Monday, December 30, 2019
The 2020 AALS Annual Meeting is happening in Washington, D.C. this week. Here is a full list of the various programs, and below are some panels that may be of particular interest (click the links for full details). Hope to see folks there!
Thursday, January 2, 2020
1:30 pm - 3:15 pm
AALS Discussion Group
The Role of Women as International, Regional, and National Judges
Saturday, January 4, 2020
7:00 am - 8:30 am
Federal Courts Business Meeting
8:30 am - 10:15 am
Overlooked Procedure: Rethinking Canonical Approaches to Civil Procedure
10:30 am - 12:15 pm
Conflict of Laws
Contracting Over Conflicts: Choice-of-Law Clauses, Forum Selection Clauses, Arbitration Clauses
1:30 pm - 3:15 pm
Federal Courts, Co-Sponsored by Immigration Law
Federal Courts at the Border
1:30 pm - 3:15 pm
Litigation and Remedies Joint Program, Co-Sponsored by Civil Rights
Litigating Voting Rights Remedies in the Trump Era
6:00 pm - 7:00 pm
AALS Presidential Program
A Conversation with U.S. Supreme Court Justice Ruth Bader Ginsburg
Sunday, January 5, 2020
8:30 am - 10:15 am
AALS Open Source Program
Federalism and the Relationship Between State and Federal Constitutional Law
Friday, December 20, 2019
Thursday, December 19, 2019
Fourth Circuit revives challenge to 2020 Census, reverses district court finding that claims under the Enumeration Clause are unripe
Today the Fourth Circuit issued its decision in NAACP v. Bureau of the Census. The district court had dismissed the plaintiffs’ claims under the Administrative Procedure Act (APA) and the Enumeration Clause. Judge Keenan’s opinion, joined by Chief Judge Gregory and Judge Richardson, reverses the district court’s dismissal of the Enumeration Clause claims.
From the introductory section:
This appeal addresses a challenge to the “methods and means” that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George’s County, Maryland; Prince George’s County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent “hard-to-count” communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. * * *
Upon our review, we hold that the plaintiffs’ APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court’s judgment dismissing those claims.
Nevertheless, mindful of the Supreme Court’s recent guidance affirming judicial review of “both constitutional and statutory challenges to census-related decision-making,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019), we conclude that the district court erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants’ alternative arguments for affirming the district court’s judgment. We therefore reverse the district court’s dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.
Chief Judge Gregory also authors a concurring opinion.
Friday, December 13, 2019
Yesterday the Fifth Circuit issued a per curiam opinion in In re: Chinese-Manufactured Drywall Products Liability Litigation. This appeal was brought by certain plaintiffs who had filed their claims after an initial class-wide settlement agreement. This lead to a subsequent agreement (the “New Claims Settlement Agreement”), which had “conferred to the District Court exclusive jurisdiction for the purpose of administering, supervising, construing and enforcing the Agreement.”
The Fifth Circuit panel (Judges Higginbotham, Stewart, and Engelhardt) dismissed the appeal for lack of jurisdiction, finding that these plaintiffs had waived their right to appeal: “In light of the explicit waiver in the New Class Settlement Agreement and the two additional and express waivers incorporated therein, we find that Appellants clearly and unequivocally waived their right to appeal.”
Wednesday, December 11, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Due Process and National Injunctions. Jim reviews Mila Sohoni’s recent article, The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review.
Tuesday, December 10, 2019
The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U. S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.
Although the majority criticizes a “general ‘discovery rule’” as a “bad wine of recent vintage,” it leaves open the possibility that “an equitable, fraud-specific discovery rule” can apply in particular cases:
This Court has noted the existence of decisions applying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, 559 U. S. 633, 644 (2010); Gabelli v. SEC, 568 U. S. 442, 450 (2013) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 10–11); Lozano v. Montoya Alvarez, 572 U. S. 1, 10–11 (2014); Credit Suisse Securities (USA) LLC v. Simmonds, 566 U. S. 221, 226–227 (2012); Young v. United States, 535 U. S. 43, 49–50 (2002). Rotkiske failed to preserve this issue before the Third Circuit, 890 F. 3d, at 428, and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing.
Justice Sotomayor authors a brief concurring opinion, emphasizing that a fraud-specific discovery rule is a “historical exception” that the Supreme Court has “long recognized and applied.”
Justice Ginsburg dissents. Although she states at the outset that “[g]enerally, I agree with the Court, the ‘discovery rule’ does not apply to the one-year statute of limitations contained in the Fair Debt Collection Practices Act (FDCPA),” she writes: “I do not agree that Rotkiske failed to preserve a fraud-based discovery rule argument in the Court of Appeals. . . . Nor do I agree that Rotkiske forfeited the issue by not raising it in his petition for certiorari.” Considering the merits of his statute of limitations argument, Justice Ginsburg explains:
Rotkiske’s FDCPA complaint, in my view, falls comfortably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intentionally serving process in a manner designed to prevent Rotkiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s untimely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
Wednesday, December 4, 2019
The Pound Civil Justice Institute has announced the winners of its 2020 Civil Justice Scholarship Award. From the announcement:
The Pound Civil Justice Institute has chosen the recipients of the Institute’s 2020 Civil Justice Scholarship Award: Professor Zachary D. Clopton (Northwestern) and Professor Adam N. Steinman (Alabama).
Professor Clopton, of Northwestern Pritzker School of Law, is honored for his article Procedural Retrenchment and the States, 106 Calif. L. Rev 411 (2018), in which he evaluated possible state-court and state-enforcement responses to the Roberts Court’s recent procedural decisions, and suggested further interventions by state courts and public enforcers that could offset the recent regression in access to justice.
Professor Steinman, of The University of Alabama School of Law, is honored for his article Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), in which he analyzed the United States Supreme Court’s recent decisions on personal jurisdiction in civil litigation, examined the situations where personal jurisdiction doctrine is most likely to threaten access to justice and the enforcement of substantive law, and proposed ways to work within the Court’s case law to preserve meaningful access and enforcement.
High Distinction for an Article: The Institute also recognized an article for high distinction among the nominations received: The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Geo. L. J. 559 (2017), by Professor Deborah Brake, of the University of Pittsburgh School of Law. In an interesting and well-written article addressing one of the most frustrating aspects of employment discrimination law, pay discrimination, Brake argues for using recent developments in the law of pregnancy discrimination to shift the understanding of discriminatory intent in the jurisprudence of equal pay.”
On a personal note, I’m very grateful to be chosen for this award, and to be recognized alongside Zach and Deborah as well as last year’s honorees Alexandra Lahav, Suja Thomas, and Myriam Gilles. Congrats to all, and sincere thanks to the Pound Civil Justice Institute!
Tuesday, December 3, 2019
Mootness played a major role in yesterday’s Supreme Court oral argument in New York State Rifle & Pistol Association Inc. v. City of New York.
Here’s the oral argument transcript.