Civil Procedure & Federal Courts Blog

Notre Dame Law Review Symposium Issue on Qualified Immunity

The Notre Dame Law Review recently published a symposium issue entitled Federal Courts, Practice & Procedure: The Future of Qualified Immunity, which includes pieces by Sam Bray, Joanna Schwartz, Aaron Nielson & Chris Walker, Karen Blum, Alan Chen, Jack Preis, Scott Michelman, David Shapiro & Charles Hogle, Alex Reinert, and Fred Smith.

eDiscovery Writing Competition

Below is the announcement for the William P. Butterfield Award for Excellence in eDiscovery Writing:

The Sedona Conference and Hausfeld, LLP are sponsoring the William P. Butterfield Award for Excellence in eDiscovery Writing. The Award will be presented annually to the winner of a writing competition held to recognize and incentivize innovative legal thinking and technical solutions that advance the field of eDiscovery and promote cooperation, collaboration and efficiency in eDiscovery. The winner of the competition will be recognized in a news release announcing the Award, receive a $10,000 cash award from Hausfeld LLP and, at the option of the winner and The Sedona Conference, have his or her winning paper published in The Sedona Conference Journal.

For more information about the Award and details about how to enter the writing competition, please see https://www.hausfeld.com/williampbutterfieldaward. 

The 2018 deadline for submissions is October 1, 2018. The winner will be announced before 2018 year's end. For 2019 and the years following, the submission deadline will be March 1 of each year, with the winner to be announced on or before May 1 of each year.

 

 

 

Hammond on Pleading In Forma Pauperis Status

Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.

 

Struve on Inmate Appeals in Federal Court

Cathie Struve has published The Federal Rules of Inmate Appeals, 50 Ariz. St. L.J. 247 (2018). Here’s the abstract:

The Federal Rules of Appellate Procedure turn fifty in 2018. During the rules' half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past fifty years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals. In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities—and underscores the salience of local court practices and institutional partnerships.

 

 

Register for the Fourth Annual Civil Procedure Workshop (Nov. 9 & 10, Stanford Law School)

As covered earlier, the Fourth Annual Civil Procedure Workshop will be held at Stanford Law School on November 9-10, 2018.

You can find all of the details – and register to attend – here.

 

 

Call for Papers: The Fourth Annual Law & Corpus Linguistics Conference

Deadline: October 10, 2018

Event Date: February 7-9, 2019

Location: Brigham Young University, Provo, UT

Organization: Brigham Young University

Contact: James Heilpern, [email protected]

BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.

The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at [email protected]

Standing Committee Publishes Proposed Amendment to FRCP 30(b)(6)

This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.

Download Proposed Amendments August 2018

The period to submit written comments on the proposed amendments runs until February 15, 2019.

You can find more information about submitting written comments and presenting testimony at public hearings here.

 

 

 

Vladeck on Caruço on Military Justice and the Court of Appeals for the Armed Forces

Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Why Military Justice Doesn’t Get Enough Academic Attention. Steve reviews Rodrigo Caruço’s recent article, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016).

 

 

SDNY authorizes service on Wikileaks via Twitter

Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).

Here's the tweet effecting service:

https://twitter.com/ProcessServiceC/status/1027960972504457217

Here's the court's order (from earlier this week) authorizing service via Twitter:

Download Handwritten Order

Here's the plaintiff's motion:

Download Motion

 

 

 

 

 

 

 

Interesting Ninth Circuit Decision: Rodriguez v. Swartz

Yesterday the Ninth Circuit issued its decision in Rodriguez v. Swartz. It’s a particularly interesting case in light of the Supreme Court’s recent decisions in Ziglar v. Abbasi and Hernandez v. Mesa.

By a 2-1 vote, the panel affirmed the district court’s refusal to dismiss a claim against a U.S. Border Patrol agent who, while standing on American soil, shot and killed a teenage Mexican citizen who was walking down a street in Mexico. (In the interest of full disclosure, I joined an amicus brief on behalf of law professors in support of the plaintiff-appellee.)

Judge Andrew Kleinfeld’s majority opinion concludes:

Under the particular set of facts alleged in this case, Swartz is not entitled to qualified immunity. The Fourth Amendment applies here. No reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. And despite our reluctance to extend Bivens, we do so here: no other adequate remedy is available, there is no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either do not apply or counsel in favor of extending Bivens.

Of course, the facts as pleaded may turn out to be unsupported. When all of the facts have been exposed, the shooting may turn out to have been excusable or justified. There is and can be no general rule against the use of deadly force by Border Patrol agents. But in the procedural context of this case, we must take the facts as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case.

Judge Milan Smith dissented, arguing that no Bivens action was available.

 

 

Brescia on State Standing

Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:

By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.

 

 

Court Debt: Fines, Fees, and Bail, Circa 2020 at the 2019 AALS Annual Meeting

Here's an announcement for a program that will be co-sponsored by the AALS Section on Civil Procedure at the 2019 AALS Annual Meeting: 

AALS 2019 Program Summary:  “Court Debt”: Fines, Fees, and Bail, Circa 2020

This symposium, co-sponsored by the Sections on Civil Procedure, Tax, Bankruptcy, and Criminal Justice, examines how courts are financed and the growing reliance on user fees, whether for filing or defending civil cases; charges imposed on criminal defendants such as “registration fees” for “free” lawyers; the imposition of both civil and criminal “fines”; and the use of money bail. We explore whether and how constitutional democracies can meet their obligations to make justice accessible, both to participants and to the public, in light of the numbers seeking help from courts, high arrest and detention rates, declining government budgets, and shifting ideologies about the utility and desirability of accessible courts.  These topics have prompted the creation of national and state task forces; litigation (including challenges to detention of individuals eligible for release but lacking funds to secure bail bonds, and the automatic losses of drivers’ licenses for nonpayment of fines); and a mix of economic, political, and legal analyses probing the effects of “court debt.”

Session one:  Understanding the dimensions and the Legal Critiques

     Moderator/introduction: Judith Resnik, Yale Law School

     Brandon Buskey, Staff Attorney, ACLU Criminal Law Reform Project, NYC

Abbye Atkinson, Berkeley 

Beth Colgan, UCLA

Crystal Yang, Harvard Law School

Cortney Lollar, Kentucky

     Lisa Foster and Johanna Weiss, co-directors of the Fines and Fees Justice Center

 

Session two: Remedies: from Bankruptcy to Abolition and from Courts to Legislatures

   Introduction/moderator David Marcus, UCLA

Pamela Foohey, Indiana University Maurer School of Law

Alex Karakatsanis, Founder and Executive Director, Civil Justice Corps 

     Jeff Selbin, Berkeley

Gloria Gong, Director of Research and Innovation, Government Performance Lab, Harvard Kennedy School

     Maureen O’Connor, Supreme Court Ohio and Chair of the National Center for State Courts on Task Force on Fines and Fees

                     *** 

For those interested in reading cases and commentary in advance, a 2018 volume, Who Pays? Fines, Fees, Bail, and The Costs of Courts, is available at  https://law.yale.edu/system/files/area/center/liman/document/liman_colloquium_book_04.20.18.pdf. Many other articles are available and, in advance of the symposium, we plan to provide a bibliography with additional readings.  An edited set of essays will be published after the symposium in the North Carolina Law Review.

Hessick on Consenting to Federal Adjudication Beyond Article III

Andy Hessick has published Consenting to Adjudication Outside the Article III Courts, 71 Vand. L. Rev. 715 (2018). Here’s the abstract:

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.