Civil Procedure & Federal Courts Blog

SCOTUS Decision on Personal Jurisdiction: BNSF Railway v. Tyrrell

Today the Supreme Court issued its decision in BNSF Railway Co. v. Tyrrell, which was argued just over a month ago (and covered earlier here and here). Justice Ginsburg writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. (In fact, this is the first merits opinion in which Justice Gorsuch participated.) Justice Sotomayor concurs in part and dissents in part.

The Court addresses two issues: one statutory and one constitutional. The first is the effect of § 56 of the Federal Employers’ Liability Act (FELA), which provides:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.”

The Montana Supreme Court reasoned that these two sentences combined to authorize personal jurisdiction in any state where the defendant was “doing business.” The Supreme Court unanimously rejects this theory. Justice Ginsburg writes that § 56 “does not address personal jurisdiction.” The first sentence “is a venue prescription governing proper locations for FELA suits filed in federal court.” And the second sentence “simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too.” As to this part of the majority opinion, Justice Sotomayor concurs.

Had this first issue come out the other way, the constitutional analysis might have been more friendly toward allowing personal jurisdiction—although there are some interesting wrinkles on that point that the Court, having rejected the plaintiff’s statutory argument, did not need to address. Without federal statutory authorization, the constitutionality of jurisdiction hinges on the more commonplace inquiry into whether jurisdiction over BNSF would comport with the Fourteenth Amendment’s Due Process Clause. And on this issue, the case follows in the line of the Court’s Goodyear (2011) and Daimler (2014) decisions (which Justice Ginsburg also authored), with a similar end result: due process forbids personal jurisdiction.

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Call for Papers: AALS Section on Conflict of Laws

The AALS Section on Conflict of Laws is inviting papers for its annual program at the AALS Annual Meeting in San Diego (January 3-6, 2018). The full announcement is below:

Download Conflicts Section Call for Papers

 

 

 

 

Thomas on Wistrich and Rachlinski on Judges and Implicit Bias

This week on the Courts Law section of JOTWELL is Suja Thomas’s essay, What Judges Can Do About Implicit Bias. Suja reviews Andrew Wistrich & Jeffrey Rachlinski’s contribution to a new American Bar Association book entitled Ensuring Justice: Reducing Bias (Sarah Redfield ed., forthcoming 2017). Their chapter is Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It.

 

 

 

 

Big Civil Procedure Day at SCOTUS

Today the Supreme Court issued unanimous decisions in two cases we’ve been covering:

• Water Splash, Inc. v. Menon (service by mail under the Hague Convention)
• TC Heartland LLC v. Kraft Foods Group Brands LLC (venue in patent cases)

 

 

 

Another SCOTUS Arbitration Decision: Kindred Nursing Centers v. Clark

This week the Supreme Court issued its decision in Kindred Nursing Centers Limited Partnership v. Clark, a case we covered earlier here. The vote was 7-1, with Justice Kagan writing the majority opinion, Justice Thomas dissenting based on his view that the Federal Arbitration Act does not apply to proceedings in state court, and Justice Gorsuch (who joined the Court after oral argument occurred) taking no part.

Justice Kagan’s opinion begins:

The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements “on equal footing with all other contracts.” DIRECTV, Inc. v. Imburgia, 577 U. S. __, __ (2015) (slip op., at 6) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006)); see 9 U. S. C. §2. In the decision below, the Kentucky Supreme Court declined to give effect to two arbitration agreements executed by individuals holding “powers of attorney”—that is, authorizations to act on behalf of others. According to the court, a general grant of power (even if seemingly comprehensive) does not permit a legal representative to enter into an arbitration agreement for someone else; to form such a contract, the representative must possess specific authority to “waive his principal’s fundamental constitutional rights to access the courts [and] to trial by jury.” Extendicare Homes, Inc. v. Whisman, 478 S. W. 3d 306, 327 (2015). Because that rule singles out arbitration agreements for disfavored treatment, we hold that it violates the FAA.

 

 

 

 

 

Mulligan on Subrin & Main on State Adoption of FRCP Amendments

This week on the Courts Law section of JOTWELL is Lou Mulligan’s essay, But the Feds Do It That Way!

Lou reviews a recent article by Steve Subrin and Thom Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).

 

 

 

Murray on Harmless Error Review (and a Response by Garrett)

Justin Murray has published A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017). Here’s the abstract:

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.

The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.

I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.

Brandon Garrett has published a response, Patterns of Error, 130 Harv. L. Rev. F. 287 (2017).

 

 

 

AALS Section on Federal Courts: Call for Nominations for the Daniel J. Meltzer Award

Here is the announcement:

The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the new Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer.  The Award will recognize a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts.  Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools and have not served as an officer of the Federal Courts Section in the two previous years.  It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years.  Nominations (and questions about the award) should be directed to Prof. Curtis Bradley at Duke University School of Law ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2017.  Nominations will be reviewed by a prize committee consisting of Professors Curtis Bradley (Duke), John Manning (Harvard), Judith Resnik (Yale), Amanda Tyler (Berkeley), and Ernest Young (Duke).  If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2018 AALS Annual Meeting in San Diego, California.

[Update: Nominees may include emeritus professors who previously were members of the full-time faculty of an AALS member or affiliate school.]  

 

 

 

 

Illinois Law Review Online Symposium on Trump’s First 100 Days

Here is the link.

 

 

 

SCOTUS Decision on the Foreign Sovereign Immunities Act

Yesterday the Supreme Court issued a unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., covered earlier here. The case involves the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), which provides that foreign states are not immune from jurisdiction in U.S. courts when, among other things, “rights in property taken in violation of international law are in issue.”

Justice Breyer’s opinion concludes that it is not sufficient to “make a ‘nonfrivolous’ argument that the case falls within the scope of the exception.”

Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.

Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493–494 (1983).

Part III of the opinion contrasts the FSIA with 28 U.S.C. § 1331, finding that Bell v. Hood’s approach to the existence of a federal question does not apply to the FSIA’s expropriation exception.

Justice Gorsuch took no part in the consideration or decision of the case.

Download Venezuela v. Helmerich & Payne

 

 

 

 

SCOTUS Cert Grant in Patchak v. Zinke

Today the Supreme Court granted certiorari in Patchak v. Zinke, which will address the separation-of-powers principles stemming from United States v. Klein. The grant is limited to the first question presented:

Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.