Civil Procedure & Federal Courts Blog

Emory & Oxford Zoom Series: "Quo Vadis civil justice? Filling the gaps in civil justice in the U.S. and Europe" (March 26, April 30, May 28)

Here is the announcement (H/T Rich Freer):

Emory University School of Law and The University of Oxford’s Center for Socio-Legal Studies Swiss Re Programme for Civil Justice Systems are hosting a three-part Zoom event titled, Quo Vadis civil justice? Filling the gaps in civil justice in the U.S. and Europe. The first event is this Friday, March 26, from 9:00 a.m. to 12:00 noon Eastern Daylight Time. The others will follow, respectively, in April and May. The link to register for Friday’s event is below.

The ‘Filling the Gaps’ series will gather lawmakers, policymakers, scholars, business representatives and legal practitioners who will offer insights into the seismic shift the contemporary civil justice systems in Europe and the U.S. are experiencing. They will reflect on the search for just, efficient, and effective civil justice mechanisms, trace the trajectories of reforms, assess the reasons for differences in trajectories, and attempt to answer the perennial question: can we learn from one another?

Panels

Panel 1: Current Trends in Civil Litigation

March 26, 2021 9:00 a.m. – 12:00 noon (EDT)

The panel discussion explores developments in civil litigation. The recent trends in civil litigation in the U.S. have been the subject of some concern in academia and legal practice. The civil process and courthouses are affected by the growing pressures towards better case management and the omnipresent goal of efficiency. Some key elements of the ‘American procedural exceptionalism’ lost a great deal of their potency. European civil justice policy, while also under pressure from the efficiency advocates, continues to focus on encouraging more litigation. Reforms across Europe reflect movements towards some elements of the American-style (or common law-style) litigation. European lawmakers are looking into, or have already established, new mechanisms encouraging litigation, both on an individual and collective basis.

Speakers

Mary Anne Bobinski (Dean of Emory School of Law)
Christopher Hodges (University of Oxford)
Magdalena Tulibacka (Emory Law)
Sean Farhang (Berkeley Law, University of California)
Richard Freer (Emory Law)
Xandra Kramer (Erasmus School of Law, Rotterrdam)
Malgorzata Posnow-Wurm (European Commission)
John Sorabji (University College London Faculty of Law)
Stefaan Voet (Katholieke Universiteit Leuven)

To register, please click here.

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SCOTUS Decision on the FSIA's Expropriation Exception: Germany v Philipp

Yesterday the Supreme Court issued a unanimous decision in Federal Republic of Germany v. Philipp, which addresses the Foreign Sovereign Immunities Act’s expropriation exception. Chief Justice Roberts’ opinion begins:

The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets forth several specific exceptions. One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U. S. C. §1605(a)(3). The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception.

The answer is no, because of the “domestic takings rule,” which “assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law.” Roberts concludes: “We hold that the phrase ‘rights in property taken in violation of international law,’ as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.”

The Court punted, however, on a couple of other interesting issues in the case. First, it did not consider Germany’s argument that federal courts were “obligated to abstain from deciding the case on international comity grounds.” Second, the Court did not address the plaintiffs’ argument that the individuals whose property was taken “were not German nationals at the time of the transaction,” directing the lower courts “to consider this argument, including whether it was adequately preserved below.”

 

 

 

 

Bookman on King on Global Civil Procedure

Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Procedure Here, There, and Everywhere. Pamela reviews Alyssa King’s recent article, Global Civil Procedure, Harv. Int’l L.J. (forthcoming 2021).

 

 

 

Alien Tort Statute lawsuit filed based on killing of Jamal Khashoggi

Cengiz v. Bin Salman was filed yesterday in U.S. District Court for the District of Columbia. The suit is based on the killing of journalist Jamal Khashoggi in 2018. The plaintiffs invoke, among other things, the Alien Tort Statute and the Torture Victim Protection Act.

Spencer Hsu and Kareem Fahim have this story in the Washington Post.

Here’s the full complaint:

Download Cengiz Complaint (D.D.C.)

 

 

 

 

Singer on Reichman, Sagy & Balaban on Using Technology to Regulate Judges

Today on the Courts Law section of JOTWELL is Jordan Singer’s essay, The Machinery of Justice. Jordan reviews Amnon Reichman, Yair Sagy & Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

 

 

Some Interesting SCOTUS Cert Grants: International Edition

Today’s Supreme Court order list was a big one for the international side of civil procedure and federal courts. The Court granted certiorari in four interesting cases:

Republic of Hungary v. Simon presents the following question: “May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies?”

Federal Republic of Germany v. Philipp presents two questions:

1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.

2) Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.

Nestlé USA, Inc. v. Doe I presents two questions:

1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute, 28 U.S.C. § 1350, may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.

2) Whether the Judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.

And Cargill Inc. v. Doe I presents two related questions:

1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in—and the plaintiffs’ suffered their injuries in—a foreign country.

2) Whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.

The Court has consolidated Nestlé and Cargill for briefing and oral argument.

Here’s where to go if you want to find the cert-stage briefing and follow the merits briefs as they come in:

Hungary v. Simon: Supreme Court website; SCOTUSblog 
Germany v. Philipp: Supreme Court website; SCOTUSblog 
Nestlé and Cargill: Supreme Court website; SCOTUSblog

 

 

California Supreme Court Decision on the Hague Convention and Contractual Waivers of Service of Process

In April, the Supreme Court of California issued a unanimous decision in Rockefeller Technology v. Changzhou SinoType Technology, 460 P.3d 764 (Cal. 2020), on the ability of parties to contractually consent to service of process by methods contrary to those allowed by the Hague Convention. Justice Corrigan’s opinion begins:

The parties here, sophisticated business entities, entered into a contract wherein they agreed to submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration.  They also agreed to provide notice and “service of process” to each other through Federal Express or similar courier.  The narrow question we address is whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention or “the Convention”) preempts such notice provision if the Convention provides for a different method of service.  Consistent with United States Supreme Court authority, we conclude that the Convention applies only when the law of the forum state requires formal service of process to be sent abroad.  We further conclude that, because the parties’ agreement constituted a waiver of formal service of process under California law in favor of an alternative form of notification, the Convention does not apply. 

 

 

Dixon & Jackson on Appointing Foreign Judges to National Constitutional Courts

Rosalind Dixon and Vicki Jackson have published Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283 (2019). Here’s the abstract:

Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model’s attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts—for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions’ appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”—through some meaningful degree of domestic support for the role of such judges and through the foreign judges’ own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”

 

 

 

 

 

Li on Climate Change Litigation in China

Jiangfeng Li has published Climate Change Litigation: A Promising Pathway to Climate Justice in China?, 37 Va. Env. L.J. 132 (2019). Here’s the conclusion:

Climate change litigation has yet to take root in China. However, as this article argues, China can develop climate change litigation to effectively address the serious problem of climate change. Tackling climate change requires a multidimensional governance regime that includes both top-down regulation from government agencies and bottom-up regulation from public participation in judicial or non-judicial activity.

Litigation can be a driving force for an effective response to climate change through the process of the courts applying and interpreting statutes, prods and pleas, and the flow-on regulatory effects of the litigation process. While exploring the regulatory role climate change litigation can play, this article has offered a theoretical prognosis of potential pathways for the emergence of climate change litigation in China. It also discussed the economic, social, historical, and cultural factors currently impeding the development of climate change litigation in China. However, considering China’s domestic concerns about the risks and impacts of climate change and China’s evolving legal framework and social sentiments regarding climate change and environmental litigation, climate change litigation has an opportunity to develop in China.

In light of these factors, this article proposes that China should enact a pro-litigation climate change statute, extend government enforcement litigation to climate change, and enhance public participation and education with respect to climate change regulation. Though there is still considerable uncertainty regarding the future prospects of climate change litigation in China, this article holds an optimistic view that China will gradually become receptive to climate change litigation.

 

 

Bechtold, Frankenreiter & Klerman on Forum Selling by Foreign Courts

Stefan Bechtold, Jens Frankenreiter & Daniel Klerman have published Forum Selling Abroad, 92 S. Cal. L. Rev. 487 (2019). Here’s the abstract:

Judges decide cases. Do they also try to influence which cases they decide? Plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This Article shows that forum selling occurs outside the United States as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the United States, German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the United States is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges, and court officials, this Article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts of other countries.

 

 

 

2019 Hague Judgments Convention

This month the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

The text is here.

(H/T: Stacie Strong) 

 

 

 

 

Huang on Personal Jurisdiction and Internet Servers

Jie (Jeanne) Huang has published Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?, 36 Wis. Int’l L.J. 87 (2018). Here’s the abstract:

Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the U.S., Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.

 

 

Brand on China's Recognition of Foreign Judgments

Ronald Brand has published Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative, 37 J.L. & Com. 29 (2018). Here’s the abstract:

In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

 

 

 

 

Conference and Call for Papers: Comparative Law and International Dispute Resolution Processes (University of Missouri, October 17-19, 2019)

The American Society of Comparative Law’s 2019 Annual Meeting will take place at the University of Missouri from October 17-19, 2019:

The American Society of Comparative Law’s 2019 annual program seeks to delve more deeply into how comparative law operates formally and informally, visibly and invisibly, publicly and privately, in cases involving cross-border dispute resolution. The program includes two plenary sessions that are intended to provide an overview of comparative law in international dispute resolution as well as recommendations and forecasts for the future of the field.

More details are available here.

If you wish either to propose concurrent panels or to submit abstracts for the works-in-progress conference that will take place in conjunction with the annual meeting, the deadline is May 20. 

 

 

 

 

Some Interesting SCOTUS Cert Grants

Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:

Sudan v. Harrison presents the question:

Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

[You can follow the Sudan merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

Nutraceutical Corp. v. Lambert presents the question:

Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).

The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?

[You can follow the Neutraceutical merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:

Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

[You can follow the Henry Schein merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

 

 

 

 

 

SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law

Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:

When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).

We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.

[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]

 

 

 

Strong on International Due Process and Procedural Jus Cogens

S.I. Strong has published General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn. St. L. Rev. 347 (2018). Here’s the abstract:

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law.

The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope, and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights, and the rule of law.

The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.

The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics, and practitioners in the United States and abroad and offers groundbreaking insights into the nature of international procedural rights.

 

 

 

 

Steinman on Davis & Whytock on State-Level Remedies for Human Rights Violations

Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).

 

 

Yale-Humboldt Consumer Law Lecture (Humboldt University, Berlin, June 15, 2018)

From the announcement:

In this annual lecture series, up to three scholars from Yale Law School and other leading US-Law Schools are invited to spend some time in Berlin, at Humboldt Law School. During their stay, and as part of a variety of different events, the three visitors will interact with colleagues as well as doctoral candidates and students. The highlight of these series of events is the Yale-Humboldt Consumer Law Lecture, which is open to all interested lawyers. The presentations will be followed by a discussion.

The Yale-Humboldt Consumer Law Lecture aims at encouraging the exchange between American and European lawyers in the field of Consumer Law, understood as an interdisciplinary field that affects many branches of law. Special emphasis will therefore be put on aspects and questions which have as yet received little or no attention in the European discourse.

For this year’s event, we are privileged to welcome Professor Robert C. Post (Yale Law School), Professor Judith Resnik (Yale Law School) and Professor Reva Siegel (Yale Law School) as speakers.

Register here by June 1.

 

 

 

SCOTUS Decision in Jesner v. Arab Bank: Corporate Liability under the Alien Tort Statute

Today the Supreme Court issued its decision in Jesner v. Arab Bank, PLC, which addresses whether corporations may be liable in actions brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. It’s a fractured decision, as evidenced by the following notation at the end of the syllabus:

KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

There are 85 pages worth of opinions, but the very brief takeaway (from Part II-B-1 of Justice Kennedy’s opinion, slip op. at 19) is that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”

And from Part II-C, slip op. at 27: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.”

Justice Sotomayor’s dissenting opinion argues that foreign corporations should not be categorically immune from liability under the ATS.