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!
Thursday, February 4, 2021
Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Procedure Here, There, and Everywhere. Pamela reviews Alyssa King’s recent article, Global Civil Procedure, Harv. Int’l L.J. (forthcoming 2021).
Wednesday, January 27, 2021
Today on the Courts Law section of JOTWELL is Christine Bartholomew’s essay, The Reality of Class-Action Appeals. Christine reviews Bryan Lammon’s recent article, An Empirical Study of Class-Action Appeals.
Wednesday, January 6, 2021
Monday, December 28, 2020
The University of Chicago Law Review has published a special edition that is dedicated to the life and work of Seventh Circuit Judge (and civil procedure professor) Diane Wood. It features essays by Douglas Baird, Lee Anne Fennell, Tom Ginsburg, William Hubbard, Aziz Huq, Saul Levmore, Martha Nussbaum, Julie Roin, Lior Strahilevitz, and David Strauss.
Monday, December 21, 2020
The Pound Civil Justice Institute has published the report of its 2020 Judges Forum, Dangerous Secrets: Confronting Confidentiality in Our Public Courts. It features academic papers by Dustin Benham and Sergio Campos, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Friday, December 11, 2020
Today on the Courts Law section of JOTWELL is Maureen Carroll’s essay, Judges Behaving Badly… Then Slinking Away. Maureen reviews Veronica Root Martinez’s recent essay, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 953 (2020).
Friday, December 4, 2020
This week the Pound Civil Justice Institute announced the winners of its 2021 Civil Justice Scholarship Award: Sandra Sperino, Suja Thomas, and Mark Wojcik. From the announcement:
Professor Sperino, of the University of Cincinnati College of Law, and Professor Thomas, of the University of Illinois College of Law, are honored for their book, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press 2017), in which they examine the ways in which courts have impeded private enforcement of anti-discrimination laws through civil litigation.
Professor Wojcik, of UIC John Marshall Law School, is honored for his article, Extending Batson to Peremptory Challenges of Jurors Based on Sexual Orientation and Gender Identity, 40 No. Ill. U. L. Rev. 1 (2019), in which he argues that it is time to extend the U.S. Supreme Court’s decision in Batson v. Kentucky to all federal and state trial courts, and to prohibit expressly the exclusion of jurors based on their actual or perceived sexual orientation or gender identity.
High Distinction Honorees
The Institute also recognized two publications for high distinction among the 35 nominations received: Rights and Retrenchment: The Counterrevolution against Federal Litigation (Cambridge University Press 2017), in which Professors Stephen Burbank, of the University of Pennsylvania Law School, and Sean Farhang, of the University of California, Berkeley, examine responses to the “rights revolution” that unfolded in the United States during the 1960s and 1970s, and trace the increasing hostility to the enforcement of rights through lawsuits; and The Trouble with Trial Times Limits, 106 Geo. L. J. 933 (2018), in which Professor Nora Freeman Engstrom, of Stanford Law School, examines an issue that is quietly and negatively affecting trials at a time when few cases go to trial. She looks at specific trials and data that demonstrate the random implementation of time limits of trials, and how they add additional limitations on plaintiffs.
Thursday, December 3, 2020
Rich Freer has posted on SSRN a draft of his article, "Defense Preclusion": Exploring a Narrow Gap in Preclusion Law, 40 Rev. Litig. (forthcoming 2021). Here's the abstract:
All litigators know something about claim and issue preclusion. But “defense preclusion” does not ring a bell, even for most civil procedure enthusiasts. Accordingly, the Supreme Court’s 2020 decision in Lucky Brand Dungarees v. Marcel Fashions Group was doubly surprising. Not only did the Court use the term “defense preclusion” for the first time; it also told us that the doctrine is vibrant enough to have generated a split of authority.
Defense preclusion fills a little-recognized gap in traditional preclusion doctrine. Claim preclusion requires a claimant to seek, in Case 1, all rights to relief encompassed in the claim asserted. If that claimant brings Case 2 on the same claim, the doctrine precludes her from seeking relief she could have sought in Case 1. But claim preclusion applies only to claimants, not defendants. Defense preclusion is the defendant analogue: it bars a defendant in Case 2 from asserting a defense she could have raised in Case 1.
Lucky Brand establishes that defense preclusion is occasionally appropriate but does not define the limits of the doctrine. My goals are to (1) define defense preclusion by situating it within the broader context of preclusion law and (2) outline the scope of the doctrine, based upon suggestions in Lucky Brand and core principles of preclusion. Defense preclusion is narrow, likely to arise only in cases involving a distinct minority approach to claim preclusion and particular types of contract claims.
Thursday, November 12, 2020
Today on the Courts Law section of JOTWELL is Marin Levy’s essay, The Status of Non-Binding Authority. Marin reviews Maggie Gardner’s article, Dangerous Citations, 95 N.Y.U. L. Rev. (forthcoming 2020), and Merritt McAlister’s article, Missing Decisions, 169 U. Pa. L. Rev. (forthcoming 2021).