Tuesday, May 24, 2022

SCOTUS Decision on Arbitration Waiver: Morgan v. Sundance

Yesterday the Supreme Court issued a unanimous decision in Morgan v. Sundance, Inc. (covered earlier here). At issue is whether the defendant waived its right to insist on arbitration by engaging in litigation before seeking a stay under section 3 of the Federal Arbitration Act (FAA). Justice Kagan’s opinion rejects the view—expressed by many federal appellate courts—that “[a] party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.” She notes that a “special rule” requiring prejudice is not supported by the FAA’s ostensible “policy favoring arbitration.”

Here’s an excerpt, which also highlights a number of issues that the Court’s decision does not resolve:

We decide today a single issue, responsive to the predominant analysis in the Courts of Appeals, rather than to all the arguments the parties have raised. In their briefing, the parties have disagreed about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate. The parties have also quarreled about whether to understand that inquiry as involving rules of waiver, forfeiture, estoppel, laches, or procedural timeliness. We do not address those issues. The Courts of Appeals, including the Eighth Circuit, have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. For today, we assume without deciding they are right to do so. We consider only the next step in their reasoning: that they may create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). They cannot. For that reason, the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice.





May 24, 2022 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 16, 2022

SCOTUS Cert Grant on District Court Jurisdiction over Challenges to SEC Enforcement Proceedings: SEC v. Cochran

Today the Supreme Court granted certiorari in SEC v. Cochran. Here is the question presented:

Whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.

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




May 16, 2022 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Habeas: Jones v. Hendrix

Today the Supreme Court granted certiorari in Jones v. Hendrix. Here is the question presented:

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h). 28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

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



May 16, 2022 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, May 13, 2022

Coleman on Reda on Empiricism and Procedural Inequality

Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Data-Driven Procedural Inequality. Brooke reviews Danya Reda’s recent article, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. (forthcoming 2023).





May 13, 2022 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, May 5, 2022

Alabama Law Review Symposium Issue on Personal Jurisdiction

Last year, the Alabama Law Review hosted a virtual symposium entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The symposium issue is now posted:

Maggie Gardner, Pamela K. Bookman, Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave, The False Promise of General Jurisdiction, 73 Ala. L. Rev. 455 (2022).

Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483 (2022).

Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539 (2022).

Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583 (2022).

A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Advisory Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607 (2022).

Gregory C. Cook & Andrew Ross D’Entremont, No End in Sight? Navigating the “Vast Terrain” of Personal Jurisdiction in Social Media Cases After Ford, 73 Ala. L. Rev. 621 (2022).

David G. Wirtes, Jr. & Christy Ward Rue, Combating Weaponized Challenges to Personal Jurisdiction, 73 Ala. L. Rev. 661 (2022).

Thanks to everyone who participated! Very excited to see the contributions in print.




May 5, 2022 in Conferences/Symposia, Recent Scholarship | Permalink | Comments (0)

Tuesday, May 3, 2022

Call for Papers: Nevada Law Journal Symposium on the Shadow Docket

The Nevada Law Journal is inviting submissions for its Volume 23 symposium: "Dark Necessities? The Supreme Court's Shadow Docket." This issue seeks to explain the shadow docket's past and present use as well as its substantive effects on particular areas of law. Proposals are due May 16, 2022; articles will be due by August 15, 2022.

Download Symposium call (23 Nev. L.J.)



May 3, 2022 in Conferences/Symposia | Permalink | Comments (0)

Monday, May 2, 2022

SCOTUS Adopts 2022 Rules Amendments

The Supreme Court has adopted amendments to the Federal Rules of Civil Procedure, as well as amendments to the Federal Rules of Appellate Procedure,  the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Criminal Procedure, and transmitted them to Congress. 

The FRCP amendments include amendments to Rule 7.1 and a new set of Supplemental Rules for Social Security Review Actions Under 42 U.S.C. § 405(g). The Rule 7.1 amendments, among other things, create a new disclosure requirement to facilitate early determinations of whether diversity jurisdiction exists. The new supplemental rules for § 405(g) actions establish a uniform procedure for such actions. 

Unless Congress intervenes, these amendments will take effect on December 1, 2022.

You can find the full transmittal package, including redlines and advisory committee notes, here



May 2, 2022 in Federal Courts, Recent Decisions | Permalink | Comments (0)