Saturday, February 29, 2020
Call for Papers: 12th Annual Junior Faculty Federal Courts Workshop (Wash U, St Louis, Sept 11-12, 2020)
Washington University School of Law in St. Louis will host the Twelfth Annual Junior Faculty Federal Courts Workshop on September 11–12, 2020. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.
The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin on the morning of Friday, September 11, and conclude by early afternoon on Saturday, September 12. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.
The workshop will take place at WashU Law, which is located 15 minutes from STL airport. The School of Law will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at Washington University’s Knight Center, which is next door to the School of Law. Those wishing to present a paper must submit an abstract to firstname.lastname@example.org by March 30, 2020. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.
Questions about the conference may be directed to Prof. Daniel Epps (email@example.com) or his assistant, Andrea Donze (firstname.lastname@example.org). Up-to-date information about the conference will be provided at https://law.wustl.edu/faculty-and-research/conferences-and-workshops/12th-annual-junior-faculty-federal-courts-workshop/
Friday, February 28, 2020
Yesterday, a Ninth Circuit panel issued its decision in United States v. Arpaio. Judge Bybee’s opinion begins:
Defendant-Appellant Joseph Arpaio, the former Sheriff of Maricopa County, Arizona, was found guilty of criminal contempt in a bench trial for willfully violating a preliminary injunction prohibiting him from enforcing federal civil immigration law. After entry of the verdict, but before the court could sentence Arpaio, he was granted a pardon by the President. Arpaio asked the district court to vacate the verdict and dismiss the criminal case against him with prejudice. The district court granted the motion to dismiss the case with prejudice, but refused to vacate the verdict. Arpaio appeals that decision, arguing that vacatur was required under the Supreme Court’s decision in United States v. Munsingwear, Inc., 340 U.S. 36 (1950). Because we find that Munsingwear does not apply in this case, we affirm the judgment of the lower court.
Quoting the Supreme Court’s Camretta v. Greene decision, the panel noted that the Munsingwear rule’s underlying purpose “is to prevent an unreviewable decision from spawning any legal consequences, so that no party is harmed by what we have called a ‘preliminary’ adjudication.” For Arpaio, however, “vacatur would not further the purposes of Munsingwear because the district court’s verdict finding Arpaio guilty of criminal contempt has no legal consequences.” Summarizing its analysis, the panel wrote:
The “general rule” for issue preclusion provides that a “‘determination [in a prior case] is conclusive in a subsequent action between the parties’” only “‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.’” B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148 (2015) (emphasis added) (quoting Restatement (Second) of Judgments § 27, at 250 (Am. Law Inst. 1980)). The verdict Arpaio seeks to vacate satisfies neither of these conditions. First, although the verdict would have been essential to any final judgment of conviction, there was no final judgment of conviction here, because Arpaio was never sentenced. Second, for the final judgment that was entered in this case—a dismissal of the criminal contempt charge—the verdict was not only not essential to the judgment, but was inconsistent with it.
Thursday, February 27, 2020
Bob Klonoff has published Federal Multidistrict Litigation in a Nutshell (West Academic). The preface begins:
This text is for students taking courses in complex litigation, advanced civil procedure, or mass torts. It is also designed as a concise book for members of the bench and bar who are handling multidistrict litigation cases. Its focus is on all aspects of federal multidistrict litigation (MDL), including statistics on MDL cases; comparisons with other aggregation devices (such as class actions); the decision of the Judicial Panel on Multidistrict Litigation (the Panel) to centralize cases (including the standards for centralization and the selection of the MDL district court and judge); appellate review of Panel decisions; tag-along cases; the role of the MDL transferee judge (including case management, designating lead lawyers and committees, deciding motions, conducting bellwether trials, overseeing settlements, and awarding attorneys’ fees); choice-of-law issues in MDLs; personal jurisdiction and venue issues; remand of transferred cases; federal/state coordination (including state MDL statutes); and proposals for reform of MDL practice.
Tuesday, February 25, 2020
The Supreme Court handed down a number of interesting opinions this morning:
Rodriguez v. FDIC, a unanimous opinion authored by Justice Gorsuch, rejected the use of federal common law to resolve competing claims to a tax refund.
Hernández v. Mesa was a 5-4 decision finding no Bivens damages remedy for claims arising from a cross-border shooting. Justice Alito writes the majority opinion (joined by Roberts, Thomas, Gorsuch & Kavanaugh) and Justice Ginsburg writes the dissent (joined by Breyer, Sotomayor & Kagan). Justice Thomas also writes a concurring opinion, joined by Gorsuch.
Monasky v. Taglieri addresses (among other things) the standard of appellate review for a district court’s determination of a child’s country of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction. Justice Ginsburg writes the majority opinion, joined in full by Roberts, Breyer, Sotomayor, Kagan, Gorsuch & Kavanaugh and in part by Justice Thomas. Justice Thomas and Justice Alito write separate concurring opinions.
Monday, February 24, 2020
Today on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, A Return to First Principles: Class Actions & Conservatism. Jasminka reviews Brian Fitzpatrick’s recent book, The Conservative Case for Class Actions.
Tuesday, February 18, 2020
An interesting ruling last week from Judge Alsup of the U.S. District Court for the Northern District of California. Judge Alsup grants a petition to compel arbitration filed by 5,000+ DoorDash couriers. His order concludes:
For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.
Friday, February 14, 2020
Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York, an LBJ appointee, retired this week at the age of 98. (His decisions come up a lot in Complex Litigation class.)
Suja Thomas has posted on SSRN a draft of her article, The Customer Caste: Lawful Discrimination by Public Businesses. Here’s the abstract:
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.
Wednesday, February 12, 2020
Jonathan Nash and Michael Collins have posted on SSRN a draft of their article, The Certificate of Division and the Early Supreme Court. Here’s the abstract:
The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.
As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.
Friday, February 7, 2020
Today a D.C. Circuit panel (Judges Henderson, Tatel & Griffith) issued its decision in Blumenthal v. Trump. The per curiam opinion begins:
In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution’s Foreign Emoluments Clause (Clause). The district court’s denial of the President’s motion to dismiss begins with a legal truism: “When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a ‘Case’ or ‘Controversy’ under Article III of the United States Constitution, rather than a political dispute between the elected branches of government.” Blumenthal v. Trump, 335 F. Supp. 3d 45, 49–50 (D.D.C. 2018). Although undoubtedly accurate, the district court’s observation fails to tell the rest of the story, which story we set forth infra. Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.
Tuesday, February 4, 2020