Friday, November 30, 2018
Doron Kalir has published Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018). It begins:
On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true “clash of the titans,” this 5–4 decision featured colorful comments on both sides, claims of “absurdities,” uncited use of Alice in Wonderland vocabulary (“curiouser,” anyone?), and an especially harsh accusation by the dissent that “we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place.”
One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code section. Far from it. The sole issue in Artis was the interpretation of 28 U.S.C. § 1367(d), an obscure tolling provision dealing with the time period allowed for plaintiffs who filed their claims in federal court and were dismissed to refile their claims in state court.
Thursday, November 29, 2018
Fred Smith has published Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018). Here’s the abstract:
Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.
This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits. Under Younger v. Harris — and the doctrine of Younger abstention — federal courts may not disrupt a state criminal proceeding by means of an injunction or declaratory judgment. Federal courts’ reluctance to resolve such cases is predicated on federalism interests. Traditionally, however, federal courts have nonetheless entertained suits to stop or prevent irreparable harm, especially where an underlying state process provides an inadequate means to raise federal constitutional claims. When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave.
This Article argues for an exception to Younger abstention when litigants challenge structural or systemic constitutional violations. “Structural” means a flaw that infects a judicial process’s basic framework in incalculable ways, such as denial of counsel at a critical stage or a judge’s financial interest in the outcome. “Systemic” means a flaw that routinely impacts litigants by way of a policy, pattern or practice, or other class-wide common set of violations. Because the United States Supreme Court has already made clear that “inadequate” state proceedings should not stand in the way of federal intervention, this exception can be adopted and implemented without major changes to existing Supreme Court precedent. No one should be in jail or punished because she is poor. Federal courts should ensure that this substantive right has practical effect.
Tuesday, November 27, 2018
Lonny Hoffman has posted on SSRN a draft of his article, Pereira's Aftershocks. Here’s the abstract:
At the end of its last term, the Supreme Court held in Pereira v. Sessions that a notice to appear at removal proceedings that does not include the time and place of the proceedings cannot interrupt the continuous physical presence requirement that may entitle a noncitizen to cancellation of removal. Since the decision was announced, there has been a feverous debate about whether the case applies not just when cancellation of removal is sought but to all immigration removal proceedings since every judicial removal proceeding is initiated with a notice to appear. Immigration advocates argue, and some courts have already agreed, that Pereira applies to all adversarial removal proceedings and that the case necessarily means that immigration courts lack subject matter jurisdiction in any case that began with a notice to appear that did not include the time and place of the proceedings. By contrast, the government’s view—and that of a number of other courts—is that Pereira is very limited in its application. To help lawyers and judges think clearly about the case’s impact, this paper offers an assessment of the issues raised. I reach several major conclusions that, collectively, are at odds with positions advanced on both sides. As for Pereira’s scope, I conclude that it applies to all removal proceedings and is not confined to the narrower context in which the case arose. However, I reject the view that treating improper notice is relevant to the immigration court’s jurisdiction over removal proceedings. But while a defective notice is irrelevant to the court’s jurisdiction, there still are consequences if the government has served a defective notice. I show that whether, and in what cases, a Pereira challenge may matter turns on three factors: Pereira’s applicability, either prospectively or retroactively; the possibility of forfeiture; and, finally, the noncitizen’s ability to demonstrate prejudice in the underlying removal proceeding resulting from service of a defective notice.
Monday, November 26, 2018
Michael Collins and Ann Woolhandler have posted on SSRN their article, Judicial Federalism Under Marshall and Taney, 2017 Sup. Ct. Rev. __. Here’s the abstract:
The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism.
The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power.
The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”
Friday, November 23, 2018
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, A Decade of Procedural Despair: Denying Access to Justice and Closing the Courthouse Doors. Linda reviews Mike Vitiello’s book, Animating Civil Procedure (2017).
Tuesday, November 20, 2018
Dan Birk has posted on SSRN his article, The Common Law Exceptions Clause, which was published in the Villanova Law Review. Here’s the abstract:
Jurists and scholars widely acknowledge that the institutions, practices, and decisions of the British common-law court system at the time of the framing can provide an important guide in interpreting and applying the provisions of Article III of the U.S. Constitution. It is somewhat surprising, then, that students of the federal courts have so rarely turned to the common law in attempting to understand Article III’s most controversial and widely debated question: Whether Congress can use its power to make “exceptions” to the Supreme Court’s appellate jurisdiction to prevent the Supreme Court from deciding cases presenting particular questions of constitutional law.
This Article fills that gap in the Exceptions Clause literature by conducting a detailed examination of pre-1789 British cases and statutes related to parliamentary exceptions to the juris-diction of the supreme courts of England and Scotland. By ignoring this precedent, participants in the debate over the Exceptions Clause have been missing an important piece of the puzzle. Strikingly, the evidence refutes the conventional view that Congress’s exceptions power is unlimited in scope and confirms textual arguments that a defining attribute of a “supreme” court is its ability to supervise the decisions of courts inferior to it. The evidence shows that, even where Parliament made an exception to the appellate jurisdiction of a supreme court, it was well-understood that the exception would never entirely divest that court of the power to correct major interpretive errors and denials of due process and to ensure that inferior courts remain within the bounds of the law. By resituating the Exceptions Clause within the common-law heritage familiar to the Framers of the Constitution, this Article offers an interpretation of the Clause that makes sense of and respects the constitutional text while assuaging fears that Congress could use its exceptions power to entirely preclude Supreme Court review of the decisions of lower federal and state courts.
Monday, November 19, 2018
Portia Pedro has published Stays, 106 Cal. L. Rev. 869 (2018). Here’s the abstract:
After judges issue final orders and judgments, losing defendants often ask courts to make a determination that may seem to be a mere procedural technicality, but is, instead, a new battleground for injunctive litigation. These judges are deciding whether to grant a stay pending appeal—whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Because litigating and deciding an appeal can take years and because the issues at the heart of much of civil injunctive litigation are extremely time-sensitive, determining whether to grant or deny a stay is a momentous decision. By deciding requests for stays pending appeal, federal judges have decided if Texas could enforce health and safety regulations, or if clinics could provide abortions in the state; if 300,000 registered voters in Wisconsin would be able to vote, or if the state could enforce its duly-enacted provisions to regulate elections and prevent voter fraud; if states could determine requirements for marriage, or if same-sex couples could marry; if the President could enforce an Executive Order regarding national security, or if Muslims could enter the country regardless of religion; and, arguably, if the forty-third US President would be Al Gore or George W. Bush.
The standard for stay determinations ostensibly includes four factors: (1) the likelihood of success on appeal; (2) the likelihood of irreparable harm pending appeal; (3) the balance of the hardships; and (4) the public interest. However, there is more idiosyncrasy than standard because courts vary so widely regarding what constitutes each prong and the manner in which courts should weigh each prong, if at all. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life-changing (and potentially world-changing) issues on the line pending appeal, stays are a nearly law-free zone. The immense consequences of stay determinations, due to lengthy appeals and the time-bound nature of the underlying injunctions or orders, mean that courts need to make an effort to get stay decisions right.
The author argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. The Article suggests different standards for stays, turning on whether review is guaranteed or discretionary. The author also asserts that courts should write reasoned opinions for stay decisions.
Friday, November 16, 2018
SCOTUS grants cert to decide the scope of discovery in case challenging 2020 census question about citizenship status
The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is granted. Petitioners' brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents' brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.
The question presented is:
Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
Tuesday, November 13, 2018
We covered earlier last month’s conference on the 50th anniversary of the Multidistrict Litigation statute. NYU Law School’s Center on Civil Justice has now posted video of the conference panels, available here.
Wednesday, November 7, 2018
My recent article, Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), is now up on SSRN. Here’s the abstract:
After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic level of minimum contacts required for specific jurisdiction, and (2) the test for determining whether a case can proceed on a specific jurisdiction theory rather than having to satisfy the newly restrictive general jurisdiction standard.
This Article begins with a typology that identifies three situations where personal jurisdiction is most likely to threaten access to justice: the home-state scenario, the safety-net scenario, and the aggregation scenario. It then explains why the Court’s recent decisions support an approach to minimum contacts that will—in most cases—permit a plaintiff who is injured in his or her home state to file suit there. Even beyond the home-state scenario, a case should be evaluated under the more lenient specific jurisdiction standard as long as there is a rational basis for the forum to adjudicate the availability of judicial remedies in that particular case. This rationality standard coheres with the Court’s approach to other areas of law governing the permissible reach of a state’s sovereign power. And it can permit jurisdiction when other courts are inadequate or unavailable (the safety-net scenario) and when proceeding in a single forum is necessary for effective adjudication of claims arising from a common course of conduct (the aggregation scenario).
Thanks again to the editors at the Vanderbilt Law Review for their great work on the piece!
Monday, November 5, 2018
Friday, November 2, 2018
There’s been a flurry of recent Supreme Court activity involving Juliana v. United States, a case pending in U.S. District Court for the District of Oregon (covered earlier here and here). Twenty-one young plaintiffs are suing the federal government alleging that it has contributed to climate change in violation of the their constitutional rights.
On October 18, the Solicitor General applied for a stay of discovery and trial. The Supreme Court granted the stay on October 19, “pending receipt of a response, due on or before Wednesday, October 24, 2018, by 3 p.m., and further order of the undersigned or of the Court.” The plaintiffs filed their response on October 22, and the Solicitor General file a reply on October 24.
At this point, there’s been no further ruling from the Supreme Court. The Supreme Court proceedings are captioned In re United States and the docket is here.
UPDATE: Late Friday afternoon, the Supreme Court issued an order denying the Solicitor General’s motion. The Court indicated, however, that “adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.”