Wednesday, January 31, 2018
Earlier this month, the Sixth Circuit issued its decision in George v. Hargett. The case involves whether state officials who are sued for constitutional violations in federal court can file a new lawsuit in state court—naming the federal-court plaintiffs as state-court defendants—and then invoke issue preclusion in the federal court action. That’s what the Tennessee officials did in George, and the Sixth Circuit panel found that the state court’s ruling must be given issue-preclusive effect in federal court. The panel even called the officials’ move “an efficient and fruitful substitute” for abstention or certification—both of which the federal district court had explicitly rejected. A petition for rehearing en banc has been filed, and the Sixth Circuit has ordered the officials to respond by Thursday, February 9.
In the initial round of Sixth Circuit briefing, Suzanna Sherry authored a law-professor amicus brief arguing against giving the state-court judgment preclusive effect. (In the interest of full disclosure, I was one of the signatories to that amicus brief.) Here’s Suzanna’s summary of the George case and the panel’s recent ruling:
Eight private plaintiffs filed a federal-court lawsuit against state officials alleging various constitutional violations, some of which were intertwined with questions about the meaning of a state constitutional provision.
When the district court denied motions to dismiss, abstain under Pullman, or certify, the state officials didn’t seek interlocutory review. Instead they filed suit against the eight private plaintiffs in state court seeking a declaratory judgment that their actions were lawful under the state constitution. After denying any discovery, the state court quickly issued summary judgment for the state officials, one day before the federal court issued its judgment for the plaintiffs.
The state-court judgment wasn’t appealed, and became final before the Sixth Circuit ruled on appeal. The Sixth Circuit gave the state-court judgment issue-preclusive effect, and thus held that the state constitutional provision had to be interpreted the way the state court had interpreted it rather than the way the federal court had. (Remember, this is a just a state trial court: Its opinion wouldn’t be binding under the Erie doctrine.)
What this decision seems to do is to invite any government official sued in federal court to answer the federal complaint with a state lawsuit, in hopes of stymying the pending federal suit and intimidating civil-rights plaintiffs. It rewrites § 1983 law to allow state officials to essentially require exhaustion of state remedies. It undermines the role of the federal courts as guarantors of constitutional rights.
Here’s the opinion of the Sixth Circuit panel:
And here’s the plaintiffs’ petition for rehearing en banc:
Monday, January 29, 2018
The Fourth Annual Civil Procedure Workshop will be held at Stanford Law School on November 9-10, 2018. The call for papers is below (the deadline for submitting abstracts is March 23, 2018).
We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018.
While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Norman Spaulding (Stanford), email@example.com
Dave Marcus (Arizona), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Brooke Coleman (Seattle U), firstname.lastname@example.org
Tuesday, January 23, 2018
Now on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Cooperative Procedure-Making. Pam reviews Robin Effron’s forthcoming article, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion, 98 B.U. L. Rev. (forthcoming 2018).
Monday, January 22, 2018
Today the Supreme Court issued a 5-4 decision in Artis v. District of Columbia (covered earlier here), which addresses the tolling provision of the supplemental jurisdiction statute, 28 U.S.C. § 1367(d). Section 1367(d) often comes into play where a federal court dismisses all claims for which there is an independent basis for federal subject-matter jurisdiction, and then declines to exercise supplemental jurisdiction (pursuant to § 1367(c)) over the remaining claims. Anticipating that the parties would then pursue any such claims in state court, § 1367(d) provides that the limitations period for such a claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
Justice Ginsburg’s majority opinion (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan) frames the question this way:
Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case? Petitioner urges the first, or stop-the-clock, reading. Respondent urges, and the District of Columbia Court of Appeals adopted, the second, or grace-period, reading.
The choice between these interpretations is crucial for Artis, because she refiled her state-law claims 59 days after the federal-court dismissal. Since she filed her federal-court suit with 2 years remaining on the state statute of limitations, this would be timely under the stop-the-clock approach but not under the grace-period approach.
The majority adopts the “stop-the-clock” reading: “We hold that § 1367(d)’s instruction to ‘toll’ a state limitations period means to hold it in abeyance, i.e., to stop the clock.” Part II of the opinion justifies this conclusion as a matter of the statutory text. Part III of the opinion then considers whether the statute “exceed[s] Congress’ authority under the Necessary and Proper Clause because its connection to Congress’ enumerated powers is too attenuated or because it is too great an incursion on the States’ domain” and whether the Court should adopt the grace-period reading to “avoid constitutional doubt.” The majority rejects this line of argument, relying on its unanimous decision in Jinks v. Richland County upholding the constitutionality of § 1367(d). It also notes that both stop-the-clock and grace-period provisions “are standard, off-the-shelf means of accounting for the fact that a claim was timely pressed in another forum. Requiring Congress to choose one over the other would impose a tighter constraint on Congress’ discretion than we have ever countenanced.”
Justice Gorsuch authored the dissenting opinion, joined by Justices Kennedy, Thomas, and Alito.
Wednesday, January 17, 2018
Yesterday the Supreme Court heard oral argument in two cases:
- Dalmazzi v. United States (transcript here) involves a challenge to judges serving simultaneously on military Courts of Criminal Appeals and the Court of Military Commission Review. It raises some interesting jurisdictional issues, including whether Article III permits Supreme Court jurisdiction over the Court of Appeals for the Armed Forces. Here’s Amy Howe’s analysis of the Dalmazzi argument for SCOTUSblog.
- Hall v. Hall (transcript here) involves the appealability of judgments in cases consolidated under FRCP 42. Here’s Howard Wasserman’s analysis of the Hall argument for SCOTUSblog.
Friday, January 12, 2018
Today the Supreme Court granted certiorari in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220), limited to the following question:
Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).
Thursday, January 11, 2018
I’ve just posted my recent article, Case Law, 97 B.U. L. Rev. 1947 (2017). Here’s the abstract:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
Thanks once again to the editors at the Boston University Law Review and to my colleagues who gave me such great comments and suggestions.
Tuesday, January 9, 2018
Monday, January 8, 2018
Today the Supreme Court issued its decision in Tharpe v. Sellers. In a per curiam opinion, it grants certiorari and vacates the Eleventh Circuit’s refusal to grant a certificate of appealability (COA) to a habeas petitioner challenging the district court’s denial of his Rule 60(b)(6) motion to reopen his federal habeas proceedings. It remands the case for further consideration of whether Tharpe is entitled to a COA.
Justice Thomas authors a dissenting opinion, joined by Justices Alito and Gorsuch.
Zayn Siddique has posted on SSRN his article, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). Here’s the abstract:
One of the most dramatic exercises of a court’s equitable authority is the nationwide injunction. Although this phenomenon has become more prominent in recent years, it is a routine fixture of the jurisprudence of federal courts. Despite the frequency with which these cases arise, there has been no systematic scholarly or judicial analysis of when courts issue nationwide injunctions and little discussion of when they should issue such relief.
This Article presents the first comprehensive account of when nationwide injunctions issue. Earlier attempts to answer this question have focused exclusively on challenges to federal regulatory action and have concluded that the domain is one of unconstrained judicial discretion. By contrast, this Article considers not only cases involving the federal government but also those exclusively between private parties. The conclusion from this expanded focus is that courts determining the geographic scope of injunctions in disputes between private parties are largely guided by a single principle: The injunction should be no broader than “necessary to provide complete relief to the plaintiffs.” While the “complete relief” idea has echoes throughout equitable jurisprudence, it proves particularly robust at organizing the conditions under which nationwide injunctions issue. The Article then examines the body of cases involving the federal government to test the explanatory power of the complete relief principle. Although there is more variation, here too complete relief provides a useful tool for categorizing seemingly disparate cases under a common classification scheme. The Article concludes by arguing not only that the complete relief principle is descriptively useful for focusing debates about nationwide injunctions but also that Federal Rule of Civil Procedure 65 should be amended to codify the principle as a formal limit on the appropriate geographic scope of an injunction.