Civil Procedure & Federal Courts Blog

Dangerous Secrets: Confronting Confidentiality in Our Public Courts

The Pound Civil Justice Institute has published the report of its 2020 Judges Forum, Dangerous Secrets: Confronting Confidentiality in Our Public Courts. It features academic papers by Dustin Benham and Sergio Campos, plus commentary and discussion by the legal experts and judges who attended.

You can find previous Judges Forum reports here.

 

 

 

Spring 2021 Unavailability Civil Procedure Workshops

The Unavailability Civil Procedure Workshop has its final fall session tomorrow (Tuesday, November 10). We’ll resume again in Spring 2021 with the following workshops:

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

 

 

 

Next Session of SALT's Virtual Series, "Social Justice in Action"

We covered earlier the new virtual series Social Justice in Action, brought to you by the Society of American Law Teachers (SALT). Here are details on the next session:

Anti-Racist Hiring Practices
–  October 16, 2020 3pm ET - 4pm ET –
Register here:  https://bit.ly/307SZ6M

Featuring
Tamara Lawson, Dean, St. Thomas University School of Law
Angela Onwuachi-Willig, Dean, Boston University School of Law
Sean Scott, President and Dean, California Western School of Law

(H/T: Allyson Gold)

 

 

 

Steinman on Appellate Courts and Civil Juries

I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the abstract:

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.

Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.

Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.  

 

 

 

Call for Submissions: Cardozo Law Review Special SCOTUS Nomination Issue

Below is an announcement from the Cardozo Law Review seeking submissions for a special issue on Supreme Court nominations.

Download Call for Submissions - Special SCOTUS Nomination Issue

 

Campos on the Civil Procedure Unavailability Workshop

Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Stay (Faraway, So Close!) in Touch with Civil Procedure, which discusses the Civil Procedure Unavailability Workshop series (covered earlier here).

 

 

Online Civil Procedure Workshop Resumes Today

After a brief hiatus, the Unavailability Civil Procedure Workshop resumes today, on a monthly basis. Here are the fall sessions:

September 1, 2020: Howie Erichson -- Distinguishing Between Facts And Conclusions Under Iqbal

October 6, 2020: Portia Pedro -- Remedies and Civil Procedure

November 10, 2020: Zach Clopton & Colleen Shanahan -- State Civil Procedure

 

 

Sixth Annual Civil Procedure Workshop (Online - October 23, 2020)

The Sixth Annual Civil Procedure Workshop—originally scheduled to be held at Northwestern this Fall—will now take place virtually on October 23, 2020.

Register here by October 16.

H/T: Zach Clopton

 

 

Upcoming Sessions of SALT's Virtual Series, Social Justice in Action

We covered earlier the new virtual series Social Justice in Action, brought to you by the Society of American Law Teachers (SALT). Here are details on three upcoming sessions:

Promoting Equity and Inclusion in Online Teaching
–  August  21, 2020 3pm ET - 4pm ET –
Register here:  https://bit.ly/2DbiMli

Featuring
Goldie Pritchard, Director, Academic Success Program, Michigan State University College of Law
Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University
Carwina Weng, Clinical Professor of Law, Indiana University Maurer School of Law
Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law

If you have questions for our panelists in advance of the event, please submit them here: https://forms.gle/5PuV1LSznYKWQ4Gc9

Racialized Trauma and Fatigue Among Academic Activists
–  September 18, 2020 3pm ET - 4pm ET –
Register here:  https://bit.ly/2BDeToN

Featuring
Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles
Carla Pratt, Dean, Washburn University School of Law
Rosario Lozada, Associate Professor of Legal Skills and Values, FIU Law

Anti-Racist Hiring Practices
–  October 16, 2020 3pm ET - 4pm ET –
Register here:  https://bit.ly/307SZ6M

Featuring
Tamara Lawson, Dean, St. Thomas University School of Law
Angela Onwuachi-Willig, Dean, Boston University School of Law
Sean Scott, President and Dean, California Western School of Law

 

(H/T: Allyson Gold)

Pound Civil Justice Institute's 2020 State Appellate Judges Forum: Confidentiality & Public Courts

The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.

 

 

Cabraser & Steinman on Class Action Objectors and the 2018 Amendments to Rule 23

Elizabeth Cabraser and I have posted on SSRN our recent article, What Is a Fair Price for Objector Blackmail? Class Actions, Objectors, and the 2018 Amendments to Rule 23, 24 Lewis & Clark L. Rev. 549 (2020). Here’s the abstract:

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes — along with other on-the-ground developments — are important steps toward improving the class action settlement process.

Thanks once again to the Pound Civil Justice Institute, Lewis & Clark Law School, and Bob Klonoff for organizing a great symposium last fall.

 

 

 

SEALS 2020 Annual Conference (July 30 – August 5)

The Southeastern Association of Law Schools (SEALS) is holding its annual conference online this year (July 30 to August 5).

You can find the full program here.

Looking forward to seeing folks!

 

SALT Virtual Series: Social Justice in Action

The Society of American Law Teachers (SALT) has shared the following information about a new virtual series, Social Justice in Action:

SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.

The first session, Incorporating Anti-Racism Frameworks into Core Law School Classes, will be on July 30, 2020 at 3pm ET.

To attend, please register in advance at: https://msu.zoom.us/meeting/register/tJYpf-msqzgiG91326VGLxmLZpW9GUHGbiCn

After registering, you will receive a confirmation email containing information about joining the meeting.

See below for information on upcoming panels. More to come!

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AALS Federal Courts Section: Calls for Nominations

Below are two announcements from the AALS Section on Federal Courts:

AALS Federal Courts Section - Daniel J. Meltzer Award: Call for Nominations

The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer.  The Award recognizes a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts. 

Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools, have not previously won the award, and have not served as an officer of the Federal Courts Section in the two previous years.  It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years. 

Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law (sethdavis@berkeley.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020.  Nominations will be reviewed by a prize committee consisting of Professors Seth Davis (Berkeley), Gillian Metzger (Columbia), James Pfander (Northwestern), and Carlos Vázquez (Georgetown).  If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2021 AALS Annual Meeting.

AALS Federal Courts Section - Best Untenured Article on Federal Jurisdiction: Call for Nominations

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2021 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2020 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2020), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law (sethdavis@berkeley.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020. Nominations will be reviewed by a prize committee comprised of Professors Samuel Bray (Notre Dame), Seth Davis (Berkeley), Allison Orr Larsen (William & Mary), Marin Levy (Duke), and Leah Litman (Michigan), with the result announced at the Federal Courts section program at the 2021 AALS Annual Meeting.

 

 

Symposium Issue on Federal Appellate Procedure

The Akron Law Review has published its symposium issue on federal appellate procedure, featuring contributions by Andrew Pollis, Joan Steinman, Andra Robertson & Greg Hilbert, Mike Solimine, Bryan Lammon, and Adam Steinman.

Unfortunately we were unable to gather together for the in-person symposium because of the COVID-19 pandemic. But it’s great to see the issue “in print.” Thanks to the law review editors for their terrific work!

 

 

 

Workshop on Civil Procedure Pedagogy and Racial, Social and Economic Justice (July 22)

Following up on last week’s workshop on civil procedure pedagogy and distance learning, here’s an announcement from Dave Marcus about a second session for July:

[A]s mentioned last week, the co-organizers of the Civil Procedure Workshop wanted to put together a second session on how our courses can meaningfully engage with themes of racial, social, and economic justice during such extraordinary times.  I'm happy to announce that this session will proceed on Wednesday, July 22, from 1:00-3:00 east coast time.  The format will be similar to last week's, with several plenary presentations and breakout room discussions.  Deseriee Kennedy (Touro), Sarah Krakoff (Colorado), Jaya Ramji-Nogales (Temple), and Tobias Wolff (Penn) have very generously volunteered to present.

If you’re interested, email Dave at marcus@law.ucla.edu.

 

 

 

William & Mary Law Review Symposium Issue: The Role of Courts in Politically Charged Moments

The William & Mary Law Review has published its symposium issue, The Role of Courts in Politically Charged Moments. It features contributions by Jack Beermann, Erwin Chemerinsky, Barry Cushman, Bert Huang, Alli Larsen, Marin Levy, and Mary-Rose Papandrea.

 

 

Symposium Issue: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"

Last Fall, the Pound Civil Justice Institute and Lewis & Clark Law School sponsored a symposium in Portland entitled “Class Actions, Mass Torts, and MDLs: The Next 50 Years” (covered here and here).

Today the Lewis & Clark Law Review posted the symposium issue, featuring contributions by Jennie Anderson; Bob Klonoff; Teddy Rave & Zach Clopton; Dave Marcus; David Noll; Lynn Baker & Steve Herman; Josh Davis & Brian Devine; Alexi Lahav; Elizabeth Cabraser & Adam Steinman; Bob Bone; Gerson Smoger; Judith Resnik, Stephanie Garlock & Annie Wang; Brian Fitzpatrick; and Arthur Miller.

My personal thanks to the Pound Institute, Lewis & Clark, and Bob Klonoff for organizing a wonderful symposium, and to the law review editors for their excellent editorial work. It’s great to see the finished product!

 

 

Workshop on Civil Procedure Pedagogy and Distance Learning (June 17)

Unfortunately, the Sixth Annual Civil Procedure Workshop (originally scheduled to be held at Northwestern Law School this September) has been postponed. Fortunately, the Civil Procedure Workshop steering committee has organized a session on civil procedure pedagogy and distance learning that will take place over Zoom on Wednesday, June 17 at 1:00-3:30pm EDT.

Dave Marcus has shared the following details:

Everyone will assemble on Zoom for an initial session led by Tara Grove (Alabama), Howie Erichson (Fordham), Beth Thornburg (SMU), and Liz Porter (UW).  Tara, Howie, Beth, and Liz have all put a good deal of thought into how to make various aspects of distance learning work for law teaching, so I’m really grateful that they’ll share their wisdom.  We’ll then divide into breakout sessions for smaller group conversations. The proceedings will conclude with another plenary session.

I’m hopeful that many of you can join us, as I know that I have a lot to learn before the fall semester begins. I also would very much like to see as many of you as possible, if only in a small square on Zoom.

If you’re interested, email Dave at marcus@law.ucla.edu.

 

 

 

 

Notre Dame Law Review Symposium Issue on State Standing

The Notre Dame Law Review has published its symposium issue, Federal Courts, Practice & Procedure: State Standing. It features contributions by Tara Grove, Ernie Young, Andy Hessick, Brad Mank & Mike Solimine, Jonathan Nash, Ann Woolhandler & Michael Collins, Robert Mikos, Katherine Crocker, Seth Davis, and Aziz Huq.