Wednesday, August 22, 2018
Friday, August 17, 2018
Deadline: October 10, 2018
Event Date: February 7-9, 2019
Location: Brigham Young University, Provo, UT
Organization: Brigham Young University
Contact: James Heilpern, firstname.lastname@example.org
BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.
The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at email@example.com.
Thursday, August 16, 2018
This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”
You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.
The period to submit written comments on the proposed amendments runs until February 15, 2019.
You can find more information about submitting written comments and presenting testimony at public hearings here.
Tuesday, August 14, 2018
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Why Military Justice Doesn’t Get Enough Academic Attention. Steve reviews Rodrigo Caruço’s recent article, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016).
Friday, August 10, 2018
Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).
Here's the tweet effecting service:
Here's the court's order (from earlier this week) authorizing service via Twitter:
Here's the plaintiff's motion:
Wednesday, August 8, 2018
Yesterday the Ninth Circuit issued its decision in Rodriguez v. Swartz. It’s a particularly interesting case in light of the Supreme Court’s recent decisions in Ziglar v. Abbasi and Hernandez v. Mesa.
By a 2-1 vote, the panel affirmed the district court’s refusal to dismiss a claim against a U.S. Border Patrol agent who, while standing on American soil, shot and killed a teenage Mexican citizen who was walking down a street in Mexico. (In the interest of full disclosure, I joined an amicus brief on behalf of law professors in support of the plaintiff-appellee.)
Judge Andrew Kleinfeld’s majority opinion concludes:
Under the particular set of facts alleged in this case, Swartz is not entitled to qualified immunity. The Fourth Amendment applies here. No reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. And despite our reluctance to extend Bivens, we do so here: no other adequate remedy is available, there is no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either do not apply or counsel in favor of extending Bivens.
Of course, the facts as pleaded may turn out to be unsupported. When all of the facts have been exposed, the shooting may turn out to have been excusable or justified. There is and can be no general rule against the use of deadly force by Border Patrol agents. But in the procedural context of this case, we must take the facts as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case.
Judge Milan Smith dissented, arguing that no Bivens action was available.
Tuesday, August 7, 2018
Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:
By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.
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.
Monday, August 6, 2018
Andy Hessick has published Consenting to Adjudication Outside the Article III Courts, 71 Vand. L. Rev. 715 (2018). Here’s the abstract:
Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.
Tuesday, July 31, 2018
Suzette Malveaux has published The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 U. Kan. L. Rev. 325 (2017). Here’s the abstract:
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.
First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.
Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.
Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.
Monday, July 30, 2018
Jonah Gelbach & Dave Marcus have published Rethinking Judicial Review of High Volume Agency Adjudication, 96 Tex. L. Rev. 1097 (2018). Here’s the abstract:
Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief—the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.
We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.” These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.
This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument builds on a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly and a court system attempting to help this agency improve.
Friday, July 27, 2018
Earlier this year the Ninth Circuit issued a 2-1 decision in In re Hyundai and Kia Fuel Economy Litigation. The panel reversed the district court’s certification of a settlement class involving claims against Hyundai and Kia over their vehicles’ fuel efficiency. The decision was particularly controversial because of the majority’s choice-of-law analysis and its potential impact on certifying nationwide classes.
Today the full Ninth Circuit granted en banc rehearing.
Oral argument is scheduled for the week of September 24, 2018.
Thursday, July 26, 2018
SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census
Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:
Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.
In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.
In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:
For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.
The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:
Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.
Wednesday, July 25, 2018
Monday, July 23, 2018
Rye Murphy has published Competing Ideologies at the Formation of the Federal Class Action Rule: Legal Process Versus Legal Liberalism, 10 Drexel L. Rev. 389 (2018). Here’s the abstract:
In 1966, the Supreme Court promulgated a new procedural rule for class actions in federal court. Amended Rule 23 was a considerably different mechanism than its predecessor. It was more inviting of class action litigation but also incorporated new mechanisms for protecting class members. This was not an unreasonable trade-off, and one can imagine a group of rule-makers—elite academics, federal judges, prestigious attorneys—peaceably striving to write a rule that could balance individual class members’ interests with the interests of the class as a whole. But this is not what happened. The Rule 23 of today is an accord between two rival sects of mid-century legal thinking. The Legal Process tradition considered federal courts one of many institutions in society for mediating conflict, though the one uniquely capable of employing neutral reasoning to do so. Harvard Law School professors Benjamin Kaplan and Albert Sacks argued that a flexible, robust class action rule was needed to solve the complex, large-scale problems American society was increasingly facing. Attorney John P. Frank, a litigator and civil libertarian, fought vigorously against anything but the narrowest rule. Legal liberalism, Frank’s camp, tended to view federal courts in their capacity to enforce substantive principles, and Frank argued that the Constitution and American legal tradition forbade a rule that might deprive an individual of the opportunity to litigate her own interests. It was a duty of the rule-maker, for Frank, not to enact a rule that would violate what he identified as a principle of individualized adjudication. The balance the current rule strikes, including the opt-out mechanism, is a product of their compromise.
Friday, July 20, 2018
Michael Kagan, Rebecca Gill & Fatma Marouf have published Invisible Adjudication in the U.S. Courts of Appeals, 106 Geo. L.J. 683 (2018). Here’s the abstract:
Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many—and in a few circuits, most—decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system.
Thursday, July 19, 2018
Matthew Shapiro has published Delegating Procedure, 118 Colum. L. Rev. 983 (2018). Here’s the abstract:
The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.
This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.
Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.
Wednesday, July 18, 2018
This week the Sixth Circuit decided Martin v. Behr Dayton Thermal Products, affirming the district court’s decision to certify various issues for class treatment under Rule 23(c)(4). The court sided with what it called “the broad view” of the relationship between Rule 23(b)(3)’s requirements and issue class actions under Rule 23(c)(4). From Judge Stranch’s opinion:
Under what is known as the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment under Rule 23(c)(4). The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.
After reviewing the circuit split over this question, the opinion concludes:
In sum, Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution. See Nassau, 461 F.3d at 226; Fed. R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend. A requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. The broad approach is the proper reading of Rule 23, in light of the goals of that rule.
Thursday, July 12, 2018
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, A Step Toward a Proper Understanding of Constitutional Litigation. Howard reviews Jonathan Mitchell’s recent article, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018).