Tuesday, April 30, 2019
Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.
The petition for certiorari presents the following questions:
1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.
2. Whether the Government forfeited its timeliness defense.
As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.
As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.
Stay tuned, everyone!
Friday, April 26, 2019
Ronald Brand has published Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative, 37 J.L. & Com. 29 (2018). Here’s the abstract:
In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.
Wednesday, April 24, 2019
SCOTUS decision in Lamps Plus v. Varela: interpreting ambiguous arbitration agreements to allow classwide arbitration
Today the Supreme Court issued a 5-4 decision in Lamps Plus, Inc. v. Varela. The majority opinion, authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, addresses whether the Federal Arbitration Act (FAA) bars an order requiring class arbitration when an arbitration agreement is “ambiguous” about the availability of class arbitration. According to the majority, it does.
The Court first rules that § 16(a)(3) of the FAA permits appellate review when a party seeks an order compelling individual arbitration but the district court issues an order compelling arbitration on a classwide basis. It then decides that “[c]ourts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.” [Op. 12] The Court does not, however, address whether the availability of class arbitration is necessarily a question for the judge—rather than the arbitrator—to decide. Footnote 4 emphasizes that “the parties agreed that a court, not an arbitrator, should resolve the question about class arbitration.”
Justice Thomas joins the majority opinion but authors a brief concurring opinion. There were four dissenting opinions: one by Justice Ginsburg, which was joined by Justices Breyer and Sotomayor; one by Justice Breyer; one by Justice Sotomayor; and one by Justice Kagan, which was joined by Justices Ginsburg and Breyer and partially joined by Justice Sotomayor.
Tuesday, April 23, 2019
Coleman on Law Clerks for Workplace Accountability’s Public Comment on Proposed Changes to the Judicial Conduct Code & Rules
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Accountability Requires Tenacity. Brooke reviews Law Clerks for Workplace Accountability, Public Comment on The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.
Monday, April 22, 2019
Maureen Carroll has published Class Actions, Indivisibility, and Rule 23(b)(2), 99 B.U. L. Rev. 59 (2019). Here’s the abstract:
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the plaintiffs seek.
Some defendants have encouraged federal courts to adopt an extremely restrictive version of indivisibility, which I term “endpoint indivisibility,” as a standard for applying Rule 23(b)(2). This Article argues that an endpoint indivisibility requirement would be fundamentally inconsistent with the historical models for Rule 23(b)(2). Moreover, such a requirement would have devastating effects on civil rights litigation. An alternative standard, which I term “root-cause indivisibility,” offers a better logical and historical fit.
Friday, April 19, 2019
Josh Douglas & Mike Solimine have published Precedent, Three-Judge District Courts, and the Law of Democracy, 107 Geo. L.J. 413 (2019). Here’s the abstract:
As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court?
This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive.
Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.
Wednesday, April 17, 2019
Jessica Steinberg has published A Theory of Civil Problem-Solving Courts, 93 N.Y.U. L. Rev. 1579 (2018). Here’s the abstract:
This Article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” jail-based sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated private law cases: rental housing and consumer debt.
Three structural conditions in the civil courts—systemic lack of counsel, high-volume dockets, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.
The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.
Tuesday, April 9, 2019
Today on the Courts Law section of JOTWELL is Suja Thomas’s essay, Plea Bargaining with Juveniles. Suja reviews a recent article by Erika Fountain & Jennifer Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol’y & L. 192 (2017).
Friday, April 5, 2019
Cassandra Robertson has published Judicial Impartiality in a Partisan Era, 70 Fla. L. Rev. 739 (2018). Here’s the abstract:
Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. As a result, the public increasingly scrutinizes judges and judicial candidates for signs of political agreement, distrusting those perceived to support the opposing political party.
Judges themselves are not immune to these political forces. In spite of a strong judicial identity that demands impartiality and judicial conduct rules that require judges to avoid even the appearance of bias, judges have the same unconscious biases and preconceptions as anyone else. Moreover, judges must generally have strong political affiliations to reach the bench at all, regardless of whether they are elected or appointed. Drawing the line between mere political affiliation and an inappropriate appearance of partisan bias can therefore be difficult.
This Article analyzes the mechanisms available to safeguard judicial impartiality. Although recusal motions are the most common weapon against partisan bias, this Article argues that recusal motions cannot effectively guard against the appearance of bias arising from a judge’s political views. When recusal rules rely on an undefined “appearance” standard, they are susceptible to an interpretive bias that undermines their purpose. Nonetheless, the Article concludes that the appearance of partisan bias in the judicial branch is not so different from other types of unconscious bias. As a result, ordinary procedural tools—including the right to a jury trial and our system of appellate review—may provide a stronger safeguard against judicial bias than recusal motions.
Thursday, April 4, 2019
Christopher Leslie has published Conspiracy to Arbitrate, 96 N.C. L. Rev. 381 (2018). Here’s the abstract:
Beginning in the 1980s, the Supreme Court has ushered in a new Age of Arbitration in which firms can use arbitration clauses to include otherwise unenforceable terms in their contracts. This has allowed defendants to shorten statutes of limitations, to limit damages, and to prevent injunctive remedies altogether. Given the pro-business nature of arbitration clauses, mandatory arbitration clauses have become standard in some industries. Some industries may transition to market-wide mandatory arbitration, in part, through conspiracies to arbitrate. A conspiracy to arbitrate exists when the competing firms in a market illegally agree that they will all impose mandatory arbitration on their consumers.
This Article highlights the dangers of conspiracies to impose arbitration, their illegality, and their utility in concealing and protecting price-fixing conspiracies. Despite the fact that conspiracies to arbitrate violate antitrust law, courts have misapplied arbitration law in ways that make such conspiracies profitable and perhaps inevitable in some markets. Relying on the false premise that Congress created a federal policy favoring arbitration, federal courts have employed seemingly neutral doctrines in ways that actively implement conspiracies to arbitrate. For example, courts have compelled antitrust plaintiffs to arbitrate their claims that defendants have conspired to impose arbitration, which means courts are enforcing—instead of condemning—the very agreement among competitors that they are supposed to adjudicate. Courts have also misapplied equitable doctrines and have given retroactive effect to arbitration clauses. These judicial decisions protect both conspiracies to arbitrate and price-fixing cartels.
The Article then presents a case study of recent litigation involving an alleged conspiracy among banks that issue credit cards to impose arbitration clauses on their customers. Following a bench trial, the federal trial judge held—and the Second Circuit affirmed—that the plaintiffs failed to prove an agreement among the defendants to impose arbitration clauses. In reaching this conclusion, the court committed a litany of mistakes and ultimately failed to recognize that it did, in fact, actually find an illegal conspiracy to arbitrate. These errors flowed from the court’s incorrect belief that Congress intended courts to favor arbitration over litigation.
The Article concludes by proposing changes to the way that courts evaluate conspiracy-to-arbitrate claims. Federal courts are essentially complicit in antitrust violations when they compel compliance with arbitration clauses that are the product of alleged illegal conspiracies. The Supreme Court’s rush to encourage and enforce arbitration clauses should not blind lower courts to the possibility that conspiracies to arbitrate are preventing the free market from operating properly to protect consumer interests.