Monday, August 31, 2020
We covered earlier the D.C. Circuit’s grant of a writ of mandamus in In re Flynn, which involves the federal government’s Rule 48(a) motion to dismiss the criminal charges against Michael Flynn. Today the en banc D.C. Circuit reversed course, denying Flynn’s request for a writ of mandamus by an 8-2 vote.
From the court’s per curiam opinion:
As to Petitioner’s first two requests—to compel the immediate grant of the Government’s motion, and to vacate the District Court’s appointment of amicus—Petitioner has not established that he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381. We therefore deny the Petition.
Friday, August 28, 2020
Last week the Second Circuit denied President Trump’s petition for en banc rehearing in CREW v. Trump. This left in place the panel decision (953 F.3d 178) reversing the district court’s dismissal for lack of standing.
Here’s a link to the en banc ruling, which features several separate opinions and statements:
José A. Cabranes, Circuit Judge, dissents by opinion from the denial of rehearing en banc.
Steven J. Menashi, Circuit Judge, joined by Debra Ann Livingston and Richard J. Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
John M. Walker, Jr., Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Pierre N. Leval, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Wednesday, August 26, 2020
Judge Patrick Higginbotham, Judge Lee Rosenthal, and Professor Steve Gensler have published Better by the Dozen: Bringing Back the Twelve-Person Civil Jury in the latest issue of Judicature. Their article begins:
A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers. To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.
History. Social science. Civics. Common sense. That’s a powerful quartet. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.
Tuesday, August 25, 2020
Saturday, August 22, 2020
This week the Ninth Circuit issued a 2-1 decision in Rittmann v. Amazon.com, addressing an arbitration issue similar to the one recently decided by the First Circuit last month (covered earlier here). The Ninth Circuit case involves drivers who participate in the “AmFlex program,” under which “Amazon contracts with individuals to make ‘last mile’ deliveries of products from Amazon warehouses to the products’ destinations using the AmFlex smart phone application.” Like the First Circuit, the Ninth Circuit concludes that Amazon’s arbitration provision is not covered by the Federal Arbitration Act (FAA) and is not enforceable.
Judge Milan Smith authors the majority opinion (joined by Judge Randy Smith, no relation), and Judge Bress dissents. The majority concludes that the AmFlex last-mile delivery providers are exempt from the FAA under 9 U.S.C. § 1 because they are “transportation workers ‘engaged in foreign or interstate commerce’” even though they do not cross state lines: “The plain meaning of the relevant statutory text, case law interpreting the exemption’s scope and application, and the construction of similar statutory language all support the conclusion that transportation workers need not cross state lines to be considered ‘engaged in foreign or interstate commerce’ pursuant to § 1.”
Wednesday, August 19, 2020
The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:
The Pound Civil Justice Institute is pleased to offer again this year our award designed to recognize current research and writing on civil justice issues, and to encourage such research in the future. The Civil Justice Scholarship Award will be presented at Pound’s winter Fellows receptions. The nomination deadline is Monday, September 14, 2020; the award will be presented on Sunday, February 7, 2021 in Palm Springs, California.
We will recognize two works annually (as possible) – one book and one article. Law school deans may make one nomination for each category (book and article) for professors in their school. Self-nominations are also permitted.
Monday, August 17, 2020
Earlier this month, the Federal Circuit issued its decision in National Veterans Legal Services Program v. United States. Judge Hughes’ opinion begins in the style of Goldilocks:
These interlocutory cross-appeals challenge the district court’s interpretation of a statutory note to 28 U.S.C. § 1913 permitting the federal judiciary to charge “reasonable fees” for “access to information available through automatic data processing equipment.” Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right. We therefore affirm and remand for further proceedings.
Here’s coverage from Debra Cassens Weiss (ABA Journal).
(H/T Roger Baron)
Friday, August 14, 2020
We covered earlier the new virtual series Social Justice in Action, brought to you by the Society of American Law Teachers (SALT). Here are details on three upcoming sessions:
Promoting Equity and Inclusion in Online Teaching
– August 21, 2020 3pm ET - 4pm ET –
Register here: https://bit.ly/2DbiMli
Goldie Pritchard, Director, Academic Success Program, Michigan State University College of Law
Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University
Carwina Weng, Clinical Professor of Law, Indiana University Maurer School of Law
Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law
If you have questions for our panelists in advance of the event, please submit them here: https://forms.gle/5PuV1LSznYKWQ4Gc9
Racialized Trauma and Fatigue Among Academic Activists
– September 18, 2020 3pm ET - 4pm ET –
Register here: https://bit.ly/2BDeToN
Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles
Carla Pratt, Dean, Washburn University School of Law
Rosario Lozada, Associate Professor of Legal Skills and Values, FIU Law
Anti-Racist Hiring Practices
– October 16, 2020 3pm ET - 4pm ET –
Register here: https://bit.ly/307SZ6M
(H/T: Allyson Gold)
Tuesday, August 11, 2020
Now on the Courts Law section of JOTWELL is my essay, No Laughing Matter. I review a recent article by Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019).
Monday, August 10, 2020
The Ninth Circuit recently issued its decision in Judd v. Weinstein. Judge Murguia’s opinion reverses the district court’s dismissal of Ashley Judd’s state-law sexual harassment claim against producer Harvey Weinstein.
In doing so, the court confronts an issue of “first impression under California law” and proceeds to “predict how the California Supreme Court would resolve it.” The court also finds that Judd’s complaint passes muster under Iqbal, despite Weinstein’s argument that she failed to adequately allege a professional relationship at the time of the alleged harassment:
Judd sufficiently alleged a “business, service, or professional relationship” at the time of the alleged harassment: Judd alleged that she established a professional relationship with Weinstein after working on the 1995 Miramax film Smoke, and went to the Peninsula Hotel in hopes of building upon that existing relationship to discuss future professional endeavors. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Moreover, Judd alleged that “at the time of the harassment, [she] was discussing potential roles in films produced or distributed by Weinstein or Miramax.” This is more than enough to allege a professional relationship at the time of the alleged harassment.
(H/T: Aaron Caplan)
Thursday, August 6, 2020
The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.
Tuesday, August 4, 2020
Elizabeth Cabraser and I have posted on SSRN our recent article, What Is a Fair Price for Objector Blackmail? Class Actions, Objectors, and the 2018 Amendments to Rule 23, 24 Lewis & Clark L. Rev. 549 (2020). Here’s the abstract:
As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes — along with other on-the-ground developments — are important steps toward improving the class action settlement process.