Friday, March 11, 2022

Texas Supreme Court Decision on S.B. 8

This morning, the Supreme Court of Texas issued its decision in Whole Woman’s Health v. Jackson. It is the latest development in the litigation over Texas’s abortion law, S.B. 8. After the U.S. Supreme Court’s decisions in December (covered here), the Fifth Circuit certified to the Texas Supreme Court the following question, which implicates one narrow path for challenging S.B. 8 that the U.S. Supreme Court left open:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207, and 171.208(a) of the Texas Health and Safety Code.

23 F.4th 380, 389 (5th Cir. 2022).

In today’s opinion by Justice Boyd, the Texas Supreme Court gives the following answer:

Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly. We answer the Fifth Circuit’s certified question No.

 

 

 

March 11, 2022 in Recent Decisions, State Courts | Permalink | Comments (0)

Monday, March 7, 2022

Hiring Announcement: Alabama Law Seeks Civil Procedure Visitor

The University of Alabama is hiring a visitor to cover civil procedure next year. The visit can be for either the fall 2022 semester or the full 2022-2023 academic year. Here is the announcement:

The University of Alabama School of Law is seeking a visiting faculty member for a podium visit in the fall 2022 semester to teach Civil Procedure (4 credit hours) in the first-year required curriculum. Faculty members from ABA-accredited law schools are welcome to apply. Qualified applicants not currently affiliated with a law school will also be considered, in which case salary will be commensurate with experience and qualifications.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  There is also an option to structure the visit for the full 2022-23 academic year.  For a year-long visit, teaching responsibility during the spring semester of 2023 is negotiable.  In either case, instruction will be in-person at the School of Law in Tuscaloosa, Alabama.  Compensation for this visit will include support for housing and a “bonus stipend” for the visiting scholar in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community.

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at glee@law.ua.edu.

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at glee@law.ua.edu.

Review of materials and nominations will begin immediately and will continue until the position is filled. 

 

 

 

March 7, 2022 | Permalink | Comments (0)

Friday, March 4, 2022

A Busy Couple of Days at SCOTUS: Intervention, the State Secrets Privilege, and the State Secrets Privilege

The Supreme Court handed down several opinions today and yesterday, including one case on intervention and two cases on the state secrets privilege.

In Cameron v. EMW Women’s Surgical Center, the Court reversed the Sixth Circuit’s denial of the Kentucky attorney general’s motion to intervene on appeal in a case challenging the constitutionality of a Kentucky abortion law. Justice Alito wrote the majority opinion, from which Justice Sotomayor dissented. Justices Kagan and Breyer did not join the majority opinion, but concurred in the judgment in an opinion authored by Justice Kagan.

In United States v. Zubaydah, a fractured Court found that the state secrets privilege blocked a Guantánamo Bay detainee’s discovery request under 28 U.S.C. § 1782 seeking to obtain information to use in Polish litigation regarding his treatment at a CIA detention cite; it therefore reversed the Ninth Circuit’s ruling that former CIA contractors could be required to confirm the location of the site. Here’s the headcount:

BREYER, J., delivered the opinion of the Court, except as to Parts II– B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all but Parts III and IV and the judgment of dismissal, and THOMAS and ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO, J., joined. KAVANAUGH, J., filed an opinion concurring in part, in which BARRETT, J., joined. KAGAN, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

And in FBI v. Fazaga, the Court unanimously held that § 1806(f) of the Foreign Intelligence Surveillance Act did not “eliminate, curtail, or modify” the state secrets privilege. Justice Alito authored the opinion of the Court, which remanded the case for lower courts to decide whether the state secrets privilege applied and whether dismissal of the plaintiffs’ claims was warranted.

 

 

 

March 4, 2022 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, February 28, 2022

Erbsen on Bookman & Shanahan on Civil Procedure Without Lawyers

Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Civil Procedure for Lawyerless Courts. Allan reviews Pamela Bookman & Colleen Shanahan’s recent article, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022).

 

 

February 28, 2022 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, February 22, 2022

SCOTUS Cert Grant on Equitable Tolling: Arellano v. McDonough

Today the Supreme Court granted certiorari in Arellano v. McDonough, which involves the effect of Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), on applications for veterans’ disability benefits. Here are the questions presented:

(1) Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?

(2) If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?

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

 

 

 

 

February 22, 2022 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, February 11, 2022

Smith on Citron & Solove on Privacy Law and Judicial Remedies

Today on the Courts Law section of JOTWELL is Fred Smith’s essay, No Harm, No Foul? Privacy Law and Judicial Remedies. Fred reviews Danielle Citron and Dan Solove’s recent article, Privacy Harms, 102 B.U. L. Rev. (forthcoming 2022).

 

 

 

 

February 11, 2022 in Federal Courts, Recent Scholarship, Standing, Weblogs | Permalink | Comments (0)

Tuesday, February 8, 2022

SCOTUS Stays Lower Court Order to Revise Alabama’s Congressional Redistricting Plan

Yesterday, the Supreme Court issued a decision in Merrill v. Milligan and Merrill v. Caster. By a 5-4 vote, the Court stayed the three-judge district court’s order, which had found that Alabama’s redistricting plan violated Section 2 of the Voting Rights Act and must be revised for the 2022 election. The Supreme Court noted probable jurisdiction in Merrill and granted certiorari before judgment in Caster, setting up both cases to be argued on the merits but allowing the challenged redistricting plan to be used in the 2022 election.

Justice Kavanaugh, joined by Justice Alito, wrote an opinion concurring in the stay grant.

Chief Justice Roberts and Justice Kagan (the latter joined by Justices Breyer and Sotomayor) each wrote opinions dissenting from the stay grant.

 

 

 

 

February 8, 2022 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, January 28, 2022

Klonoff on COVID-19 Aggregate Litigation

Bob Klonoff has posted on SSRN a draft of his article, COVID-19 Aggregate Litigation: The Search for the Upstream Wrongdoer, which is forthcoming in the Fordham Law Review. Here’s the abstract:

COVID-19 has generated many lawsuits—including thousands of class actions—in which the plaintiffs claim that the defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely—as they do in non-COVID cases—on whether the defendant has breached clear contractual commitments or engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID context, recognizing that everyone has suffered from COVID and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. Because of space limitations, this article focuses primarily on three categories of cases that have already generated numerous rulings: business interruption insurance claims; tuition reimbursement actions; and suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require “physical loss or damage” to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success—with many (but not all) courts granting motions to dismiss after finding no contractual commitment to in-person teaching. At the other end is the category of cases raising COVID health and safety issues at prison and immigration detention facilities; on the merits this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID or the large numbers of claims. After discussing the three-above categories, this article also briefly examines: (1) consumer, labor, and securities fraud COVID-related cases; (2) COVID cases involving arbitration clauses and class action waivers; and (3) the handful of classwide settlements thus far in COVID-related litigation.

 

 

 

January 28, 2022 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Thursday, January 27, 2022

Effron on Sudeall & Pasciuti on Eviction Court

Today on the Courts Law section of JOTWELL is Robin Effron’s essay, “Day-in-Court Theater” in Eviction Court. Robin reviews Lauren Sudeall & Daniel Pasciuti’s recent article, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365 (2021).

 

 

 

 

January 27, 2022 in Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)

Monday, January 24, 2022

SCOTUS Cert Grant on Jurisdiction over Constitutional Challenges to the FTC

Today the Supreme Court granted certiorari in Axon Enterprise, Inc. v. FTC, which presents the following question: “Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to ‘affirm, enforce, modify, or set aside’ the Commission’s cease-and-desist orders.”

The Court limited the cert. grant to this issue only, declining to address a second question regarding the constitutionality of the FTC’s structure regarding administrative law judges.

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

 

 

 

January 24, 2022 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, January 10, 2022

Kalajdzic on Freer on Class Actions and the Roberts Court

Today on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, The Roberts Court’s Legacy in Class Action Jurisprudence. Jasminka reviews Rich Freer’s recent article, The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done, 51 Stetson L. Rev. (forthcoming 2022).

 

 

 

January 10, 2022 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

SCOTUS Cert Grant on FRCP 60(b): Kemp v. United States

Today the Supreme Court granted certiorari in Kemp v. United States. Here is the question presented, as laid out in the petition:

Federal Rule of Civil Procedure 60(b)(1) authorizes relief from final judgment based on “mistake,” as well as inadvertence, surprise, or excusable neglect.

The question presented is:

Whether Rule 60(b)(1) authorizes relief based on a district court’s error of law.

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

 

 

 

January 10, 2022 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, December 17, 2021

SDNY Vacates Bankruptcy Court Order Giving Immunity to Sackler Family

Yesterday, U.S. District Judge Colleen McMahon (S.D.N.Y.) issued a decision vacating the bankruptcy judge’s earlier order (covered here) that had given individual members of the Sackler Family immunity from civil lawsuits relating to the opioid epidemic. Here are some excerpts from the opinion’s introduction:

The Plan confirmed by the Bankruptcy Court extinguishes all civil claims against the Sacklers that relate in any way to the operations of Purdue – including claims on which certain members of the Sackler family could be held personally liable to entities other than Purdue (principally the various states). These claims could not be released if the Sacklers were themselves debtors in bankruptcy.  ***

The great unsettled question in this case is whether the Bankruptcy Court – or any court – is statutorily authorized to grant such releases. This issue has split the federal Circuits for decades. While the Circuits that say no are united in their reasoning, the Circuits that say yes offer various justifications for their conclusions. And – crucially for this case – although the Second Circuit identified the question as open back in 2005, it has not yet had occasion to analyze the issue. Its only guidance to the lower courts, uttered in that 2005 opinion, is this: because statutory authority is questionable and such releases can be abused, they should be granted sparingly and only in “unique” cases. ***

Aided by superb briefing and argument on both sides of the question, and by extended ruminations on the subject by several esteemed bankruptcy judges of our own District – Judge Drain not the least – this Court concludes that the Bankruptcy Code does not authorize such nonconsensual non-debtor releases: not in its express text (which is conceded); not in its silence (which is disputed); and not in any section or sections of the Bankruptcy Code that, read singly or together, purport to confer generalized or “residual” powers on a court sitting in bankruptcy.

Download In re Purdue Pharma 12-16-21

 

December 17, 2021 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Thursday, December 16, 2021

SCOTUS Cert Grants: Torres v. Texas Department of Public Safety; Viking River Cruises v. Moriana

The Supreme Court granted certiorari yesterday in two interesting cases.

Torres v. Texas Department of Public Safety involves the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). It presents the question “whether Congress has the power to authorize suits against nonconsenting states pursuant to its War Powers.”

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

Viking River Cruises, Inc. v. Moriana involves the effect of the Federal Arbitration Act on the California Private Attorneys General Act (“PAGA”). It presents the question: “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

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

 

 

 

 

December 16, 2021 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, December 13, 2021

Call for Papers: Seventh Annual Civil Procedure Workshop (Cardozo Law School, May 19-20, 2022)

Here is the call for papers for the Seventh Annual Civil Procedure Workshop, courtesy of Alex Reinert and Myriam Gilles:

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.  

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 2020 include Pamela Bookman, Maureen Carroll, Zachary Clopton, Brooke Coleman, Myriam Gilles, David Marcus, Elizabeth Porter, Alexander Reinert, and Diego Zambrano. 

We welcome all civil procedure scholars to attend. Please register for the conference here (if the link does not work please use the following address: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop).  Those wishing to present a paper for discussion should submit a two-page abstract by February 11, 2022, using the same registration site: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop.  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 March 18, 2022.

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. If you have any questions, please feel free to contact Alex Reinert (areinert@yu.edu) or Myriam Gilles (gilles@yu.edu).

 

Download CPW7 Call for Papers 12.10.21

 

 

December 13, 2021 in Conferences/Symposia | Permalink | Comments (0)

Friday, December 10, 2021

SCOTUS Cert Grants on Arbitration

The Supreme Court followed up today’s decisions in the Texas abortion cases with some interesting grants of certiorari on arbitration.

Southwest Airlines Co. v. Saxon presents the question: “Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate ‘transportation workers’ exempt from the Federal Arbitration Act.” You can find the cert-stage briefing in Southwest—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

The Court also granted certiorari in two cases—which it proceeded to consolidate—that raise an issue regarding the relationship between 28 U.S.C. § 1782(a) and arbitration. (The Court had already granted certiorari on this issue in an earlier case, but that case was taken off the calendar back in September). The two new cases are:

ZF Automotive US, Inc. v. Luxshare, Ltd., which presents the question: “Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in ‘a foreign or international tribunal,’ encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the Fourth and Sixth Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits have held.”

AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, which presents the question: “Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a ‘foreign or international tribunal’ under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.”

Here are the SCOTUSblog links for ZF Automotive and AlixPartners.

And here are the Supreme Court website links for ZF Automotive and AlixPartners.

 

 

 

 

 

December 10, 2021 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Decisions in Texas Abortion Cases: United States v. Texas and Whole Woman's Health v. Jackson

Today the Supreme Court issued its decisions in two cases involving Texas’s abortion law, S.B. 8 (covered earlier here).

In United States v. Texas, the Court issued a one-page per curiam order dismissing the writ of certiorari as improvidently granted and denying the application to vacate the stay. Justice Sotomayor dissents.

In Whole Woman’s Health v. Jackson, the Court issued a fractured decision that does permit some of the abortion providers’ claims to go forward. Here’s the headcount for the various opinions:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.

Part IV of Justice Gorsuch’s opinion provides this summary:

The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.

 

 

December 10, 2021 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, December 3, 2021

Bookman on Summers on Eviction Procedure As Civil Probation

Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Circumventing Procedure in Eviction Court. Pam reviews Nicole Summers’ recent article, Civil Probation.

 

 

 

December 3, 2021 in Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)

Friday, November 26, 2021

Another SCOTUS Cert Grant on Intervention: Berger v. North Carolina State Conference of the NAACP

This week the Supreme Court granted certiorari in Berger v. North Carolina State Conference of the NAACP, which presents the following questions:

  1. Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.
  1. Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion.
  1. Whether Petitioners are entitled to intervene as of right in this litigation.

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

 

 

 

 

 

November 26, 2021 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, November 18, 2021

Michalski on Burch & Williams on MDL Litigation

Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, In a Different Voice. Roger reviews a recent article by Beth Burch and Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, Cornell L. Rev. (forthcoming 2022).

 

 

 

November 18, 2021 in Federal Courts, MDLs, Recent Scholarship, Weblogs | Permalink | Comments (0)