Friday, September 29, 2017
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Adversity and Non-Contentiousness. Kevin reviews two recent pieces by Jim Pfander and Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017), and Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015), as well as Ann Woolhandler’s response to their arguments in Adverse Interests and Article III, 111 Nw. U. L. Rev. 1025 (2017).
Thursday, September 28, 2017
The deadline for filing an appeal has “jurisdictional consequences” and “should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). The deadline is measured from the entry of final judgment. 28 U.S.C. § 1291; Fed. R. App. P. 4. Despite the need for clarity, for at least forty-five years the courts of appeals have disagreed as to when their jurisdiction attaches if cases are consolidated and a final judgment is entered in only one of the cases.
The split and lack of clarity have widened with the passage of time—there are four different circuit rules for determining appellate jurisdiction in consolidated cases. This Court has twice set out to resolve the four-way split. The Court granted certiorari in Erickson v. Maine Central Railroad Co., 498 U.S. 807 (1990); but subsequently dismissed the petition. 498 U.S. 1018 (1990) (mem.). The Court again granted certiorari— and partially addressed the split—in Gelboim v. Bank of Am. Corp.,135 S.Ct. 897 (2015).
Gelboim held that for cases consolidated in multidistrict litigation, a final judgment in a single case triggers the “appeal-clock” for that case. But, by limiting its holding to multidistrict litigation, Gelboim left the split unresolved for cases consolidated in a single district under Fed. R. Civ. P. 42.
The question presented is: Should the clarity Gelboim gave to multidistrict cases be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, September 27, 2017
Representative Steve King (R-IA) introduced H.R. 3487, a bill to expand diversity jurisdiction by defining diversity as minimal diversity:
Section 1332 of title 28, United States Code, is amended by adding at the end the following:
“(f) For the purposes of this section, diversity of citizenship exists if at least one party adverse to any other party to the civil action does not share the same citizenship with that adverse party.”.
The bill has been referred to the House Judiciary Committee. We reported last year on a hearing held before the House Judiciary Committee that explored the adoption of minimal diversity.
Hat tip: Valerie Nannery
Tuesday, September 19, 2017
Now on the Courts Law section of JOTWELL is Fred Smith’s essay, The Trouble with Qualified Immunity. Fred reviews Will Baude’s recent article, Is Qualified Immunity Unlawful?, which is forthcoming in the California Law Review.
Monday, September 18, 2017
Here’s the announcement from the Administrative Conference of the United States (ACUS):
The Forum on Federal Administrative Adjudication, which will take place on Friday, September 29 from 9:00 a.m. to noon, will now be held in Room 50 of the Dirksen Senate Office Building.
More information, including the final agenda, can be found on the Conference’s website (click here). If you are interested in attending, please RSVP to email@example.com, and include the following subject line in your email: “RSVP for Adjudication Forum.” If you have questions about the forum, please contact Attorney Advisor Dan Sheffner (firstname.lastname@example.org).
(H/T: Adam Zimmerman)
Wednesday, September 6, 2017
Eleventh Circuit reverses grant of summary judgment against plaintiffs challenging Alabama’s lethal injection protocol
Last week the U.S. Court of Appeals for the 11th Circuit issued a unanimous decision in Grayson v. Warden. The plaintiffs-appellants are challenging Alabama’s three-drug lethal injection protocol, and the Eleventh Circuit reversed the district court’s grant of summary judgment against them. The opinion considered a number of procedural issues, including the summary judgment standard, law-of-the-case doctrine, and statute of limitations.
With respect to summary judgment, the Eleventh Circuit found that it was error for the district court to reject at the summary judgment phase the appellants’ contention that a single-drug protocol was an available alternative method of execution that sufficiently reduced the risk of pain:
The District Court reached this conclusion with respect to Appellants’ proposed single-drug protocol based on the testimony of the ADOC’s General Counsel, Anne Adams Hill. In deciding to credit Hill’s testimony and then weigh it against Appellants’ proof, the District Court functioned as a finder of fact and ultimate decision maker and therefore erred. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court’s role to weigh conflicting evidence or to make credibility determinations; the non-movant’s evidence is to be accepted for purposes of summary judgment.”). The Court performed the same role when it determined the credibility of testimony and weighed the evidence in summarily disposing of Appellant’s midazolam proposal.
Also notable are the concluding pages of the opinion, which criticized the pleadings on both sides:
Tuesday, September 5, 2017
The Committee on Rules of Practice and Procedure (the Standing Committee) has published proposed amendments to several federal rules, requesting comments by February 15, 2018. Although this batch contains no proposed amendments to the Federal Rules of Civil Procedure, amendments to the Appellate Rules and the Rules for Section 2254 and Section 2255 proceedings may be of interest.
Friday, September 1, 2017
Dustin Benham forwarded the following announcement:
The AALS Section on Teaching Methods is hosting a teaching discussion forum via conference call on September 15, 2017, from 2-3 pm ET. During the call, a few presenters will present a teaching problem and solution for discussion with the group. We welcome your participation in the call but do ask that you RSVP via our short online form here.
Also, the Section needs presenters (on any teaching topic) for the September 15th call. The format is informal – all we ask is that you submit a short topic proposal in advance to allow us to coordinate and organize the call. Each topic and discussion usually run about 15 minutes. You can submit your proposal at the RSVP form mentioned above. The deadline for RSVPs and proposals has been extended to Friday, September 8, 2017.
For more information about the Teaching Methods conference call, descriptions of previous discussions, and online audio from the last call, see the full Teaching Methods newsletter here.