Friday, November 26, 2021

Another SCOTUS Cert Grant on Intervention: Berger v. North Carolina State Conference of the NAACP

This week the Supreme Court granted certiorari in Berger v. North Carolina State Conference of the NAACP, which presents the following questions:

  1. Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.
  1. Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion.
  1. Whether Petitioners are entitled to intervene as of right in this litigation.

You can find the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

 

 

November 26, 2021 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, November 18, 2021

Michalski on Burch & Williams on MDL Litigation

Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, In a Different Voice. Roger reviews a recent article by Beth Burch and Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, Cornell L. Rev. (forthcoming 2022).

 

 

 

November 18, 2021 in Federal Courts, MDLs, Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, November 15, 2021

SCOTUS Cert Grant on Arbitration: Morgan v. Sundance

Today the Supreme Court granted certiorari in Morgan v. Sundance, Inc., which presents the following question:

Waiver is the intentional relinquishment of a known right and, in the context of contracts, occurs when one party to a contract either explicitly repudiates its rights under the contract or acts in a manner inconsistent with an intention of exercising them. In the opinion below, the Eighth Circuit joined eight other federal courts of appeals and most state supreme courts in grafting an additional requirement onto the waiver analysis when the contract at issue happens to involve arbitration-requiring the party asserting waiver to show that the waiving party's inconsistent acts caused prejudice. Three other federal courts of appeal, and the supreme courts of at least four states, do not include prejudice as an essential element of proving waiver of the right to arbitrate.

The question presented is: Does the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court's instruction that lower courts must "place arbitration agreements on an equal footing with other contracts?" AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).

You can find the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

 

 

 

November 15, 2021 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, November 5, 2021

SCOTUS Cert Grant on Bivens: Egbert v. Boule

Today the Supreme Court granted certiorari in Egbert v. Boule, which presents the following questions:

  1. Whether a cause of action exists under Bivens for First Amendment retaliation claims.
  2. Whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

(The Court did not grant cert on the third question presented, which asked the Court to “reconsider Bivens”).

You can find the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

 

November 5, 2021 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, November 4, 2021

Pfander on Bray & Miller on Equity

Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Recovering Equity. Jim reviews a recent article by Sam Bray and Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022).

 

 

November 4, 2021 in Recent Scholarship, Weblogs | Permalink | Comments (0)