Thursday, October 26, 2017
Now up on the Vanderbilt Law Review’s website is my essay, Lost in Transplantation The Supreme Court’s Post-Prudence Jurisprudence, 70 Vand. L. Rev. En Banc 289 (2017). It’s a response to Fred Smith’s article, Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017).
Wednesday, October 25, 2017
Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action.
Tuesday, October 24, 2017
Access to Justice and the Legal Profession in an Era of Contracting Civil Liability (Fordham Law School, Oct. 27)
This Friday (10/27) Fordham Law School is hosting a colloquium entitled Access to Justice and the Legal Profession in an Era of Contracting Civil Liability.
Here is the schedule:
(H/T: Suja Thomas)
Thursday, October 19, 2017
The University of Florida Levin College of Law is seeking applications for the Ed Rood Chair of Trial Advocacy and Procedure. They are particularly interested in scholars whose work focuses on Civil Procedure, Federal Courts, Evidence, Trial Practice, Professional Responsibility, and other litigation-related courses.
Here is the full announcement:
Wednesday, October 18, 2017
Michael S. Green (William & Mary) has posted The Return of the Unprovided-For Case to SSRN.
The unprovided-for case is a puzzle that arises under governmental interest analysis, the predominant choice-of-law approach in the United States. As its name suggests, in the unprovided-for case the law of no jurisdiction seems to apply. There is a gap in the law. After its discovery by Brainerd Currie in the 1950s, the unprovided-for case proved to be an embarrassment for interest analysts and a focal point for critics. In 1989, however, Larry Kramer published an argument that the unprovided-for case is a myth. There is no gap in the law. Kramer’s argument has been well-received, so much so that discussion of the unprovided-for case has receded among advocates and critics of interest analysis alike.
But the myth is a myth. What Kramer actually shows is not that preexisting law always applies in the unprovided-for case, but that regulatory policies can always be found to recommend law to fill the gap that the unprovided-for case creates. These policies are reasons for laws. They are not themselves laws. Law is not found in the unprovided-for case — it is made.
One might think that looking to freestanding regulatory policies to create law in the unprovided-for case is not a serious problem, since that is what courts normally do when there is a gap in the law. One would be wrong. If a court must look to freestanding regulatory policies to create law in the unprovided-for case, it must do the same in all choice-of-law cases, for these policies are relevant to them too. Interest analysis collapses as a result, leaving no clear choice-of-law method in its place.
Thursday, October 12, 2017
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses? Linda reviews Symeon Symeonides’ recent article, What Law Governs Forum Selection Clauses, which is forthcoming in the Louisiana Law Review.
Wednesday, October 11, 2017
Yesterday the U.S. Supreme Court disposed of Trump v. International Refugee Assistance Project without addressing the merits. Ruling that “the appeal no longer presents a live case or controversy,” it vacated the Fourth Circuit’s judgment and remanded the case “with instructions to dismiss as moot the challenge to Executive Order No. 13,780” under United States v. Munsingwear.
Here’s the entirety of the Court’s Summary Disposition:
We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.