Wednesday, November 30, 2016
Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):
Tuesday, November 29, 2016
The NYU Law Review and the Center on Civil Justice are hosting a symposium entitled “Rule 23 @ 50” this Friday and Saturday. From the announcement:
This is a wonderful time to reflect on Rule 23 – what it was meant to do; whether it has met its promise; if not, why not, and what can be done to remedy the situation; and what is in store for the Rule going forward.
When: December 2–3, 2016.
Where: Vanderbilt Hall, 40 Washington Square South.
Panels will explore the history of the rule, its use in civil rights and mass tort cases, what the rule was meant to accomplish, whether it has done so, and if not, whether there are ways to fix the situation. There will be an oral history interview with Professor Arthur Miller, who was there at the creation of the rule. The conference will conclude with a judges’ roundtable moderated by Professor Miller.
Monday, November 28, 2016
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Equity, the Judicial Power, and the Problem of the National Injunction. Kevin reviews Sam Bray’s article, Multiple Chancellors: Reforming the National Injunction.
Friday, November 18, 2016
Yesterday the U.S. Supreme Court issued a summary disposition in two antitrust cases—Visa v. Osborn and Visa v. Stoumbos—for which it had earlier granted certiorari. Here’s the text of yesterday’s ruling:
These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.
Monday, November 14, 2016
Ed Cheng has posted on SSRN a draft of his article, Detection and Correction of Legal Publication Bias. Here’s the abstract:
Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.
Thursday, November 10, 2016
Tuesday, November 8, 2016
Today the Supreme Court hears oral argument in Bank of America v. Miami, which involves standing to sue under the Fair Housing Act. Here are the questions presented:
- By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
- The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?
You can find links to all of the briefing at SCOTUSblog.
[Update: Here is the oral argument transcript.]
Monday, November 7, 2016
- Whether FEHBA preempts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts.
- Whether FEHBA’s express-preemption provision, 5 U.S.C. § 8902(m)(1), violates the Supremacy Clause.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, November 1, 2016
As covered earlier, the Standing Committee has published proposed amendments to the Federal Rules of Civil Procedure (along with proposed amendments to the Appellate, Bankruptcy & Criminal Rules). The proposed amendments to Rule 23 (which deal principally with class action settlements) have received much of the attention, but the proposals also include changes to Rules 5, 62, and 65.1.
The first public hearing on the proposed civil rules amendments takes place this Thursday, November 3, in Washington, D.C. The public comment period runs until February 15, 2017.