Monday, September 30, 2019
Friday, September 27, 2019
Mila Sohoni has posted on SSRN a draft of her article, The Lost History of the 'Universal' Injunction, which is forthcoming in the Harvard Law Review. Here’s the abstract:
The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide cases “in … equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced by the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it also allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired, and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial re-definition of Article III — should halt.
Thursday, September 26, 2019
Yesterday the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Molock v. Whole Foods Market, Inc., which addresses the extent to which the Supreme Court’s 2017 Bristol-Myers decision on personal jurisdiction applies to class actions.
Here is the oral argument recording.
Here’s coverage from Perry Cooper, Whole Foods Appeals Court Tries to Avoid Jurisdictional Issue (Bloomberg).
And here’s what can happen in the Whole Foods parking lot.
Wednesday, September 25, 2019
John Coyle has published Interpreting Forum Selection Clauses, 104 Iowa L. Rev. 1791 (2019). Here’s the abstract:
Over the past half century, courts in the United States have developed canons of construction that they use exclusively to construe forum selection clauses. These canons play an important role in determining the meaning of these clauses and, by extension, whether litigation arising out of a particular contract must proceed in a given place. To date, however, these canons have attracted surprisingly little attention in the academic literature.
This Article aspires to fill that gap. It provides the first comprehensive taxonomy of the canons that U.S. courts use to construe forum selection clauses. These interpretive rules fall into four groups: (1) the canons relating to exclusivity, (2) the canons relating to scope, (3) the canons relating to non-signatories, and (4) the canons relating to federal court. When a judge is presented with ambiguous language in a forum selection clause, she will frequently turn to one of these interpretive rules of thumb to resolve the ambiguity.
In principle, each of these canons produces outcomes that are broadly consistent with the preferences of most contracting parties. In practice, this is not always the case. Drawing upon interviews and e-mail exchanges with 86 attorneys, the Article shows that several of these canons produce outcomes that are arguably inconsistent with majoritarian preferences. In such cases, the Article argues that these canons should be cast aside. In their place, the courts should adopt new interpretive default rules that more closely track the preferences of most contracting parties.
The Article’s final contribution to the literature relates to contract drafting. If a forum selection clause is unambiguous, there will be no need for the courts to invoke the canons. The Article concludes by urging contracting parties incorporate certain words and phrases into their contracts ex ante so as to avoid incurring the costs associated with litigating their meaning ex post.
Monday, September 23, 2019
Wednesday, September 18, 2019
Kathleen Noonan, Jonathan Lipson & Bill Simon have published Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation, 94 Ind. L.J. 545 (2019). Here’s the abstract:
Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.
This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.
Monday, September 16, 2019
As covered earlier, Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary of Charles Alan Wright & Arthur Miller’s Federal Practice & Procedure treatise.
The first three episodes have now been posted:
- Episode 1: Building the Wright & Miller Treatise (Arthur Miller & Jean Maess)
- Episode 2: The Evolution & Future of Class Actions (Arthur Miller & Mary Kay Kane)
- Episode 3: The Evolution & Future of Personal Jurisdiction & Pleadings (Arthur Miller, Ben Spencer & Adam Steinman)
Friday, September 13, 2019
Today, the Second Circuit issued its decision in Citizens for Responsibility and Ethics in Washington v. Trump, a lawsuit against President Trump alleging violations of the Emoluments Clauses of the U.S. Constitution. Judge Leval’s majority opinion begins:
Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant Opportunities Center United (“ROC”), a non‐partisan, member‐based organization of restaurants and restaurant workers—appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.) dismissing their complaint against Defendant Donald J. Trump, the President of the United States, for lack of subject matter jurisdiction. The complaint seeks declaratory and injunctive relief for the President’s alleged violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution. The President moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court granted the motion, concluding that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and their suit is barred by the political question doctrine. For the reasons below, we vacate the judgment and remand for further proceedings.
Judge Walker authored a dissenting opinion.
Thursday, September 12, 2019
The Supreme Court’s order stays the district court’s preliminary injunction against the Trump administration’s recent restrictions on asylum eligibility. The order states:
The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.
Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. She concludes:
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
Tuesday, September 10, 2019
Brian Soucek & Remington Lamons have published Heightened Pleading Standards for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875 (2019). Here’s the abstract:
In over a thousand cases, federal district courts have considered whether the heightened pleading standards imposed on plaintiffs in Twombly and Iqbal also apply to the affirmative defenses raised in defendant’s answers. Courts are split, and alongside the usual textual and policy arguments they offer, a less expected consideration is often raised: the fact that a majority of other courts have decided the same way. Court-counting precedent, as we call this kind of reasoning, requires justification, not least because—as we find here—judges get their count wrong a full third of the time.
This Article—based on a study of 1,141 federal opinions decided in the ten years after Twombly—does two things. It provides the first comprehensive answer to an important doctrinal question: what pleading standard do federal courts apply to defendants—and how has that standard varied over time and across the country? Second, the Article reveals that judges deciding this issue have engaged in court-counting a surprising 27% of the time. Given the previously unacknowledged importance of court-counting precedent in the lower federal courts, this Article asks whether and when it is warranted.
Thursday, September 5, 2019
Wednesday, September 4, 2019
Just in time for the new semester, Michael Green (William & Mary) has posted The Erie Doctrine: A Flowchart to SSRN.
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.
Today on the Courts Law section of JOTWELL is Marin Levy’s essay, Confronting Online Advocacy. Marin reviews Jeff Fisher & Alli Larsen’s recent article, Virtual Briefing at the Supreme Court, 109 Cornell L. Rev. (forthcoming 2019).
Tuesday, September 3, 2019
Symposium: “Class Actions, Mass Torts, and MDLs: The Next 50 Years” (Lewis & Clark Law School, November 2019)
The Pound Civil Justice Institute and Lewis & Clark Law School are co-sponsoring a symposium entitled Class Actions, Mass Torts, and MDLs: The Next 50 Years.
It will take place at Lewis & Clark Law School in Portland, Oregon on November 1 & 2, 2019.
You can register to attend the symposium here. It’s free for judges, law clerks, academics, law students, and public officials.