Friday, July 31, 2020
Thursday, July 30, 2020
Bob Klonoff has posted drafts of two articles on SSRN: Class Action Objectors: The Good, the Bad, and the Ugly, which is forthcoming in the Fordham Law Review; and The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, which is forthcoming in the University of Missouri-Kansas City Law Review.
Here are the abstracts:
Tuesday, July 28, 2020
Today on the Courts Law section of JOTWELL is Jordan Singer’s essay, The Machinery of Justice. Jordan reviews Amnon Reichman, Yair Sagy & Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).
The Sixth Circuit will hear oral argument this morning (9:00 am EDT) in the Opioid MDL (In re: Nat’l Prescription Opiate Litigation, No. 19-4097 & 19-4099).
You can listen live to the audio at this link. Sitting on the panel are Judges Moore, Clay, and McKeague.
Friday, July 24, 2020
Last week, the Second Circuit issued its decision in La Liberte v. Reid. Judge Jacobs’ opinion addresses a thorny question that has divided the circuits—whether state anti-SLAPP statutes apply in federal court under the Erie doctrine/Rules Enabling Act framework. The specific state provision in this case is California’s “special motion to strike” procedure. Here are some highlights:
The test is whether “a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the [special motion to strike].” Abbas, 783 F.3d at 1333 (alteration in original) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99 (2010)). If so, the Federal Rule governs, unless it violates the Rules Enabling Act. Id. Applying that test, we first conclude that the special motion to strike in California’s anti-SLAPP statute answers the same question as Federal Rules 12 and 56.
* * *
Since Rules 12 and 56 answer the same question as California’s special motion to strike, they “govern in diversity cases in federal court, unless Rules 12 and 56 violate the Rules Enabling Act.” Abbas, 783 F.3d at 1336. “So far, the Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.” Id. Neither Reid nor amici curiae invite us to deviate. Still, we briefly address the question for the sake of completeness. The test is “whether a rule really regulates procedure,--the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Like the Eleventh Circuit, “[w]e have little difficulty concluding” that Rules 12 and 56 “comply with the Rules Enabling Act,” particularly because they “‘affect only the process of enforcing litigants’ rights and not the rights themselves.’” Carbone, 910 F.3d at 1357 (second alteration in original) (quoting Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 8, (1987)). Accordingly, federal courts must apply Rules 12 and 56 instead of California’s special motion to strike.
H/T: Howard Wasserman
Tuesday, July 21, 2020
First Circuit Finds Amazon's Arbitration Provision Unenforceable in Class Action by Last-Mile Drivers
On Friday, the First Circuit issued its decision in Waithaka v. Amazon.com, Inc. Judge Lipez’s decision begins:
This putative class action requires us to decide whether employment contracts of certain delivery workers -- those locally transporting goods on the last legs of interstate journeys -- are covered by the Federal Arbitration Act ("FAA" or the "Act"), given its exemption for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. * * * After close examination of the text and purpose of the statute and the relevant precedent, we now hold that the exemption encompasses the contracts of transportation workers who transport goods or people within the flow of interstate commerce, not simply those who physically cross state lines in the course of their work.
Plaintiff-appellee Bernard Waithaka, a so-called "last mile" delivery driver for [Amazon] falls within this category of transportation workers whose contracts are exempt from the FAA. Hence, we conclude that the FAA does not govern the enforceability of the mandatory arbitration provision of his employment agreement with appellants. Because that provision prohibits proceeding on a class basis, either in the arbitral or judicial forum, we also agree with the district court that the arbitration provision is unenforceable under state law.
Monday, July 13, 2020
The Society of American Law Teachers (SALT) has shared the following information about a new virtual series, Social Justice in Action:
SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.
The first session, Incorporating Anti-Racism Frameworks into Core Law School Classes, will be on July 30, 2020 at 3pm ET.
To attend, please register in advance at: https://msu.zoom.us/meeting/register/tJYpf-msqzgiG91326VGLxmLZpW9GUHGbiCn
After registering, you will receive a confirmation email containing information about joining the meeting.
See below for information on upcoming panels. More to come!
Friday, July 10, 2020
Below are two announcements from the AALS Section on Federal Courts:
AALS Federal Courts Section - Daniel J. Meltzer Award: Call for Nominations
The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer. The Award recognizes a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts.
Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools, have not previously won the award, and have not served as an officer of the Federal Courts Section in the two previous years. It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years.
Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law (firstname.lastname@example.org). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020. Nominations will be reviewed by a prize committee consisting of Professors Seth Davis (Berkeley), Gillian Metzger (Columbia), James Pfander (Northwestern), and Carlos Vázquez (Georgetown). If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2021 AALS Annual Meeting.
AALS Federal Courts Section - Best Untenured Article on Federal Jurisdiction: Call for Nominations
The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2021 AALS Annual Meeting.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2020 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2020), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law (email@example.com). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020. Nominations will be reviewed by a prize committee comprised of Professors Samuel Bray (Notre Dame), Seth Davis (Berkeley), Allison Orr Larsen (William & Mary), Marin Levy (Duke), and Leah Litman (Michigan), with the result announced at the Federal Courts section program at the 2021 AALS Annual Meeting.
Thursday, July 9, 2020
This morning featured some important decisions from the Supreme Court, but everyone knows the real action is at the after party. Here are some interesting grants of certiorari from this afternoon’s order list:
AMG Capital Management, LLC v. FTC and FTC v. Credit Bureau Center, LLC involve the extent to which § 13(b) of the Federal Trade Commission Act’s authorization for district courts to issue an “injunction” permits monetary relief such as restitution or the return of unlawfully obtained funds.
Uzuegbunam v. Preczewski presents the question “whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.”
Here’s where to go if you want to find the cert-stage briefing and follow the merits briefs as they come in:
Monday, July 6, 2020
Today the Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., holding that the government-debt exception to the TCPA’s prohibition on robocalls to cell phones violated the First Amendment. The Court was sharply divided, as the breakdown indicates:
KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.
The lack of a majority opinion will surely be of interest to Marks-rule enthusiasts. Readers may also be interested in the Justices’ severability analysis. Seven Justices (Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan & Kavanaugh) conclude that the unconstitutional government-debt exception is severable from the rest of the TCPA. Gorsuch’s opinion, joined by Thomas, disagrees: “Respectfully, if this is what modern ‘severability doctrine’ has become, it seems to me all the more reason to reconsider our course.”
Allan Erbsen has posted on SSRN a draft of his article, A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law, 10 U.C. Irvine L. Rev. (forthcoming 2020). Here’s the abstract:
This Article proposes overhauling the Supreme Court’s approach to choice of law under Erie and Hanna. It develops three primary points.
First, Hanna’s “unguided” “twin aims” of Erie test for resolving conflicts between federal common law and state law is irredeemably flawed. The test is a canon of interpretation masquerading as a choice-of-law rule and fails at both tasks. The Hanna approach:
(1) relies on an arbitrary distinction between federal common law and statutory law that elides the indeterminate boundary between lawmaking and interpretation;
(2) fails to directly confront questions about federal common law’s validity and scope;
(3) cannot rely on the oft-cited but inapposite Rules of Decision Act; and
(4) ignores the judiciary’s authority to fill gaps in procedural codes with federal common law.
This Article is also the first to extensively explore how FRCP 83’s authorization of gap-filling undermines Hanna’s approach to choice of law.
Second, preemption doctrine implementing the Supremacy Clause should fill the choice-of-law role that courts mistakenly assign to Hanna. Under the Supremacy Clause, valid federal law — including federal common law — preempts state law on matters within the federal law’s scope. The “unguided” Hanna inquiry is misguided because it invents a distracting alternative to preemption analysis.
Third, reframing choice of law in terms of preemption spotlights policy questions that courts applying Hanna overlook. Preemption can occur only when a particular federal law is a valid exercise of federal lawmaking power and encompasses a disputed issue. Courts considering whether to apply federal law — including federal common law — must therefore assess the federal law’s validity and breadth. Relevant questions include:
(1) whether the federal government has authority to create law covering the issue;
(2) if so, which federal institutions — Congress or the judiciary — can create law; and
(3) whether federal courts should interpret the ensuing federal law broadly or narrowly to embrace or avoid conflict with state law.
These sensitive policy questions would benefit from direct attention and should not be blurred with Hanna’s tangents.
This approach would make choice of law analysis more coherent, enhance understanding of federal common law, and require courts to directly engage the federalism and separation of powers concerns at Erie’s core.
Friday, July 3, 2020
The Akron Law Review has published its symposium issue on federal appellate procedure, featuring contributions by Andrew Pollis, Joan Steinman, Andra Robertson & Greg Hilbert, Mike Solimine, Bryan Lammon, and Adam Steinman.
Unfortunately we were unable to gather together for the in-person symposium because of the COVID-19 pandemic. But it’s great to see the issue “in print.” Thanks to the law review editors for their terrific work!
Thursday, July 2, 2020
Today’s Supreme Court order list was a big one for the international side of civil procedure and federal courts. The Court granted certiorari in four interesting cases:
Republic of Hungary v. Simon presents the following question: “May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies?”
Federal Republic of Germany v. Philipp presents two questions:
1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.
2) Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.
Nestlé USA, Inc. v. Doe I presents two questions:
1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute, 28 U.S.C. § 1350, may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.
2) Whether the Judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.
And Cargill Inc. v. Doe I presents two related questions:
1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in—and the plaintiffs’ suffered their injuries in—a foreign country.
2) Whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.
The Court has consolidated Nestlé and Cargill for briefing and oral argument.
Here’s where to go if you want to find the cert-stage briefing and follow the merits briefs as they come in:
Wednesday, July 1, 2020
Today on the Courts Law section of JOTWELL is Seth Endo’s essay, Charting the Interactions of Legal Tech and Civil Procedure. Seth reviews David Engstrom and Jonah Gelbach’s article, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. (forthcoming 2020).