Thursday, April 30, 2020
The Court will provide a live audio feed of the arguments to FOX News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms.
The network pool will distribute the teleconference live audio feed to Pool 6 for network subscribers. Media organizations not included in the network pool may access the AP live audio feed via an AP website. For more information, media organizations may contact Jack Auresto, AP Washington deputy bureau chief, at 202-304-4891. C-SPAN will livestream the audio of all of the teleconference oral arguments on television, online at C-SPAN.org, and on the free C-SPAN Radio app.
The oral argument audio and a transcript of the oral arguments will be posted on the Court’s website following oral argument each day.
Wednesday, April 29, 2020
SCOTUS asks for supplemental briefing on the political question doctrine and justiciability in Trump documents cases
Among the Supreme Court’s October Term 2019 cases that will be argued remotely in the coming weeks are two cases relating to Congress’s attempt to obtain documents from President Trump’s banks and accountant (Trump v. Mazars USA & Trump v. Deutsche Bank AG). Those cases are set for oral argument on Tuesday, May 12.
Monday’s order list directed the parties to file “supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” Stay tuned!
Tuesday, April 28, 2020
Yesterday the Supreme Court adopted an amendment to the Federal Rules of Civil Procedure (covered earlier here) and transmitted it to Congress. This amendment would add to Rule 30(b)(6) (the provision for a subpoena or notice of deposition directed to an organization) a duty to confer about the matters for examination. It would add the following language: “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.”
Here is the full Rules Package that has been transmitted to Congress.
Monday, April 27, 2020
Today the Supreme Court issued its decision in New York State Rifle & Pistol Assn., Inc. v. City of New York, a case challenging New York City’s rule on transporting firearms (covered earlier here). The rule was amended after certiorari was granted, and today’s per curiam opinion finds that the “claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.” The Court remands the case for the lower courts to consider claims the plaintiffs may have regarding the City’s new rule, as well as whether the plaintiffs may add a claim for damages with respect to the old rule.
Justice Kavanaugh authors a concurring opinion.
Justice Alito authors a dissenting opinion, joined in full by Justice Gorsuch and in part by Justice Thomas, arguing that the case should not have been dismissed as moot and that the City’s rule violated the Second Amendment.
With everyone stuck at home, Suzanna Sherry and I are starting a new Civil Procedure workshop, modeled on (and administered through the website of) Ed Cheng’s Unavailability Workshops on Evidence. We will meet via Zoom for 30 minutes on Tuesdays at 3 pm EDT, 2 pm CDT, 1 pm MDT, and noon PDT, starting on May 5. The meeting will be kept open after 30 minutes in case people still want to talk.
Each workshop will be moderated by Suzanna and me, and will feature a guest speaker. The speaker will focus on one FRCP or topic and talk about such things as current trends or controversies, interesting factoids, and/or teaching tips. Audience participation is encouraged, and there will also be Q&A.
The format is emphatically informal. Dress is casual, no prep is necessary, and if you need to step out because your kids are fighting or because the dog is barking, no worries, because we’re all in the same boat.
The workshop is open to the entire civil procedure teaching community. If you have new colleagues joining you this fall who will be teaching civil procedure, please feel free to share this information with them.
If you are interested, please register at www.unavailabilityworkshop.com (be sure to register for Civ Pro, not Evidence!) so that we can send you the Zoom meeting ID and password when the time comes. The website also contains additional logistic information on how to connect to the teleconference (e.g., you do not need a Zoom account, but you do need to download the app).
Our first speaker, on May 5, will be Alexi Lahav (Connecticut) who will be discussing Bristol-Myers Squibb: Going Forward.
Wednesday, April 22, 2020
This week’s Supreme Court decision in Ramos v. Louisiana will primarily be of interest to criminal law/procedure folks: the main takeaway is that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But there are some really interesting federal courts/procedure issues as well.
As an initial matter, Ramos has an opinion breakdown that is sure to intrigue SCOTUS head-counters:
GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.
In its broadest strokes, the decision is an unusual 6-3 split: Gorsuch, Breyer, Ginsburg, Sotomayor, Kavanaugh, and Thomas vote in favor of the unanimous-jury requirement; Alito, Roberts, and Kagan dissent.
Ramos also prompts an important retroactivity question. Gorsuch, Ginsburg, Breyer & Sotomayor (in Part IV-B-2 of the Gorsuch opinion) recognize that they can’t formally decide the retroactivity issue in Ramos itself: “Whether the right to jury unanimity applies to cases on collateral review is a question for a future case where the parties will have a chance to brief the issue and we will benefit from their adversarial presentation.” But they note that: “[u]nder Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review”; “Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it”; and the Teague test “is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments.” Justice Kavanaugh is more aggressive on the retroactivity point in his concurring opinion: “assuming that the Court faithfully applies Teague, today’s decision will not apply retroactively on federal habeas corpus review and will not disturb convictions that are final.” (Ramos would, of course, apply to convictions that are currently on direct appeal.)
Finally, the Ramos decision confronts stare decisis. The key question—and the crux of the disagreement between the justices in the majority and those in dissent—is whether the Court should overrule its 1972 decision in Apodaca v. Oregon, which had upheld state convictions based on non-unanimous jury verdicts. But there’s an intriguing threshold issue that the Ramos opinions address: what, if anything, was the precedential content of Apodaca in the first place? (In general, this content-identification question is an aspect of stare decisis that gets less attention than the question of when precedent should be overruled—for my own thoughts, see here, here, and here.) As for Apodaca, this inquiry is complicated by the fact that Apodaca was a 4-1-4 decision: a four-justice plurality found that the Sixth Amendment did not require unanimity; Justice Powell concurred on the basis that the Sixth Amendment required unanimity but that this aspect of the Sixth Amendment was not applicable against the states; and the Apodaca dissenters would have required state convictions to be based on unanimous verdicts.
There’s lots of interesting stuff in the Ramos opinions on this content-identification question, including what role the Marks rule plays for a decision like Apodaca. To summarize, Gorsuch, Ginsburg, and Breyer (in Part IV-A of the Gorsuch opinion) reason that Apodaca did not create a “governing precedent,” because the unusual breakdown Apodaca deprived it of any “ratio decidendi” that would “allow it to have life and effect in the disposition of future cases.” Kavanaugh disagrees on this point, most forcefully in footnote 6 of his concurring opinion, writing that Apodaca’s “bottom-line result” that “state criminal juries need not be unanimous” was binding precedent. Alito, Roberts, and Kagan also treat Apodaca as creating a binding precedent; Part II of Alito’s dissenting opinion begins: “It is remarkable that it is even necessary to address this question, but in Part IV-A of the principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: ‘Really?’”
Tuesday, April 21, 2020
There were some interesting jurisdictional issues in yesterday’s Supreme Court decision in Atlantic Richfield Co. v. Christian.
First, the Court ruled that the Montana Supreme Court’s ruling was a “final judgment” that the Supreme Court had jurisdiction to review under 28 U.S.C. § 1257, even though the Montana court’s ruling allowed the case to proceed to trial. Chief Justice Roberts’ majority opinion reasoned that the Montana Supreme Court had “exercised review in this case through a writ of supervisory control” and that “[u]nder Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal.”
Second, the Supreme Court found that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) did not forbid state courts from exercising jurisdiction over actions based on state law. CERCLA “deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law.” Chief Justice Roberts reasoned:
Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. 42 U. S. C. §9613(b). This case, however, does not “arise under” the Act. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916).4
Footnote 4 clarifies:
There is a “special and small category of cases” that originate in state law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation marks omitted). To qualify for this narrow exception, a state law claim must “necessarily raise” a federal issue, among other requirements. Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 (2009).
Monday, April 20, 2020
Friday, April 17, 2020
Might be just a coincidence, but there was a similar theme in two Law360 stories this week...
Put On A Shirt For Video Hearings, Judge Tells Attys. Here’s the letter from Broward County Judge Dennis Bailey.
Atty Who Depantsed At Court Security Check Fights DQ Bid. Here are some of the documents:
Thursday, April 16, 2020
Yesterday a Sixth Circuit panel issued its decision in In re National Prescription Opiate Litigation, granting the pharmacy defendants’ petition for a writ of mandamus regarding the district court’s order allowing the counties to amend their complaints to add new claims in advance of an upcoming bellwether trial. Judge Kethledge’s opinion begins:
The rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case. Nothing in § 1407 provides any reason to conclude otherwise. Moreover, as the Supreme Court has made clear, every case in an MDL (other than cases for which there is a consolidated complaint) retains its individual character. That means an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.
The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does. The petitioners seek a writ of mandamus, on grounds that, in three instances, the district court has either disregarded or acted in flat contradiction to those Rules. We grant the writ.
Monday, April 13, 2020
Today the Supreme Court issued a press release stating: “The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases.”
Those cases are:
18-9526, McGirt v. Oklahoma
19-46, United States Patent and Trademark Office v. Booking.com B.V.
19-177, Agency for International Development v. Alliance for Open Society International, Inc.
19-267, Our Lady of Guadalupe School v. Morrissey-Berru, and 19-348, St. James School v. Biel
19-431, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and 19-454, Trump v. Pennsylvania
19-465, Chiafalo v. Washington
19-518, Colorado Department of State v. Baca
19-631, Barr v. American Association of Political Consultants, Inc.
19-635, Trump v. Vance
19-715, Trump v. Mazars USA, LLP, and 19-760, Trump v. Deutsche Bank AG
It remains to be seen what will happen with other postponed cases from the March and April calendars.
Thursday, April 9, 2020
Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, The Wild, Wild West for Low Wage Workers with Wage and Hour Claims. Suja reviews Llezlie Green’s recent article, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019).
Wednesday, April 1, 2020
Colorado Law's "Women's Enfranchisement: Beyond the 19th Amendment" Conference Moved Online (April 3)
Here’s an updated announcement:
Please join Colorado Law, in partnership with the Colorado Women’s Bar Association, for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which will be taking place remotely on Friday April 3rd, 8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits.
2020 will mark the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement as well as the social and economic empowerment of women more broadly.
Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference.
For more information on the panels and speakers please visit the CU Law Rothgerber event page. We look forward to sharing this occasion with you!