the defendant here is the Maryland Court of Appeals because the plaintiff actually worked there, not for some fancy reason of writs or the like.

Over at the Workplace Prof Blog, Marcia McCormick has a great post about the issues in the case. SCOTUSblog, as usual, has complete coverage.


January 11, 2012 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, January 9, 2012

AT&T Mobility v. Concepcion Does Not Apply to Collective Employment Disputes

The NLRB recently ruled that AT&T v. Concepcion does not apply to arbitration agreements waiving class action rights in certain employment contexts.  Corporate Counsel reports here.  

It will be interesting to see continuing interpretations of this case from institutions other than Article III tribunals.


January 9, 2012 in Class Actions, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Sunday, January 8, 2012

SCOTUSblog post on the Anti-Injunction Act

SCOTUSblog has a great post on the amicus brief by Robert Long on why the Anti-Injunction Act means that the Supreme Court should postpone hearing the ACA challenge cases until after the individual mandate goes into effect in 2014.


January 8, 2012 in Current Affairs, Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 7, 2012

AALS Approves Four New Member Schools

The Association of American Law Schools has approved as new members Drexel University Earl Mack School of Law, North Carolina Central University School of Law, Texas Wesleyan University School of Law, and University of St. Thomas School of Law (Minneapolis).

The story is in the National Law Journal here.


January 7, 2012 in Current Affairs, In the News | Permalink | Comments (0)

Tuesday, January 3, 2012

Junior Faculty Federal Courts Workshop (Feb. 2-4, 2012)

Prof. Howard Wasserman (Florida International) has posted over at PrawfsBlawg some additional information (including the schedule and hotel details) about the Fourth Annual Junior Faculty Federal Courts Workshop. It will be held in Miami on Feb. 2-4, 2012.

January 3, 2012 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)