Wednesday, October 23, 2019
Today the U.S. Court of Appeals for the Second Circuit heard oral argument in Trump v. Vance, which involves Donald Trump’s attempt to enjoin a New York subpoena seeking documents—including Trump’s financial and tax records—from his accounting firm.
Here’s a link to the audio of today’s argument.
And here is the district court’s opinion below (reported at 395 F. Supp. 3d 283).
Thursday, October 17, 2019
Now on the Courts Law section of JOTWELL is Pam Bookman’s essay, New Courts, New Perspectives. Pam reviews two recent articles: Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, Va. J. Int’l L. (forthcoming 2020); and Will Moon, Delaware’s New Competition, Nw. U. L. Rev. (forthcoming 2020).
Friday, October 11, 2019
Sergio Campos has published The Uncertain Path of Class Action Law, 40 Cardozo L. Rev. 2223 (2019). Here’s the abstract:
For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This Article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.
Monday, October 7, 2019
Today the U.S. Court of Appeals for the Second Circuit issued a unanimous decision in In re del Valle Ruiz. The case involves discovery applications under 28 U.S.C. § 1782, which provides: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
Judge Hall’s opinion, joined by Judges Parker and Droney, begins:
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after a government‐forced sale. Petitioners, a group of Mexican nationals and two investment and asset‐management firms, initiated or sought to intervene in various foreign proceedings contesting the legality of the acquisition.
Petitioners then filed in the Southern District of New York two applications under 28 U.S.C. § 1782 seeking discovery from Santander and its New York‐based affiliate, Santander Investment Securities Inc. (“SIS”), concerning the financial status of BPE. The district court (Ramos, J.) denied the applications for the most part, concluding that it lacked personal jurisdiction over Santander. The court granted discovery against SIS and in doing so rejected Santander’s argument that § 1782 does not allow for extraterritorial discovery. These consolidated appeals follow.
We are first asked to delineate the contours of § 1782’s requirement that a person or entity “resides or is found” within the district in which discovery is sought. We hold that this language extends § 1782’s reach to the limits of personal jurisdiction consistent with due process. We nonetheless conclude that Santander’s contacts with the Southern District of New York were insufficient to subject it to the district court’s personal jurisdiction.
We are next tasked with deciding whether § 1782 may be used to reach documents located outside of the United States. We hold that there is no per se bar to the extraterritorial application of § 1782, and the district court may exercise its discretion as to whether to allow such discovery. We conclude that the district court acted well within its discretion here in allowing discovery from SIS.
Friday, October 4, 2019
The Friday Before First Monday: SCOTUS Cert Grant in Louisiana Abortion Case Presents Questions About Standing
Today the Supreme Court granted petitions for certiorari arising from a challenge to Louisiana’s abortion regulations. The cases are June Medical Services LLC v. Gee (18-1323), and Gee v. June Medical Services, LLC (18-1460).
The first petition asks whether the Louisiana law is unconstitutional, especially in light of the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The second petition is about standing, presenting the following questions:
1. Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?
2. Are objections to prudential standing waivable (per the Fourth, Fifth, Seventh, Ninth, Tenth, and Federal Circuits) or non-waivable (per the D.C., Second, and Sixth Circuits)?
Ann Juliano has published The Games We Play, 63 St. Louis U. L.J. 453 (2019). The article begins:
We Civil Procedure professors like to shake our heads and grimly note the unique difficulties we face in teaching Procedure to first year students. We use phrases like “alien and incomprehensible,” “abstract and alienating,” and “not the most spellbinding course in the first-year curriculum.” Students approach the “pamphlet” of the Federal Rules of Civil Procedure (“the Rules”) with trepidation and a weary sigh. To fight against this predisposition and to demonstrate to students that they have read, interpreted, and employed “rules” for many years, I now begin the semester by playing board games. By spending some time in the first class with Monopoly, Jenga, and several other games, I hope to accomplish many of the objectives suggested in the pedagogical research. More specifically, by playing card games or Apples to Apples, I am able to raise important points about rules and how we interpret them while setting a less formal, collegial tone for the semester.
Tuesday, October 1, 2019
The Hastings Law Journal has published an issue dedicated to Geoff Hazard, featuring articles and tributes by David Faigman, Ben Barton & Deborah Rhode, Antonio Gidi, Neil Andrews, Loïc Cadiet, Ed Cooper, Judge William Fletcher, William Hodes, Peter Jarvis, Mary Kay Kane, Susan Koniak, Evan Lee, John Leubsdorf, Rick Marcus, Koichi Miki, Judge Anthony Scirica, Cathie Struve, Michele Taruffo, and Mike Traynor.