Friday, May 13, 2022
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Data-Driven Procedural Inequality. Brooke reviews Danya Reda’s recent article, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. (forthcoming 2023).
Thursday, May 5, 2022
Last year, the Alabama Law Review hosted a virtual symposium entitled Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The symposium issue is now posted:
Maggie Gardner, Pamela K. Bookman, Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave, The False Promise of General Jurisdiction, 73 Ala. L. Rev. 455 (2022).
Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483 (2022).
Alexandra D. Lahav, The New Privity in Personal Jurisdiction, 73 Ala. L. Rev. 539 (2022).
Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583 (2022).
A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Advisory Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607 (2022).
Gregory C. Cook & Andrew Ross D’Entremont, No End in Sight? Navigating the “Vast Terrain” of Personal Jurisdiction in Social Media Cases After Ford, 73 Ala. L. Rev. 621 (2022).
David G. Wirtes, Jr. & Christy Ward Rue, Combating Weaponized Challenges to Personal Jurisdiction, 73 Ala. L. Rev. 661 (2022).
Thanks to everyone who participated! Very excited to see the contributions in print.
Tuesday, April 19, 2022
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Talking the Talk to Walk the Walk. Sergio reviews recent congressional testimony by Myriam Gilles, Justice Restored: Forced Arbitration and the Erosion of our Legal System: Hearing on H.R. 963 Before the Subcomm. on Antitrust, Commercial, and Administrative Law, 117 Cong. __ (2021), and Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows: Hearing Before the H. Comm. on the Judiciary, 117 Cong. __ (2021).
Monday, April 4, 2022
Today on the Courts Law section of JOTWELL is Christine Bartholomew’s essay, A Post Minimum Contacts World. Christine reviews Patrick Borchers’ recent article Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era, 72 Case W. Res. L. Rev. 45 (2021).
Monday, March 21, 2022
Monday, February 28, 2022
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).
Friday, February 11, 2022
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).
Friday, January 28, 2022
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.
Thursday, January 27, 2022
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).
Monday, January 10, 2022
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).
Friday, December 3, 2021
Thursday, November 18, 2021
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).
Thursday, November 4, 2021
Wednesday, October 20, 2021
Today on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory. Linda reviews Luke Norris’s article, Neoliberal Civil Procedure, 12 U.C. Irvine L. Rev. (forthcoming 2022).
Wednesday, October 6, 2021
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Hiding Behind Habeas’s Hardness. Steve reviews Jonathan Siegel’s recent article, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022).
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: