Monday, September 20, 2021
Today on the Courts Law section of JOTWELL is my essay, Standing for Something More: Respect and Article III. I review a recent article by Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021).
Friday, September 3, 2021
Tuesday, August 10, 2021
Adam Zimmerman has posted on SSRN a draft of his article The Class Appeal, which will be published in the University of Chicago Law Review. Here’s the abstract:
For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.
This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.
This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.
Wednesday, July 28, 2021
There’s still time to submit papers for the next installment of the Civil Procedure Workshop’s online works-in-progress series, which is happening on Thursday, August 12 (1:00-3:00pm eastern time). But you’ll need to act fast. Here’s a quick reminder from the organizers Pam Bookman, Brooke Coleman, and Dave Marcus:
If you would like to present a paper (regardless of what you indicated on the original form), please upload your paper using this form by Thursday, July 29. Please note that we will be putting presenters into groups on Friday, July 30, and so we will not be accepting late submissions. This is meant to be a real workshop format, so feel free to submit earlier stage drafts. However long your submission is, please include a note on the document you submit identifying the 10 pages that readers should focus on in anticipation of the presentation. The original post is reprinted below.
Here’s the initial announcement, which includes the registration link:
The organizers of the Civil Procedure Workshop (“CPW”), an annual gathering of civil procedure scholars, look forward to an in-person gathering at Northwestern University in May 2022. In the meanwhile, we invite all interested in civil procedure scholarship to participate in an online works-in-progress series the CPW has scheduled for July 15, 2021, and August 12, 2021. Both sessions will proceed from 1:00-3:00 pm east coast. Anyone who wishes to present a paper on a topic related to civil procedure is welcome and encouraged to do so. We will organize participants into small discussion groups, to enable all authors to present their work and receive feedback from colleagues.
Authors are encouraged to present their work in whatever form it takes. Full drafts are welcome, but so too are shorter summaries or partially completed papers.
Those who do not wish to present their work are also encouraged to attend. We hope that these sessions will give colleagues a chance to gather, if only online, and continue to support our national community of procedure scholars that many of us enjoy so much.
Please register for the works-in-progress series here.
You are encouraged to attend both sessions and are welcome to present at one, both, or neither. If you plan to present your work, we ask that you submit your paper to the organizers by July 1, 2021, for the July 15 session, and by July 29, 2021, for the August 12 session, to give organizers a chance to assemble groups and distribute papers to participants. If you are presenting a full draft, we ask that you also identify a ten-page excerpt that readers can particularly focus on in advance of the discussions.
Hope to see y’all there!
Tuesday, July 27, 2021
Law & Contemporary Problems Issue in Honor of Francis McGovern: Innovations in Complex Litigation and Settlement
Duke’s Law & Contemporary Problems has published an issue in honor of Francis McGovern, Innovations in Complex Litigation and Settlement. Here are the details and links to the symposium contributions:
Monday, July 26, 2021
Here is the announcement:
The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2022 AALS Annual Meeting.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2021 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2021), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Leah Litman at the University of Michigan Law School (email@example.com). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2021. Nominations will be reviewed by a prize committee comprised of Professors Curt Bradley (University of Chicago), Maggie Gardner (Cornell), Leah Litman (Michigan), Joanna Schwartz (UCLA), and Diego Zambrano (Stanford), with the result announced at the Federal Courts section program at the 2022 AALS Annual Meeting.
Friday, July 23, 2021
Now on the Courts Law section of JOTWELL is Richard Re’s essay, A Rule Against Fun. Richard reviews Nina Varsava’s recent article, Professional Irresponsibility and Judicial Opinions, which is forthcoming in the Houston Law Review.
Wednesday, June 30, 2021
Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials (Pound Civil Justice Institute Webcast, 7/17/2021)
The Pound Civil Justice Institute’s 2021 Forum for State Appellate Court Judges will be held by webcast on Saturday, July 17 (11:00 am – 5:30 pm EDT). The topic is “Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials,” and it will feature papers by Valerie Hans and Shari Diamond.
Academics who wish to attend can register here (deadline: July 8). Here is the full program:
Wednesday, June 23, 2021
Today on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Paths to Comprehensive Entity Liability in Constitutional Litigation. Howard reviews two recent articles by Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. (forthcoming 2021), and Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. (forthcoming 2022).
Wednesday, June 9, 2021
Today on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure. Suzette reviews Norman Spaulding’s recent article, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021).
Thursday, May 20, 2021
Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Procedural Evolution in Multidistrict Litigation. Allan reviews Abbe Gluck & Beth Burch’s recent article, MDL Revolution, 96 N.Y.U. L. Rev. 1 (2021).
Friday, April 23, 2021
Thursday, April 8, 2021
Now on the Courts Law section of JOTWELL is Suja Thomas’s essay, Should the Rules Committees be Remade? Suja reviews Brooke Coleman’s recent article, #SoWhiteMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020).
Friday, March 26, 2021
Now on the Courts Law section of JOTWELL is Jasminka Kalajdzic’s essay, AI & the End of Lawyers… Defeating Class Certification. Jasminka reviews Peter Salib’s recent article, Artificially Intelligent Class Actions, Tex. L. Rev. (forthcoming).
Tuesday, March 23, 2021
The final version of my article, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1, is now posted. It tackles the question of what standard of review appellate courts should use for findings made by civil juries. There’s a fair amount of confusion on this issue, because some appellate courts have conflated it with the framework for choosing the standard of appellate review for rulings by lower court judges. (The confusion is not helped by the extent to which the often elusive distinction between “law” and “fact” plays a role.)
This is also an issue that the Supreme Court is considering right now in Google LLC v. Oracle America, Inc., a $9 billion lawsuit about Google’s use of Java programming code to develop its Android operating system. SCOTUS issued a specific order asking the parties to brief the appropriate standard of review for the jury’s verdict in favor of Google on its fair use defense. The Google case was argued at the beginning of this Term but is still awaiting a decision—here are some of my thoughts on the case from back in October after the oral argument: SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts.
I enjoyed working on this piece, and I hope folks find it helpful. Special thanks to the great editors at the Wisconsin Law Review, who did a fantastic and timely job getting the article finalized—maybe even in time for SCOTUS to read it! Here’s the full abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
Tuesday, March 9, 2021
Ann Woolhandler and Julia Mahoney have posted on SSRN a draft of their article, Federal Courts and Takings Litigation. Here’s the abstract:
Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court.
While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.
Sunday, March 7, 2021
Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, Conflict Scholarship in Partisan Times. Roger reviews Symeon Symeonides’ Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. (forthcoming 2021).
Thursday, February 18, 2021
Today on the Courts Law section of JOTWELL is Lou Mulligan’s essay, What Does a Textualist Look Like? Lou reviews a recent article by Thom Main, Jeff Stempel & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism.
Jeff Parness has posted Proposed Amendment to the Federal Civil Procedure Rule 27(c): Federal Presuit Information Preservation Orders on SSRN. Here’s the abstract:
Professor Jeffrey A. Parness submitted a proposed amendment to Federal Civil Procedure Rule 27(c) on November 13, 2020. It urged that federal civil procedure laws allowing presuit information preservation orders should be expanded in order to promote greater uniformity across the country and greater compliance with current substantive and procedural laws on the preservation duties involving civil litigation information. These new laws were said to be best placed in the Federal Rules of Civil Procedure. The proposal includes the rationales, some guidelines, and suggested language for a new FRCP 27(c). In particular, the proposal suggests the following language (additions underlined): "This rule does not limit a court's power to entertain an action to perpetuate testimony and an action involving presuit information preservation when necessary to secure the just, speedy, and inexpensive resolution of a possible later federal civil action."
Thursday, February 11, 2021
I wanted to share a link to my recent article, Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020), which is now in print and available on SSRN. The piece is an effort to make sense of a topic that has been an area of frequent interest for the Supreme Court: For any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion? (In recent years the Court has granted cert to choose the standard of appellate review for a wide array of issues, ranging from a child’s habitual residence under the Hague Convention, to a creditor’s insider status under federal bankruptcy law, to whether to enforce an EEOC subpoena, to whether to award attorney fees in a patent case.)
The article digs into the how and why of the Court’s framework for making this choice, and I ultimately argue that we should scrap the enterprise of assigning distinct standards of appellate review on an issue-by-issue basis. It’s not because the concerns that animate the Court’s approach are unimportant. Rather, it’s because the purposes of appellate review—principally, error correction and law clarification—are better served by a uniform template for review that informs the substantive merits of every appellate decision. As I put it in the abstract:
The error-correction role of appellate courts would be optimized by a unified inquiry into whether the appellate court’s likelihood of reaching the correct decision is higher than the trial court’s. This new standard would consider both general institutional advantages (such as the trial court’s superior ability to assess witness credibility) and case-specific indicia of correctness (such as the appellate court’s level of confidence or particular strengths or weaknesses in the trial court’s analysis). This inquiry can be joined with the Supreme Court’s long-standing view that appellate courts may always correct legal errors de novo, regardless of the broader standard of review that applies to a particular issue. That power to correct legal errors, combined with the ability to identify conditions that increase or decrease the likelihood that a court’s decision on a particular issue is correct, would enhance the law-clarification function of appellate decisions.
I touch on other issues as well, including the expenditure of appellate court energy, appellate review of constitutional issues and so-called “legislative facts,” the possibility of asymmetric appellate review, and what even constitutes a “legal error” anyway? This was a fun piece to write (notwithstanding the math in it), and I had a great experience working with the editors in Bloomington during a very unusual time. Thanks again!