Tuesday, March 23, 2021
The final version of my article, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1, is now posted. It tackles the question of what standard of review appellate courts should use for findings made by civil juries. There’s a fair amount of confusion on this issue, because some appellate courts have conflated it with the framework for choosing the standard of appellate review for rulings by lower court judges. (The confusion is not helped by the extent to which the often elusive distinction between “law” and “fact” plays a role.)
This is also an issue that the Supreme Court is considering right now in Google LLC v. Oracle America, Inc., a $9 billion lawsuit about Google’s use of Java programming code to develop its Android operating system. SCOTUS issued a specific order asking the parties to brief the appropriate standard of review for the jury’s verdict in favor of Google on its fair use defense. The Google case was argued at the beginning of this Term but is still awaiting a decision—here are some of my thoughts on the case from back in October after the oral argument: SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts.
I enjoyed working on this piece, and I hope folks find it helpful. Special thanks to the great editors at the Wisconsin Law Review, who did a fantastic and timely job getting the article finalized—maybe even in time for SCOTUS to read it! Here’s the full 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, one that has led to confusion surrounding 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.
Monday, October 19, 2020
Today’s Supreme Court order list contained some high-profile grants of certiorari that include some interesting federal courts issues.
Wolf v. Innovation Law Lab involves a challenge to the Trump administration’s “Remain in Mexico” policy, which had been enjoined by lower federal courts. One of the four questions presented is “[w]hether the district court’s universal preliminary injunction is impermissibly overbroad.”
Trump v. Sierra Club involves the Trump administration’s diversion of Department of Defense (DoD) funds to build portions of a wall along the U.S.-Mexico border. The first question presented is whether the plaintiffs “have a cognizable cause of action to obtain review of the Acting Secretary’s compliance with Section 8005’s proviso in transferring funds internally between DoD appropriations accounts.”
Here's where you can check out the cert-stage briefing and follow the merits briefs as they come in:
Supreme Court website:
Friday, September 25, 2020
Below is an announcement from the Cardozo Law Review seeking submissions for a special issue on Supreme Court nominations.
Monday, August 10, 2020
The Ninth Circuit recently issued its decision in Judd v. Weinstein. Judge Murguia’s opinion reverses the district court’s dismissal of Ashley Judd’s state-law sexual harassment claim against producer Harvey Weinstein.
In doing so, the court confronts an issue of “first impression under California law” and proceeds to “predict how the California Supreme Court would resolve it.” The court also finds that Judd’s complaint passes muster under Iqbal, despite Weinstein’s argument that she failed to adequately allege a professional relationship at the time of the alleged harassment:
Judd sufficiently alleged a “business, service, or professional relationship” at the time of the alleged harassment: Judd alleged that she established a professional relationship with Weinstein after working on the 1995 Miramax film Smoke, and went to the Peninsula Hotel in hopes of building upon that existing relationship to discuss future professional endeavors. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Moreover, Judd alleged that “at the time of the harassment, [she] was discussing potential roles in films produced or distributed by Weinstein or Miramax.” This is more than enough to allege a professional relationship at the time of the alleged harassment.
(H/T: Aaron Caplan)
Friday, June 26, 2020
Yesterday the House of Representatives passed the George Floyd Justice in Policing Act of 2020 (H.R. 7120). Section 102 addresses qualified immunity, although only in the context of actions against law enforcement officers. Here’s the relevant text:
Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following:
“It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2020), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that—
“(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
“(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”
Wednesday, June 24, 2020
Today a panel of the D.C. Circuit issued a 2-1 decision in In re Flynn, granting in part Michael Flynn’s petition for a writ of mandamus. Judge Rao authored the majority opinion, joined by Judge Henderson. Judge Wilkins dissented in part.
The majority “order[s] the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn” and vacates the district court’s order appointing retired EDNY District Judge John Gleeson as an amicus curiae to argue against the government’s motion to dismiss the charges. The majority refuses, however, to grant Flynn’s request to order reassignment of the case to a different district court judge.
It’s a politically important case, obviously, but the competing views on when a writ of mandamus is an appropriate method of appellate court intervention are worth a read in their own right.
Friday, May 15, 2020
There are major political implications, obviously, but these decisions are all about appellate jurisdiction—the majority declines to review the district court’s denial of Trump’s motions to dismiss without addressing the substantive merits of those rulings. Stay tuned, of course: it’s quite likely that this case is headed to the Supreme Court.
Wednesday, April 29, 2020
SCOTUS asks for supplemental briefing on the political question doctrine and justiciability in Trump documents cases
Among the Supreme Court’s October Term 2019 cases that will be argued remotely in the coming weeks are two cases relating to Congress’s attempt to obtain documents from President Trump’s banks and accountant (Trump v. Mazars USA & Trump v. Deutsche Bank AG). Those cases are set for oral argument on Tuesday, May 12.
Monday’s order list directed the parties to file “supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” Stay tuned!
Friday, April 17, 2020
Might be just a coincidence, but there was a similar theme in two Law360 stories this week...
Put On A Shirt For Video Hearings, Judge Tells Attys. Here’s the letter from Broward County Judge Dennis Bailey.
Atty Who Depantsed At Court Security Check Fights DQ Bid. Here are some of the documents:
Thursday, March 5, 2020
Last week, the Twenty-First Century Courts Act (H.R. 6017) was introduced in the House of Representatives. The bill would require: a Code of Conduct for Supreme Court Justices (§ 2); written recusal explanations, including for Supreme Court Justices (§ 3); online publication of financial disclosure reports (§ 4); same-day audio release of Supreme Court oral arguments (and live audio within two years), and live audio of oral arguments in the federal courts of appeals (§ 5); improvements to electronic case management systems (§ 6); and free access to electronic documents via PACER (§ 7).
Here is the full text:
You can follow the bill’s progress here.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Friday, August 16, 2019
Ninth Circuit partially stays nationwide injunction against Trump administration's asylum restrictions
Today the Ninth Circuit issued a 2-1 decision in East Bay Sanctuary Covenant v. Barr. The court partially grants and partially denies the government’s motion to stay a nationwide injunction issued by the district court against the Trump administration’s recent restrictions on asylum eligibility.
Because the government had not made a “strong showing” that it was “likely to succeed on the merits,” the court denies the motion for a stay “insofar as the injunction applies within the Ninth Circuit.”
However, the court grants the motion for a stay “insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands.” On that point, the court states: “While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”
The judges on the motions panel are Judge Wallace Tashima, Judge Milan Smith, and Judge Mark Bennett. Judge Tashima dissents in part—he would have denied the motion to stay in its entirety.
Tuesday, April 23, 2019
Coleman on Law Clerks for Workplace Accountability’s Public Comment on Proposed Changes to the Judicial Conduct Code & Rules
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Accountability Requires Tenacity. Brooke reviews Law Clerks for Workplace Accountability, Public Comment on The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.
Saturday, December 1, 2018
Friday, September 14, 2018
Here is a quick summary:
- H.R. 3487. This bill’s purpose is to “amend section 1332 of title 28, United States Code, to provide that the requirement for diversity of citizenship jurisdiction is met if any one party to the case is diverse in citizenship from any one adverse party in the case.”
Here is the text of the bill.
H.R. 3487 was not reported, apparently because no reporting quorum was present. (See 3:54:25 here.)
- H.R. 6730, the “Injunctive Authority Clarification Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to prohibit the issuance of national injunctions, and for other purposes.”
Here is the text of the bill.
H.R. 6730 was ordered to be reported during the hearing.
- H.R. 6754, the “CIRCUIT Act of 2018” or the “Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to modify the structure of the Court of Appeals for the Ninth Circuit, and for other purposes.”
Here is the text of the bill.
H.R. 6754 was ordered to be reported during the hearing.
- H.R. 6755, the “Judiciary Reforms, Organization and Operational Modernization Act of 2018” or the “Judiciary ROOM Act of 2018.” This bill’s purpose is to “provide for additional Article III judges, to modernize the administration of justice, and for other purposes.”
Here is the text of the bill.
H.R. 6755 was ordered to be reported during the hearing.
Tuesday, August 7, 2018
Here's an announcement for a program that will be co-sponsored by the AALS Section on Civil Procedure at the 2019 AALS Annual Meeting:
AALS 2019 Program Summary: “Court Debt”: Fines, Fees, and Bail, Circa 2020
This symposium, co-sponsored by the Sections on Civil Procedure, Tax, Bankruptcy, and Criminal Justice, examines how courts are financed and the growing reliance on user fees, whether for filing or defending civil cases; charges imposed on criminal defendants such as “registration fees” for “free” lawyers; the imposition of both civil and criminal “fines”; and the use of money bail. We explore whether and how constitutional democracies can meet their obligations to make justice accessible, both to participants and to the public, in light of the numbers seeking help from courts, high arrest and detention rates, declining government budgets, and shifting ideologies about the utility and desirability of accessible courts. These topics have prompted the creation of national and state task forces; litigation (including challenges to detention of individuals eligible for release but lacking funds to secure bail bonds, and the automatic losses of drivers’ licenses for nonpayment of fines); and a mix of economic, political, and legal analyses probing the effects of “court debt.”
Session one: Understanding the dimensions and the Legal Critiques
Moderator/introduction: Judith Resnik, Yale Law School
Brandon Buskey, Staff Attorney, ACLU Criminal Law Reform Project, NYC
Abbye Atkinson, Berkeley
Beth Colgan, UCLA
Crystal Yang, Harvard Law School
Cortney Lollar, Kentucky
Lisa Foster and Johanna Weiss, co-directors of the Fines and Fees Justice Center
Session two: Remedies: from Bankruptcy to Abolition and from Courts to Legislatures
Introduction/moderator David Marcus, UCLA
Pamela Foohey, Indiana University Maurer School of Law
Alex Karakatsanis, Founder and Executive Director, Civil Justice Corps
Jeff Selbin, Berkeley
Gloria Gong, Director of Research and Innovation, Government Performance Lab, Harvard Kennedy School
Maureen O’Connor, Supreme Court Ohio and Chair of the National Center for State Courts on Task Force on Fines and Fees
For those interested in reading cases and commentary in advance, a 2018 volume, Who Pays? Fines, Fees, Bail, and The Costs of Courts, is available at https://law.yale.edu/system/files/area/center/liman/document/liman_colloquium_book_04.20.18.pdf. Many other articles are available and, in advance of the symposium, we plan to provide a bibliography with additional readings. An edited set of essays will be published after the symposium in the North Carolina Law Review.
Thursday, June 7, 2018
Rorie Spill Solberg (Oregon State Univ., Department of Political Science, School of Public Policy) and Jennifer Segal Diascro (University of California Washington Program (UCDC)) have published an article entitled "A Retrospective on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation" in the Journal of Politics, Groups, and Identities. Here's the abstract:
"Despite abundant attention to the judicial selection of U.S. Supreme Court justices, most federal legal disputes are resolved in the lower federal courts. Who the judges are and how they make their decisions matters enormously in a democracy that values the fair and equitable treatment of its citizens under the rule of law. Our focus in this study is on the demographic diversity of President Obama’s appointments to the lower federal bench. It is clear from the various methods of examining the numbers that Obama valued diversity – perhaps more so than any previous president. When we examine all lower courts in the aggregate, and then district and circuit courts separately, the total number of successful nominees, the replacement patterns for departing judges, and comparisons between active and senior status judges, we see a concerted and largely successful effort to increase symbolic representation on the federal judiciary. Under different political circumstances, the data would lead us to consider novel complexities in diversifying the federal bench in the next several years. But a Trump presidency and its expected focus on ideology over diversity is likely to lead the study of judicial selection in a different direction, at least for the time being."
Friday, June 1, 2018
Margaret Hagan (Stanford Design Lab) has posted an article entitled "A Human-Centered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Innovation to Make Courts User-Friendly." Here's the abstract:
"How can the court system be made more navigable and comprehensible to unrepresented laypeople trying to use it to solve their family, housing, debt, employment, or other life problems? This Article chronicles human-centered design work to generate solutions to this fundamental challenge of access to justice. It presents a new methodology: human-centered design research that can identify key opportunity areas for interventions, user requirements for interventions, and a shortlist of vetted ideas for interventions. This research presents both the methodology and these “design deliverables” based on work with California state courts’ Self Help Centers. It identifies seven key areas for courts to improve their usability, and, in each area, proposes a range of new interventions that emerged from the class’s design work. This research lays the groundwork for pilots and randomized control trials, with its proposed hypotheses and prototypes for new interventions, that can be piloted, evaluated, and—ideally—have a practical effect on how comprehensible, navigable, and efficient the civil court system is."
Monday, April 23, 2018
Today a panel of the Ninth Circuit issued its decision in Naruto v. Slater (the Monkey Selfie case), covered earlier here. People for the Ethical Treatment of Animals (PETA) brought suit as the next friend of Naruto, who “was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia.” The majority opinion by Judge Carlos Bea begins:
We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.
Although the majority opinion stated that “[w]e gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey,” it wrote:
Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes “next friend” lawsuits, obligates the court “to consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” U.S. v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has “broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 2556 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”)). See also Harris v. Mangum, 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem . . . could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).
Proceeding to Naruto’s constitutional standing, the majority concluded that Naruto’s claim satisfied Article III:
Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.
In reaching these conclusions, the majority found that it was bound by an earlier Ninth Circuit decision—Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In a footnote, however, the majority argued that Cetacean was “incorrectly decided” and “needs reexamination.”
Ultimately, the panel found that the district court correctly dismissed the case because “Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”
Judge N.R. Smith wrote a concurring opinion that disagreed with the majority’s handling of PETA’s lack of next-friend standing.
Wednesday, April 18, 2018
Last week the Ninth Circuit issued an order denying a joint motion to dismiss the appeal in NARUTO, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER (a.k.a. the Monkey Selfie case). Here is the full order:
Having reached a settlement, the parties moved—two months after oral argument—to dismiss the appeal and to vacate the lower court’s judgment. In denying the motion, the court noted that voluntary dismissals are permissive, not mandatory, under FRAP 42, and that “denying the motion to dismiss and declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences.”
The court also observed that Naruto himself was not a party to the settlement between PETA and the appellees.