Friday, February 26, 2021
Alabama Law Review Virtual Symposium (Friday, March 5): Ten Years of the Supreme Court's Personal Jurisdiction Revival
Next Friday, March 5, the Alabama Law Review will be hosting a virtual symposium (via Zoom) entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The program will run from 9:00am–3:30pm central time. You can register here if you would like to attend. Here is the announcement:
Personal jurisdiction—a court’s power to make binding judgments regarding the parties or property involved in a lawsuit—is a threshold issue in every civil action. It is also a matter of constitutional due process in which the Supreme Court, at various points in its history, has been deeply involved. However, for more than twenty years during the 1990s and 2000s, the Court remained silent—even as the nature of civil litigation, commerce, and society itself changed dramatically. That silence ended in 2011, with Goodyear and McIntyre, commencing a significant period of renewed interest by the Court. Ten years later, judges, lawyers, and legal scholars alike are continuing to analyze and debate the ramifications of these decisions.
On Friday, March 5, the Alabama Law Review will host a virtual symposium from 9:00 a.m. until 3:30 p.m. CST. The symposium, entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival, will explore the Court’s recent decisions and the questions they raise going forward. The symposium will feature renowned scholars, including a keynote address by Arthur Miller of New York University School of Law, and experienced practitioners, including Sean Marotta and Deepak Gupta, who argued the Ford cases—the Supreme Court’s latest foray into personal jurisdiction—this Term.
Other speakers include Robin Effron, Rich Freer, Maggie Gardner, Alexandra Lahav, Alan Morrison, Larry Solum & Max Crema, and Ben Spencer, as well as Alabama litigators Greg Cook, Diandra “Fu” Debrosse, Kim Martin, and Dave Wirtes.
Hope everyone can join us. It should be a fun, stimulating event. And maybe the Supreme Court itself will add to the excitement by handing down its decision in Ford next week too! (Can’t make any promises on that, though.)
Thursday, February 25, 2021
There’s a lot of interesting stuff in Justice Thomas’s opinion for the Court, but the basic takeaway is that the judgment in an FTCA suit against the federal government can trigger the judgment bar—and thereby preclude claims against the responsible government employees—even when the result of the FTCA suit is a dismissal for lack of subject-matter jurisdiction. In this case, the plaintiff’s tort claims against the federal government “failed to survive a Rule 12(b)(6) motion to dismiss,” meaning that “the United States necessarily retained sovereign immunity, also depriving the court of subject-matter jurisdiction.” As Justice Thomas puts it: “where, as here, pleading a claim and pleading jurisdiction entirely overlap, a ruling that the court lacks subject-matter jurisdiction may simultaneously be a judgment on the merits that triggers the judgment bar.”
The Supreme Court leaves open one important issue—whether the judgment bar applies to the dismissal of claims raised in the same lawsuit. In footnote 4, Justice Thomas leaves this issue for the Sixth Circuit to address on remand, and Justice Sotomayor writes a concurring opinion “to emphasize that, while many lower courts have uncritically held that the FTCA’s judgment bar applies to claims brought in the same action, there are reasons to question that conclusion.”
Thursday, February 18, 2021
Today on the Courts Law section of JOTWELL is Lou Mulligan’s essay, What Does a Textualist Look Like? Lou reviews a recent article by Thom Main, Jeff Stempel & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism.
Jeff Parness has posted Proposed Amendment to the Federal Civil Procedure Rule 27(c): Federal Presuit Information Preservation Orders on SSRN. Here’s the abstract:
Professor Jeffrey A. Parness submitted a proposed amendment to Federal Civil Procedure Rule 27(c) on November 13, 2020. It urged that federal civil procedure laws allowing presuit information preservation orders should be expanded in order to promote greater uniformity across the country and greater compliance with current substantive and procedural laws on the preservation duties involving civil litigation information. These new laws were said to be best placed in the Federal Rules of Civil Procedure. The proposal includes the rationales, some guidelines, and suggested language for a new FRCP 27(c). In particular, the proposal suggests the following language (additions underlined): "This rule does not limit a court's power to entertain an action to perpetuate testimony and an action involving presuit information preservation when necessary to secure the just, speedy, and inexpensive resolution of a possible later federal civil action."
Tuesday, February 16, 2021
Stanford Law School is hosting a four-session virtual conference entitled Legal Tech and the Future of Civil Justice. The second installment happens tomorrow (February 17) at 9:00am PST. More details and registration info here.
(H/T David Engstrom)
Thursday, February 11, 2021
I wanted to share a link to my recent article, Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020), which is now in print and available on SSRN. The piece is an effort to make sense of a topic that has been an area of frequent interest for the Supreme Court: For any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion? (In recent years the Court has granted cert to choose the standard of appellate review for a wide array of issues, ranging from a child’s habitual residence under the Hague Convention, to a creditor’s insider status under federal bankruptcy law, to whether to enforce an EEOC subpoena, to whether to award attorney fees in a patent case.)
The article digs into the how and why of the Court’s framework for making this choice, and I ultimately argue that we should scrap the enterprise of assigning distinct standards of appellate review on an issue-by-issue basis. It’s not because the concerns that animate the Court’s approach are unimportant. Rather, it’s because the purposes of appellate review—principally, error correction and law clarification—are better served by a uniform template for review that informs the substantive merits of every appellate decision. As I put it in the abstract:
The error-correction role of appellate courts would be optimized by a unified inquiry into whether the appellate court’s likelihood of reaching the correct decision is higher than the trial court’s. This new standard would consider both general institutional advantages (such as the trial court’s superior ability to assess witness credibility) and case-specific indicia of correctness (such as the appellate court’s level of confidence or particular strengths or weaknesses in the trial court’s analysis). This inquiry can be joined with the Supreme Court’s long-standing view that appellate courts may always correct legal errors de novo, regardless of the broader standard of review that applies to a particular issue. That power to correct legal errors, combined with the ability to identify conditions that increase or decrease the likelihood that a court’s decision on a particular issue is correct, would enhance the law-clarification function of appellate decisions.
I touch on other issues as well, including the expenditure of appellate court energy, appellate review of constitutional issues and so-called “legislative facts,” the possibility of asymmetric appellate review, and what even constitutes a “legal error” anyway? This was a fun piece to write (notwithstanding the math in it), and I had a great experience working with the editors in Bloomington during a very unusual time. Thanks again!
Monday, February 8, 2021
Last week the U.S. Court of Appeals for the Eleventh Circuit issued an important decision on class actions, Cherry v. Dometic Corp. Judge William Pryor’s unanimous opinion for the panel rejects the view that “administrative feasibility” is a requirement for class certification under Rule 23.
The court does recognize that administrative feasibility is “relevant” for Rule 23(b)(3) class actions—because of the “manageability criterion of Rule 23(b)(3)(D).” But even so, “the district court must balance its manageability finding against other considerations.” Therefore, “administrative difficulties—whether in class-member identification or otherwise—do not alone doom a motion for certification.”
Thursday, February 4, 2021
Yesterday, the Supreme Court granted certiorari in PennEast Pipeline Co. v. New Jersey. The petition raises the question of whether the Natural Gas Act delegates to FERC certificate holders the power to assert the federal government’s eminent domain powers over state-owned land. But the Court added a second question in granting cert: “Did the Court of Appeals properly exercise jurisdiction over this case?”
Yesterday the Supreme Court issued a unanimous decision in Federal Republic of Germany v. Philipp, which addresses the Foreign Sovereign Immunities Act’s expropriation exception. Chief Justice Roberts’ opinion begins:
The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets forth several specific exceptions. One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U. S. C. §1605(a)(3). The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception.
The answer is no, because of the “domestic takings rule,” which “assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law.” Roberts concludes: “We hold that the phrase ‘rights in property taken in violation of international law,’ as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.”
The Court punted, however, on a couple of other interesting issues in the case. First, it did not consider Germany’s argument that federal courts were “obligated to abstain from deciding the case on international comity grounds.” Second, the Court did not address the plaintiffs’ argument that the individuals whose property was taken “were not German nationals at the time of the transaction,” directing the lower courts “to consider this argument, including whether it was adequately preserved below.”
Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Procedure Here, There, and Everywhere. Pamela reviews Alyssa King’s recent article, Global Civil Procedure, Harv. Int’l L.J. (forthcoming 2021).
Wednesday, February 3, 2021
Festschrift for Steve Burbank (Feb. 12 & 13, 2021): Civil Procedure, Judicial Administration, and the Future of the Field
The University of Pennsylvania Law Review and the Journal of Constitutional Law are hosting a Festschrift in Honor of Steve Burbank entitled Civil Procedure, Judicial Administration, and the Future of the Field. It will be held virtually on Friday, February 12 and Saturday, February 13.
Details are on the following flyer:
You can register here.
(H/T: Tobias Wolff & Andrew Bradt)
Monday, February 1, 2021
With the new year comes three new monthly installments of the Unavailability Civil Procedure Workshop. This semester, they’re happening on the first Tuesday of the month at 3:00pm ET / 2:00pm CT / 1:00pm MT / 12:00pm PT. Here’s the lineup, which starts tomorrow:
February 2, 2021: Pamela Bookman & David Noll -- Ad Hoc Procedure
March 2, 2021: Beth Burch -- Multi-District Litigation
April 6, 2021: David Engstrom & Jonah Gelbach -- Legal Tech