Thursday, February 21, 2019
Call for Papers: Eleventh Annual Junior Faculty Federal Courts Workshop (Arkansas-Fayetteville, September 6-7, 2019)
Here is the announcement:
The University of Arkansas School of Law will host the Eleventh Annual Junior Faculty Federal Courts Workshop on September 6-7, 2019. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.
The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin on the morning of Friday, September 6, and conclude by lunchtime on Saturday, September 7. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.
The workshop will take place on the University of Arkansas’s flagship campus in Fayetteville. The Law School will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to email@example.com by March 29, 2019. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.
Tuesday, February 19, 2019
From the announcement:
Boston University School of Law (host; co-sponsors Seattle University and University of Washington)
Workshop Date: Wednesday, May 8, 2019
Abstract Deadline: March 15, 2019
Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter
Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.
The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.
This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.
Full details here:
Friday, February 15, 2019
Here is the announcement:
Full-Time Faculty Podium Visitors for 2019-2020
The John Marshall Law School in Chicago seeks two or more experienced faculty members to serve as full-time visiting professors for the 2019-2020 academic year (one or both semesters). We need coverage in the areas of Civil Procedure, Corporations, Employee Benefits, Estates & Trusts, Income Taxation, Legal Research and Writing, and Property. Candidates must have law school teaching experience. It is contemplated that the successful candidates will be current full-time faculty members at ABA-approved law schools, although others with extraordinary credentials may be considered.
To apply, submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at firstname.lastname@example.org. The Committee will begin reviewing applications as they are received and will continue on a rolling basis until the positions are filled. We may conduct an interview via Skype or a similar platform or in person, and may request submission of teaching evaluations or other materials.
The John Marshall Law School is committed to diversity, access, and opportunity. Subject to the approval of our accreditors, JMLS is in the process of being acquired by the University of Illinois at Chicago, with an anticipated closing date in August 2019. For more information, visit www.jmls.edu and jmls.uic.edu.
The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.
Wednesday, February 13, 2019
Today on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay Building a Better Mousetrap. Jay reviews a recent book by Christopher Hodges & Stefaan Voet, Delivering Collective Redress: New Technologies (2018).
Thursday, February 7, 2019
Here is the Call for Papers:
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.
While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Bob Bone (UT Austin), email@example.com
Dave Marcus (UCLA), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Brooke Coleman (Seattle U), firstname.lastname@example.org
Tuesday, February 5, 2019
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.
Thursday, January 31, 2019
Rhonda Wasserman has posted on SSRN her article, Ascertainability: Prose, Policy, and Process, 50 Conn. L. Rev. 695 (2018). Here’s the abstract:
One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like soft drinks and snacks and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue.
Ascertainability is not only of great practical importance, but it is interesting on three different levels. First, there is a question of prose – whether the text of the Rule supports the implication of the strict ascertainability requirement. Second, there is a question of policy – whether concern for the class action defendant, the absent class members, or the trial court overseeing the action justifies imposition of the strict requirement, notwithstanding its harsh impact on consumer class actions. Third, there is a process question: which governmental actor – the lower courts, the Supreme Court, the Advisory Committee on Civil Rules, or Congress – has the greatest institutional competency to resolve the policy issue and establish a uniform approach to ascertainability. This Article addresses each of these questions in turn.
Wednesday, January 30, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Enhancing the Role of States in Making Constitutional Law. Jim reviews Judge Jeffrey Sutton’s recent book, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).
Thursday, January 17, 2019
Steve Burbank and Tobias Wolff have published Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018). Here’s the abstract:
After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of a tolling rule. The same need can arise for those who wish to opt out of a certified class action. American Pipe and its progeny provide such a tolling rule in some circumstances, but many unanswered questions remain about when the doctrine is available.
In June 2017, the Court decided CalPERS v. ANZ Securities, holding that American Pipe tolling was foreclosed to a class member who opted out of a certified class in an action brought to enforce a federal statute (the Securities Act of 1933) that contained what the Court labeled a “statute of repose.” In June 2018, the Court decided Resh v. China Agritech, which held that American Pipe tolling is not available when absent members of a putative class file another class action following the denial of certification in the first action rather than pursuing their claims individually in subsequent proceedings.
In this Article we develop a comprehensive theoretical and doctrinal framework for the American Pipe doctrine. Building on earlier work, we demonstrate that American Pipe tolling is a federal common-law rule that aims to carry into effect the provisions and policies of Federal Rule of Civil Procedure 23, the federal class action device. Contrary to the Court’s assertion in CalPERS, American Pipe is not an “equitable tolling doctrine.” Neither is it the product of a direct mandate in Rule 23, which is the source of authority, not the source of the rule. Having clarified the status of American Pipe tolling as federal common law, we explain the basis on which the doctrine operates across jurisdictions, binding subsequent actions in both federal and state court. We argue that the doctrine applies whether the initial action in federal court was based on a federal or state cause of action—a question that has produced disagreement among the lower federal courts. And we situate American Pipe within the framework of the Court’s Erie jurisprudence, explaining how the doctrine should operate when the putative class action was in federal court based on diversity jurisdiction and the courts of the state in which it was filed would apply a different rule. Finally, we discuss how CalPERS should have been decided if the Court had recognized the true nature of the American Pipe rule and if it had engaged the legislative history of the Securities Act rather than relying on labels.
Wednesday, January 16, 2019
Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Procedural Innovations to Address the Secrecy Problem in National Security Litigation. Pam reviews Shirin Sinnar’s recent article, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018).
Tuesday, January 15, 2019
Today the Supreme Court issued an 8-0 decision in New Prime Inc. v. Oliveira. Justice Gorsuch authors the opinion (Justice Kavanaugh did not participate).
The case involves § 1 of the Federal Arbitration Act, which provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” This provision
The Court addresses two questions. The first is: “When a contract delegates questions of arbitrability to an arbitrator, must a court leave disputes over the application of §1’s exception for the arbitrator to resolve?” [Op. at 1] The answer is no. “Given the statute’s terms and sequencing, we agree with the First Circuit that a court should decide for itself whether §1’s ‘contracts of employment’ exclusion applies before ordering arbitration.” [Op. at 4 (emphasis added)]
The second question is: “[D]oes the term ‘contracts of employment’ refer only to contracts between employers and employees, or does it also reach contracts with independent contractors?” [Op. at 1] The answer is that contracts with independent contractors can also be excluded from the FAA. Justice Gorsuch reasoned that “Congress used the term ‘contracts of employment’ in a broad sense to capture any contract for the performance of work by workers,” [Op. at 10 (emphasis in original)], and that the term ‘workers’ “easily embraces independent contractors.” [Op. at 10]
This part of Justice Gorsuch’s opinion emphasizes that statutory terms “generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.” [Op. at 6 (citation omitted)]. Justice Ginsburg writes a brief concurring opinion to stress that there may be some exceptions to this interpretive principle, because Congress “may design legislation to govern changing times and circumstances” [Ginsburg Op. at 1]. Her opinion notes that “sometimes, words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” [Ginsburg Op. at 2 (citation omitted)]
Friday, January 11, 2019
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Id. § 2000e-5(b), (f)(1).
The question presented is: Whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim-processing rule, as eight Circuits have held.
Tuesday, January 8, 2019
Today the Supreme Court issued a unanimous decision in Henry Schein, Inc. v. Archer & White Sales, Inc. Justice Kavanaugh’s opinion—his first on the Supreme Court—begins:
Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68−70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943−944 (1995).
Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.
Friday, January 4, 2019
Earlier this week, Chief Justice Roberts released his 2018 Year-End Report on the Federal Judiciary. It focuses on the report and recommendations issued by The Federal Judiciary Workplace Conduct Working Group earlier this year, and the steps the judiciary has taken toward implementing those recommendations.
Monday, December 24, 2018
The 2019 AALS Annual Meeting is happening in New Orleans next week. Here are a few panels that may be of interest (click the links for full details)…
Thursday, January 3, 2019
1:30 pm - 3:15 pm AALS Hot Topic Program
Partisan Conflict and the Legitimacy of the Supreme Court
3:30 pm - 5:15 pm Federal Courts
Teaching the Federal Courts Class
Friday, January 4, 2019
8:30 am - 10:15 am Conflict of Laws
The Hague Judgements Convention
9:00 am - 12:15 pm AALS Symposium
"Court Debt": Fines, Fees, and Bail, Circa 2020
10:30 am - 12:15 pm Federal Courts
Congressional Structuring of the Judicial Power
1:30 pm - 3:15 pm Litigation, Co-Sponsored by Alternative Dispute Resolution and Technology, Law and Legal Education
Artificial Intelligence and Litigation
Saturday, January 5, 2019
10:30 am - 12:15 pm AALS Program
#MeToo - The Courts, The Academy and Law Firms
3:30 pm - 5:15 pm AALS Open Source Program
Hope to see folks there!
Friday, December 21, 2018
Alex Parkinson has published Behavioral Class Action Law, 65 UCLA L. Rev. 1090 (2018). Here’s the abstract:
Behavioral law and economics has been deployed to analyze nearly every field of law. Class action practice and procedure is a notable exception. This Article is the first to supplement stagnating class action debates and the traditional law and economics account of class action law with behavioral psychology. It draws on a litany of behavioral tendencies, biases, and pathologies— ranging from prospect theory, loss aversion, anchoring, and the status quo bias to the availability heuristic, group-attribution error, reactive devaluation, and the endowment effect—and considers their application to class action practice generally and Rule 23 in particular. In addition to this descriptive survey, this Article makes three contributions to class action scholarship. First, it applies behavioral psychology to an unresolved puzzle: how to explain opt-out rights. Traditional law and economics cannot explain why Rule 23 permits absent class members to opt-out of certain class actions, which appears inefficient and dependent on irrational behavior, or why this opt-out right is exercised according to predictably irrational patterns. However, behavioral law and economics fills these analytical gaps. Second, this Article demonstrates the prescriptive power of behavioral law and economics by illustrating how absent class members can be nudged toward class settlement by self-interested choice architects. Finally, this Article crystallizes the judicial role in light of the potency of behavioral psychology, choice architecture, and nudging in class settlement notices.
Thursday, December 20, 2018
Campos on the Bolch Judicial Institute’s Guidelines and Best Practices for Implementing the 2018 Amendments to FRCP 23
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Practice Makes Perfect. Sergio reviews Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions, which was published in 2018 by the Bolch Judicial Institute at Duke Law School.
Wednesday, December 19, 2018
Diego Zambrano has published Judicial Mistakes in Discovery, 113 Nw. U. L. Rev. 197 (2018). Here’s the abstract:
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Friday, December 14, 2018
Joseph Seiner (South Carolina) has posted a new article on SSRN: The Discrimination Presumption, 94 Notre Dame L. Rev. __ (2019) (Forthcoming). This piece offers a new approach to pleading employment discrimination cases given recent social science research in the area.
Here is the abstract:
Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.
Thursday, December 13, 2018
Allan Erbsen has posted on SSRN a draft of his essay, Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction, 128 Yale L.J. F. __ (forthcoming 2019). Here’s the abstract:
This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law. The Supreme Court’s 2018 decision in South Dakota v. Wayfair held that the Commerce Clause permits enforcement of sales taxes against online retailers with no physical presence in the taxing state. In contrast, the Court’s 2011 decision in J. McIntyre Machinery v. Nicastro held that the Due Process Clause prevents states from exercising personal jurisdiction over nonresident manufacturers who did not target the forum. Wayfair and Nicastro address conceptually similar questions about extraterritorial enforcement of state law yet rely on inconsistent assumptions. A close reading of Wayfair illuminates normative and practical insights that warrant narrowing or overruling Nicastro. More generally, this Essay highlights how situating doctrinal problems in the broader context of horizontal federalism can improve constitutional analysis.