Thursday, August 26, 2021
Yesterday U.S. District Judge Linda Parker of the Eastern District of Michigan issued a 110-page opinion in King v. Whitmer, imposing sanctions against the plaintiffs and their attorneys in a case brought by supporters of Donald Trump in the wake of the 2020 election. Here is the full opinion:
And here are some excerpts from Judge Parker’s introduction:
This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here. ***
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.***
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.3 As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.
Tuesday, August 17, 2021
The Pound Civil Justice Institute is accepting nominations for its Civil Justice Scholarship Award:
Pound is seeking nominations for its 2022 Civil Justice Scholarship Award. The nomination deadline is Monday, September 13, 2021; the award will be presented in February 2022 in Palm Springs, California (conditions permitting).
We will recognize two works annually (as possible) – one book and one article. Anyone may make a nomination, including the authors themselves. Law school deans may make one nomination for each category (book and article) for professors in their school.
Wednesday, August 11, 2021
Joe Glannon has shared the following hiring announcement from Suffolk University Law School:
I am writing to let you know that Suffolk University Law School is hiring. We are looking for both entry level and lateral candidates to teach in one or more of these areas: Law and Race/Gender/Sexuality studies, Contracts, Property, Civil Procedure, Intellectual Property, Trusts and Estates and Legal Practice Skills. All positions are tenure track. We are particularly interested in hiring candidates with relevant practice experience.
The full announcements can be found here for doctrinal positions. Please reach out to me with any questions. I am co-chairing the doctrinal hiring process but am happy to field questions about any of the positions.
Tuesday, August 10, 2021
Adam Zimmerman has posted on SSRN a draft of his article The Class Appeal, which will be published in the University of Chicago Law Review. Here’s the abstract:
For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.
This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.
This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.
Wednesday, August 4, 2021
Yesterday, the full Ninth Circuit voted to vacate the April panel decision in Olean Wholesale Grocery v. Bumble Bee Foods and to hear the case en banc.
One of the important issues in the case is the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. The majority opinion, authored by Judge Bumatay, had held that “the mere presence of some noninjured class members does not defeat predominance, but we hold that the number of uninjured class members must be de minimis.” Judge Hurwitz dissented from this part of the opinion, arguing instead that “[t]he critical question is not what percentage of class members is injured, but rather whether the district court can economically ‘winnow out’ uninjured plaintiffs to ensure they cannot recover for injuries they did not suffer.”
In June, the Supreme Court flagged this issue (without resolving it) in footnote 4 of Justice Kavanaugh’s majority opinion in TransUnion. “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.”