Thursday, March 31, 2022

SCOTUS Decision in Badgerow v. Walters: Arbitration and Federal Subject-Matter Jurisdiction

Today the Supreme Court issued its decision in Badgerow v. Walters (covered earlier here). Justice Kagan’s majority opinion concludes that when a request to confirm or vacate an arbitral award under Sections 9 and 10 of the Federal Arbitration Act (FAA) is filed in federal court, “a court may look only to the application actually submitted to it in assessing its jurisdiction.” That is, the Court rejected the so-called “look-through” approach that it had endorsed for petitions to compel arbitration under Section 4 of the FAA in Vaden v. Discover Bank, 556 U.S. 49 (2009). Justice Kagan reasoned that Sections 9 and 10 “lack Section 4’s distinctive language directing a look-through, on which Vaden rested.”

Justice Breyer was the lone dissenter, arguing that “Congress intended a single approach for determining jurisdiction of the FAA’s interrelated enforcement mechanisms, not one approach for the mechanism provided in Section 4 and a different approach for the mechanisms provided in all other sections.”





March 31, 2022 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, March 28, 2022

SCOTUS Cert Grant on the Adequate Independent State Ground Doctrine: Cruz v. Arizona

Today the Supreme Court granted certiorari in Cruz v. Arizona, limited to the following question:

Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

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



March 28, 2022 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, March 21, 2022

Endo on Beerdsen on Discovery Culture

Today on the Courts Law section of JOTWELL is Seth Endo’s essay, “Order Without Law” in Discovery. Seth reviews Edith Beerdsen’s recent article Discovery Culture, 57 Ga. L. Rev. (forthcoming).




March 21, 2022 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Hiring Announcement: Nebraska Law Seeks Civil Procedure Visitor for Spring 2023

Here is the announcement:

The University of Nebraska College of Law is looking for visiting professors for 2022-23. We are accepting letters of interest from professors to teach criminal law and/or contracts in fall 2022. We are also accepting letters of interest from professors to teach civil procedure in spring 2023. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send letters directly to Associate Dean Anthony Schutz, [email protected].




March 21, 2022 | Permalink | Comments (0)

Friday, March 11, 2022

Texas Supreme Court Decision on S.B. 8

This morning, the Supreme Court of Texas issued its decision in Whole Woman’s Health v. Jackson. It is the latest development in the litigation over Texas’s abortion law, S.B. 8. After the U.S. Supreme Court’s decisions in December (covered here), the Fifth Circuit certified to the Texas Supreme Court the following question, which implicates one narrow path for challenging S.B. 8 that the U.S. Supreme Court left open:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207, and 171.208(a) of the Texas Health and Safety Code.

23 F.4th 380, 389 (5th Cir. 2022).

In today’s opinion by Justice Boyd, the Texas Supreme Court gives the following answer:

Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly. We answer the Fifth Circuit’s certified question No.




March 11, 2022 in Recent Decisions, State Courts | Permalink | Comments (0)

Monday, March 7, 2022

Hiring Announcement: Alabama Law Seeks Civil Procedure Visitor

The University of Alabama is hiring a visitor to cover civil procedure next year. The visit can be for either the fall 2022 semester or the full 2022-2023 academic year. Here is the announcement:

The University of Alabama School of Law is seeking a visiting faculty member for a podium visit in the fall 2022 semester to teach Civil Procedure (4 credit hours) in the first-year required curriculum. Faculty members from ABA-accredited law schools are welcome to apply. Qualified applicants not currently affiliated with a law school will also be considered, in which case salary will be commensurate with experience and qualifications.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  There is also an option to structure the visit for the full 2022-23 academic year.  For a year-long visit, teaching responsibility during the spring semester of 2023 is negotiable.  In either case, instruction will be in-person at the School of Law in Tuscaloosa, Alabama.  Compensation for this visit will include support for housing and a “bonus stipend” for the visiting scholar in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community.

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at [email protected].

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at [email protected].

Review of materials and nominations will begin immediately and will continue until the position is filled. 




March 7, 2022 | Permalink | Comments (0)

Friday, March 4, 2022

A Busy Couple of Days at SCOTUS: Intervention, the State Secrets Privilege, and the State Secrets Privilege

The Supreme Court handed down several opinions today and yesterday, including one case on intervention and two cases on the state secrets privilege.

In Cameron v. EMW Women’s Surgical Center, the Court reversed the Sixth Circuit’s denial of the Kentucky attorney general’s motion to intervene on appeal in a case challenging the constitutionality of a Kentucky abortion law. Justice Alito wrote the majority opinion, from which Justice Sotomayor dissented. Justices Kagan and Breyer did not join the majority opinion, but concurred in the judgment in an opinion authored by Justice Kagan.

In United States v. Zubaydah, a fractured Court found that the state secrets privilege blocked a Guantánamo Bay detainee’s discovery request under 28 U.S.C. § 1782 seeking to obtain information to use in Polish litigation regarding his treatment at a CIA detention cite; it therefore reversed the Ninth Circuit’s ruling that former CIA contractors could be required to confirm the location of the site. Here’s the headcount:

BREYER, J., delivered the opinion of the Court, except as to Parts II– B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all but Parts III and IV and the judgment of dismissal, and THOMAS and ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO, J., joined. KAVANAUGH, J., filed an opinion concurring in part, in which BARRETT, J., joined. KAGAN, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

And in FBI v. Fazaga, the Court unanimously held that § 1806(f) of the Foreign Intelligence Surveillance Act did not “eliminate, curtail, or modify” the state secrets privilege. Justice Alito authored the opinion of the Court, which remanded the case for lower courts to decide whether the state secrets privilege applied and whether dismissal of the plaintiffs’ claims was warranted.




March 4, 2022 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)